Hill v. Breazeale

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 1, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-60069

RUSSELL KEITH HILL

Plaintiff - Appellant

v.

MARVIN E. BREAZEALE; CATHY TATUM, Jail Administrator for Lamar
County

Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Mississippi, Hattiesburg
USDC No. 2:02-CV-21

Before KING, GARWOOD, and JOLLY, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant, Russell K. Hill, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 claim, arguing that:

(1) the district court lacked jurisdiction over the case, (2) the

district court erred in denying his motion for recusal, and (3)

the summary judgment dismissal of his lawsuit was error. For the

following reasons, we AFFIRM the district court’s judgment.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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 I. FACTUAL AND PROCEDURAL BACKGROUND

Russell K. Hill filed a 42 U.S.C. § 1983 lawsuit against

Lamar County, Mississippi, Sheriff Marvin Breazeale, and Jail

Administrator Cathy Tatum (collectively, “the defendants”),

asserting that the defendants violated his constitutional rights

by providing him with inadequate medical care, subjecting him to

inhumane conditions of confinement, and denying him access to the

courts.

From September 2000 until January 2001, Hill was an inmate

at the Lamar County Jail. Hill’s complaint asserted he had a

pre-existing abscess when he was placed at the jail. Hill

requested a doctor. According to Hill’s testimony, after an

examination, the doctor told him the abscess had worsened, gave

him antibiotics, and informed him he should see a specialist.

Hill alleges that although the defendants said they had made

an appointment for him to see a specialist, no appointment was

actually made and the delay in medical care caused him injury.

Hill took the antibiotics for six months, but saw no improvement

in his condition. After Hill bonded out of jail, he saw a

doctor. When Hill returned to the Lamar County Jail in March

2001, a specialist examined him and concluded Hill had an

inflammation caused by excessive antibiotics.

The parties consented to proceed before a magistrate judge,

28 U.S.C. § 636(c), and the case was assigned to then Magistrate

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Judge Louis J. Guirola. Following a screening hearing1 on July

29, 2002, Magistrate Judge Guirola dismissed the conditions of

confinement and denial of access claims as frivolous. Because

the facts alleged by Hill were sufficient to state a claim for

inadequate medical care, Magistrate Judge Guirola ordered that

process be issued and on June 24, 2002, the defendants were

served. After the defendants answered the lawsuit, Judge Guirola

became a district judge. After Judge Guirola was sworn in,

according to docket entries, Hill’s case was reassigned twice,

once to District Judge Dan Russell, and then to District Judge

Guirola.

On July 9, 2004, the defendants served Hill with their first

set of interrogatories, requests for production, and requests for

admissions. Hill did not respond. On August 25, 2004, the

defendants filed a motion to compel responses to their

interrogatories and requests for production. Hill also failed to

respond to the motion to compel. Then, on August 31, 2004, the

defendants moved for summary judgment on the ground that the

requests for admission were deemed admitted when Hill did not

respond within 30 days and that the deemed admissions left no

material factual dispute for trial.

The district court issued a show-cause order on September

21, 2004, giving Hill ten days to show good cause for his failure

1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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to respond to the defendants’ motions to compel discovery and for

summary judgment. The next day, September 22, Hill filed a

“motion to show cause,” questioning why his case had not been

reassigned to a magistrate judge under § 636(c) and arguing that

the failure to reassign the case to a magistrate judge violated

his due process rights.

On October 6, 2004, Hill responded to the district court’s

show-cause order, asserting: (1) he had complied with the court’s

pretrial order by submitting his voluntary pretrial discovery

disclosures on July 20, 2004; (2) he had attempted to file

answers to the requests for admissions with the court on

September 7, 2004, but his filing had been returned to him by the

clerk of the court; and (3) he had not responded to the summary

judgment motion “because, I have better things to do than to

respond to lame, frivilous [sic] documents, generated for the

sole purpose of harassment.” Hill attached to his response a

copy of his answers to the requests for admissions, dated

September 1, 2004. Hill neither specifically admitted nor denied

the allegations as instructed, but stated in response to each

request for admission only, “no admissions.”

The district court dismissed Hill’s complaint on October 12,

2004, citing alternate grounds. The first ground was for failure

to prosecute, pursuant to FED. R. CIV. P. 41. The second ground

was that the complaint should be dismissed on summary judgment

because the requests for admissions were deemed admitted and no

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material factual dispute regarding the inadequate medical-care

claim remained. The court denied all pending motions, including

Hill’s September 22 “motion to show cause.”

Within ten days, Hill moved for reconsideration, pursuant to

FED. R. CIV. P. 59(e), asserting that the dismissal was error

because he had responded to the show-cause order on October 6,

2004 and included his response to the requests for admission in

that response. After his case was dismissed, Hill also filed a

motion for recusal with an attached affidavit, seeking to have

Judge Guirola recused on the ground of bias against Hill.

On October 27, 2004, the district court denied the recusal

motion as moot because the case had already been dismissed. It

later granted the motion for reconsideration in part, vacating

its prior dismissal on Rule 41, failure to prosecute grounds, but

denying the motion in part and granting summary judgment based on

Hill’s failure to timely respond to the requests for admission.

Hill filed a timely notice of appeal.

II. DISCUSSION

A. Jurisdiction

Hill argues that the district court lacked jurisdiction over

his case because he had consented to proceed before a magistrate

judge, not a district court judge. He contends that after Judge

Guirola became a district court judge, his case should have been

reassigned to a different magistrate judge rather than assigned

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to Judge Guirola as part of his district court docket, and that

the failure to do so violated his due process rights, the Federal

Rules of Civil Procedure, and 28 U.S.C. § 636. Additionally,

Hill argues he lost the right to appeal to a district court

because a district court judge issued the order granting final

judgment.

Taking the latter argument first, under 28 U.S.C.

§ 636(c)(1) and Rule 73(b) of the Federal Rules of Civil

Procedure, upon the consent of the parties, a magistrate judge

may exercise jurisdiction over all proceedings in the case. Once

consent is obtained, the magistrate assumes the duties of the

district court judge. A final judgment issued by a magistrate

judge pursuant to 28 U.S.C. § 636 is appealable directly to the

appropriate circuit court of appeals, not (as Hill seems to

think) a district court judge. 28 U.S.C. § 636(c)(3); FED. R.

CIV. P. 73(c). Hill’s assertion that he was deprived of an

appeal to a district court judge is without merit.

We turn next to Hill’s contention that the failure to

reassign the case to a new magistrate judge when Judge Guirola

was sworn in as a district court judge deprived the district

court of jurisdiction to enter final judgment. We disagree. The

parties were properly before the court and the claims

adjudicated, which fell under 42 U.S.C. § 1983, were within the

subject-matter jurisdiction of the federal district court. The

referral statute, 28 U.S.C. § 636(c)(4), specifically permits a

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district court on its own motion to vacate a reference to a

magistrate judge made under 28 U.S.C. § 636(c) when good cause is

shown. 28 U.S.C. § 636(c). See also FED. R. CIV. P. 73(b).

Under the circumstances, although Judge Guirola would not have

been required to vacate the referral, he was certainly permitted

to do so. Here, Judge Guirola impliedly and correctly found good

cause to vacate the referral on the basis that it would be more

efficient for him, being familiar with the specific facts and

circumstances of Hill’s case, to remain the judge than to assign

the case to a new magistrate judge who would lack the same

familiarity. A district court need not enter a separate order

vacating the referral to a magistrate judge under § 636(c)(4)

when the same individual to whom the case was assigned as a

magistrate judge is reassigned the case after becoming a district

judge; the docket entry sufficed.

B. Motion to Recuse

Hill also argues the district court erred in denying his

motion for recusal. A motion for recusal is committed to the

sound discretion of the trial judge. United States v. Merkt, 794

F.2d 950, 960 (5th Cir. 1986). We review the denial of a motion

for recusal for an abuse of discretion. United States v. MMR

Corp., 954 F.2d 1040, 1045 (5th Cir. 1992). If a party believes

that the judge assigned to hear his case cannot be impartial, the

party may move to disqualify or recuse the judge pursuant to 28

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U.S.C. § 144 or § 455.

Hill moved for recusal under 28 U.S.C. § 144. Under Section

144, a judge must reassign a case when a party “makes and files a

timely and sufficient affidavit that the judge before whom the

matter is pending has a personal bias or prejudice either against

him or in favor of any adverse party.” 28 U.S.C. § 144. Under

§ 144 the judge whose impartiality is being questioned must

determine the legal sufficiency and timeliness of the affidavit

but cannot rule on the substance of the matter alleged. United

States v. Miranne, 688 F.2d 980, 984-85 (5th Cir. 1982). A

legally sufficient affidavit must “state the facts and the

reasons for the belief that bias or prejudice exists” and be

timely. 28 U.S.C. § 144. The alleged bias or prejudice must be

personal and stem from an extrajudicial source which would result

in an opinion on the merits rather than on what the judge learned

from his participation in the case. United States v. Merkt, 794

F.2d 950, 960 (5th Cir. 1986).

A timely motion to recuse is one filed “at the earliest

moment after knowledge of the facts demonstrating the basis” for

the recusal. Travelers Ins. Co. v. Lilieberg Enters., Inc., 38

F.3d 1404, 1410 (5th Cir. 1994). Although there is no per se

untimeliness, the “most egregious delay” occurs when a party

knows the facts and circumstances that would lead to

disqualification of the judge but does not raise the issue of

recusal until after the judge makes an adverse decision. United

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States v. Sanford, 157 F.3d 987, 988 (5th Cir. 1998).

The district court did not abuse its discretion in denying

the motion to recuse. Because this is a § 144 motion, Judge

Guirola, the judge complained of, could review the affidavit for

timeliness and sufficiency. Hill’s motion to recuse was not

timely. He waited, for no given reason, to raise the issue until

after the district court ruled against him. Moreover, the facts

stated in the affidavit are not sufficient to support a recusal

motion. Id.2

C. Summary Judgment Dismissal

Hill also argues that the summary judgment dismissal of his

lawsuit was error. Summary judgment is reviewed de novo, under

the same standards used by the district court to determine

whether summary judgment is appropriate. Riverwood Intern Corp.

v. Employers Ins. of Wausau, 420 F.3d 378, 382 (5th Cir. 2005).

Summary judgment is proper when, viewing the evidence in the

light most favorable to the nonmovant, “there is no genuine issue

of any material fact” and the moving party is “entitled to

judgment as a matter of law.” Brooks, Tarlton, Gilbert, Douglas

& Kressler v. United States, 832 F.2d 1358, 1364; FED. R. CIV. P.

56(c).

2
The defendants also argue that order denying the motion
to recuse was valid because the affidavit attached to the motion
did not purport to be sworn. Because we held the district court
did not abuse its discretion by denying the motion to recuse, we
do not need to address this issue.

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 Once the moving party establishes that there is no genuine

issue, the burden shifts to the nonmoving party to produce

evidence of the existence of a genuine issue for trial. Celotex

Corp. v. Catrett, 477 U.S. 317, 321 (1986). The nonmoving party

cannot satisfy his summary judgment burden with conclusory

statements, speculation, and unsubstantiated assertions.

Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1429 (5th

Cir. 1996) (en banc).

Rule 36 of the Federal Rules provides that a matter

requested through an admission will be deemed admitted unless the

party to whom it is directed responds within thirty days after

service of the request. FED. R. CIV. P. 36(a). Any matter

admitted under Rule 36 is deemed conclusively established unless

the court permits withdrawal of the admission. FED. R. CIV. P.

36(b). Further, if the requests for admissions concern an

essential issue, the failure to respond to requests for admission

can lead to a grant of summary judgment against the non-

responding party. Dukes v. South Carolina Insurance Co., 770

F.2d 545, 548-49 (5th Cir. 1985).

The defendants properly served their request for admissions

and first set of interrogatories and requests for production of

documents on Hill on July 9, 2004. Although Hill asserts in his

appeal that he responded to those requests on July 20, 2004, the

record does not contain a response to the requests for admissions

dated then. The responses by Hill to the requests for admissions

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included in the recorded is dated September 1, 2004; however,

nothing in the record indicates they were received by the

defendants prior to October 6, 2004, when Hill filed his motion

to show cause.3 Because Hill failed to timely respond to the

defendants’ requests for admissions, the district court correctly

concluded that those matters were deemed admitted. Id. at 548-

49.

Hill argues that his responses to the requests for admission

were sufficient to prevent the matters from being deemed admitted

because responses of pro se litigants should be liberally

construed. We are not unsympathetic to the plight of a pro se

litigant attempting to proceed through the maze of filing

requirements and technical rules involved in a civil litigation.

Often, the court will overlook certain technical shortcomings in

a pro se litigant’s pleadings. See, e.g., Haines v. Kerner, 404

U.S. 519, 521 (1972) (holding that documents filed by pro se

litigants are held to “less stringent standards than formal

pleadings drafted by lawyers.”). In this case, however, we

cannot overlook Hill’s blatant disregard for deadlines and the

3
Hill apparently attempted to file a response to the
requests for admissions in the clerk’s office in early September
2004 after the defendants’ motion for summary judgment was filed.
A letter from the clerk’s office to Hill on September 7, 2004
directs Hill to send discovery responses to the party requesting
discovery. No evidence suggests that Hill then forwarded his
responses to the defendants.

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Federal Rules.4 After a careful review of the record, we

determine (as did the district court) that Hill was aware of the

importance of deadlines, but deliberately and selectively chose

to disregard certain deadlines. Hill responded timely to the

request for pretrial disclosures served the same day as the

requests for admissions but did not respond to the requests for

admissions. Hill continued his disregard by refusing to respond

to the defendants’ motion for summary judgment.

Hill’s § 1983 claim is that he was denied medical care while

a pretrial detainee. As a pretrial detainee, Hill’s rights flow

from the due process clause of the Fourteenth Amendment. Hare v.

City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996) (en

banc). The duty owed to pretrial detainees under the Due Process

Clause is measured under the subjective definition of deliberate

indifference. Id. at 648. To prevail on a § 1983 claim against

a jail official, a pretrial detainee must show that the defendant

“had subjective knowledge of a substantial risk of serious harm

to a pretrial detainee but responded with deliberate indifference

to that risk.” Id. at 650.

The requests for admissions that Hill failed to timely

4
In his response to the court’s show cause order, filed on
October 6, 2004, Hill addresses his failure to respond to the
motion for summary judgment by saying, “I don’t know what’s
cookin, but I will not respond to documents issued for the sole
purpose of harassment. If the Court wishes to dismiss the
proceedings on these frivilous [sic] filings, then my response
would have been futile . . .”

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respond to concerned the essential issues of this claim.5 These

deemed admissions conclusively establish that the defendants

engaged in no deliberate indifference to the plaintiff’s medical

needs. Thus, there would be no basis for Hill’s inadequate

medical care claim, and the district court’s summary judgment

dismissal of the claim was appropriate. See Celotex Corp., 477

U.S. at 321; Hare, 74 F.3d at 639; Dukes, 770 F.2d at 548-49.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

judgment.

5
The requests for admission asked Hill to admit or deny
that: (1) the medical condition underlying his complaint was
caused exclusively by his failure to follow medical advice; (2)
the medical condition was self-inflicted; (3) that there were no
facts which supported his claim against Breazeale; (4) that there
were no facts which supported his claim against Tatum; and (5)
that a registered nurse, Betty Bright, was available throughout
the time he was detained to provide medical treatment for persons
held at the Lamar County Jail.

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