Magistrate Judge Michael R. Merz
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
In this case Plaintiff Warren Easterling sued Jeffrey Sessions, the Attorney General of the United States, in an effort to have this Court compel the Attorney General to direct his "subordinate judges," The Honorable Thomas M. Rose and The Honorable Michael J. Newman, to take certain actions in cases pending before those Judges in this Court including 3:16-cv-340, 3:16-cv-375, and 3:16-cv-067. (Complaint, ECF No. 3). Upon initial review prior to issuance of process, the undersigned, to whom the case had been randomly assigned by the Clerk, filed a Report and Recommendations recommending the case be dismissed with prejudice because neither Judge Rose nor Judge Newman is a "subordinate judge" of Attorney General Sessions (Report and Recommendations, ECF No. 4, PageID 48). Mr. Easterling has objected (ECF No. 5) and District Judge Walter Rice, to whom this case was also randomly assigned upon filing, has recommitted the case for consideration of the Objections under Fed. R. Civ. P. 72(b).
Mr. Easterling first objects that Judges Rose and Newman must be subordinates of the Attorney General because when Congress created the Department of Justice in 1870, it required the Attorney General to "supervise and direct the administration and operation of the offices, boards, divisions, and bureaus that comprise the Department." (ECF No. 5, PageID 50). The Federal Judiciary is a separate branch of the federal government, created directly by Article III of the Constitution. It is not now nor has it ever been part of the Department of Justice.
Mr. Easterling secondly objects to the constitutionality of "28 U.S.C. § 1917(e)" review (ECF No. 5, PageID 52). This Court's review was in fact conducted under 28 U.S.C. § 1915(e)(2) which was adopted by the Congress as part of the Prison Litigation Reform Act of 1995. As the Report notes, the Supreme Court has held that review under this section and its predecessors is appropriately done by the Court prior to issuance of process so as to spare prospective defendants the expense and inconvenience of answering frivolous complaints. So it is not an obstruction of justice or somehow acting as a representative of the Attorney General for the Court to find the Complaint to be frivolous without allowing Plaintiff to use court process to impose on the time of the United States Attorney who would have to respond, as well as the time of the United States Marshal who would have to effect service of process. As Mr. Easterling well knows from his prior experience in this Court, he could have avoided § 1915 review by paying the filing fee. Mr. Easterling complains of the chilling effect of § 1915, but that is precisely what Congress intended.
Mr. Easterling's third objection is that Dstrict Judge Rice and Magistrate Judge Merz should recuse themselves from this case because Mr. Easterling has accused them, in a case filed against Mr. Sessions predecessor, Loretta Lynch, of conspiring against him. The fact that a judge is disqualified from presiding in a case in which he or she is accused of wrongdoing does not make him disqualified from presiding in all cases involving the same plaintiff.
Conclusion
Upon review of the Objections, the Magistrate Judge adheres to his prior conclusion: the Complaint should be dismissed with prejudice. April 1, 2017.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS