Cobble v. Cobb Cnty. Police Dep't

DANIEL ERIC COBBLE, Plaintiff, v. COBB COUNTY POLICE DEPARTMENT, et al., Defendants.

CIVIL ACTION NO. 1:02-CV-2821-RWS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

December 3, 2013

ORDER

This case comes before the Court on Plaintiff's construed Motion for Reconsideration [5] and Motion to Impeach Federal Judge Richard W. Story for His Failure to Answer a Single Legal Argument [21]. After a review of the record, the Court enters the following Order.

Background

On October 15, 2002, Plaintiff Daniel Cobble filed a pro se civil rights action while confined at the Cobb County Adult Detention Center. Plaintiff's Complaint [1] against the Cobb County Police Department, several Cobb County police officers, and two Cobb County magistrate judges alleged that Defendants failed to grant or notify him of the date of a first appearance hearingwithin 72 hours of his arrest pursuant to a warrant. See O.C.G.A. § 17-4-26 (requiring officer arresting under a warrant to bring arrestee before a judicial officer and notify arrestee of the date of a commitment hearing within 72 hours after arrest). He alleged that Defendants ultimately granted him a hearing five days after his arrest. He further alleged that he had been awaiting trial in jail for over 14 months without bond. Finally, Plaintiff alleged that a magistrate judge charged him with three additional felony counts and a misdemeanor battery charge but never granted him a first appearance hearing, though he was later indicted on all charges. Plaintiff sought dismissal of his charges plus monetary relief.

Plaintiff's case came before the Court pursuant to 28 U.S.C. § 1915A, which requires screening of prisoner complaints for frivolity. On November 6, 2002, Judge Charles A. Moye Jr. dismissed Plaintiff's claim pursuant to Younger v. Harris, 401 U.S. 37 (1971), in which the United States Supreme Court held that federal courts should abstain from intervening in ongoing state criminal prosecutions "when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." Id. at 43-44. Furthermore, federal court intervention is justified only in extraordinarycircumstances involving bad faith or harassment or a flagrant violation of an express constitutional prohibition. Id. at 49-50, 53-54.

The Court held that Plaintiff had an adequate remedy at law for his federal constitutional claim and that extraordinary circumstances justifying intervention were not present. (Dkt. [3] at 3.) The Court also noted that Plaintiff could only seek money damages based on his unconstitutional confinement claim once he proved the invalidity of the criminal charges against him. (Id. at 4 (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).) And if he wanted to seek immediate dismissal of all charges and his immediate release, Plaintiff had to file a federal habeas corpus petition after exhausting his state remedies. (Id. at 4 n.1.) The action was dismissed for failure to state a claim upon which relief can be granted, and the case was closed on November 7, 2002.

Plaintiff sent a letter [5] to Judge Moye, filed on November 14, 2002, arguing that he was not permitted to cite legal authority in his original civil rights complaint worksheet but could state a valid claim if he cited O.C.G.A. § 17-4-26, which states that "[a]n arrested person who is not notified before the hearing of the time and place of the commitment hearing shall be released."

On June 24, 2013, Plaintiff filed a Notice of Appeal [6] and an Application to Appeal In Forma Pauperis [7], among other motions. The case was reassigned to the undersigned on June 26, and on August 1 the Court denied Plaintiff's pending motions as untimely. (Dkt. [17].) Plaintiff filed a Motion to Impeach Federal Judge Richard W. Story for His Failure to Answer a Single Legal Argument [21]. The Court construes this motion as a Motion to Recuse. The Eleventh Circuit Court of Appeals has also inquired into the status of Plaintiff's November 14, 2002 letter, which it construes as a Motion for Reconsideration [5]. The Court first determines the recusal issue before turning to the underlying Motion for Reconsideration [5].

Discussion

I. Motion to Recuse [21]

Plaintiff's construed Motion to Recuse [21] enumerates the reasons he believes the Court erred in its August 1, 2013 Order [17]. Recusal under 28 U.S.C. § 455(a) is appropriate only where "an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge's impartiality." United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (citation omitted)." '[P]rior rulings in the proceeding . . . solely because they were adverse' are not ordinarily sufficient to require a § 455(a) recusal.' " United States v. Turner, No. 2:08-CR-00018-RWS, 2009 WL 529582, at *1 (N.D. Ga. Feb. 27, 2009) (citation omitted). Because Plaintiff only explains his disagreement with the Court's Order [17] without offering any evidence of personal bias, his construed Motion to Recuse [21] is DENIED.

II. Motion for Reconsideration [5]

A. Motion for Reconsideration Legal Standard

Under the Local Rules of this Court, "[m]otions for reconsideration shall not be filed as a matter of routine practice," but rather, only when "absolutely necessary." LR 7.2(E), NDGa. Such absolute necessity arises where there is "(1) newly discovered evidence; (2) an intervening development or change in controlling law; or (3) a need to correct a clear error of law or fact." Bryan v. Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003). However, a motion for reconsideration may not be used "to present the court with arguments already heard and dismissed or to repackage familiar arguments to test whether the court will change its mind." Id. at 1259. Nor may it be used "to offer new legal theories or evidence that could have been presented in conjunction withthe previously filed motion or response, unless a reason is given for failing to raise the issue at an earlier stage in the litigation." Adler v. Wallace Computer Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga. 2001). Finally, "[a] motion for reconsideration is not an opportunity for the moving party . . . to instruct the court on how the court 'could have done it better' the first time." Pres. Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 916 F. Supp. 1557, 1560 (N.D. Ga. 1995), aff'd, 87 F.3d 1242 (11th Cir. 1996).

B. Analysis

Plaintiff has failed to show the existence of new evidence or law that would entitle him to relief. The Court's decision to abstain from deciding the case was proper at the time. Furthermore, Plaintiff's claim is due to be dismissed on the merits for the reasons that follow.

1. Violation of O.C.G.A. § 17-4-26

Plaintiff seeks dismissal of all charges against him based on the allegation that he was not granted a first appearance hearing or notified of a hearing date within 72 hours.¹ (Compl., Dkt. [1] at 4.) He also claims that hisrights were violated after a magistrate judge added three felony charges against him at a probable cause hearing in August 2001 without granting him another first appearance. (Id.) He cites O.C.G.A. § 17-4-26, which reads in full:

Every law enforcement officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing judicial officer within 72 hours after arrest. The accused shall be notified as to when and where the commitment hearing is to be held. An arrested person who is not notified before the hearing of the time and place of the commitment hearing shall be released.

Courts have found that while the statute "requires that 'the person arrested [be brought] before a committing judicial officer within 72 hours after arrest,' " a commitment hearing need not be held within that time. Tidwell v. Paxton, 651 S.E.2d 714, 715 (Ga. 2007) (quoting O.C.G.A. § 17-4-26).

Plaintiff argues that he should have been released because he did not received a first appearance hearing within 72 hours. (Dkt. [5].) O.C.G.A. § 17-4-26 does state that "[a]n arrested person who is not notified before the hearing of the time and place of the commitment hearing shall be released." But "courts have ruled that [violation of O.C.G.A. § 17-4-26] in no way vitiates the indictment, trial, verdict, and judgment of conviction and sentence." Robinson v. State, 356 S.E.2d 55, 60 (Ga. Ct. App. 1987) (citing Heard v. State, 189 S.E.2d 895, 897 (Ga. Ct. App. 1972)). Thus, assuming Plaintiff was granted neither an initial appearance before a judicial officer within 72 hours nor a commitment hearing, Plaintiff cannot now challenge the charges against him based on a violation of O.C.G.A. § 17-4-26 because he was later granted a hearing and was indicted on all charges.² Plaintiff's claims related to the alleged delay in receiving a hearing are therefore moot. See McClure v. Hopper, 214 S.E.2d 503, 505-06 (Ga. Ct. App. 1975) (failing to bring someone arrested under a warrant before a committing officer within 72 hours "would be ground for pre-indictment habeas corpus," but it is "not ground for post-conviction habeas corpus due to mootness"); see also Capestany v. State, 656 S.E.2d 196, 200 (Ga. Ct. App. 2007) (holding that after a warrantless arrest,"statutory remedy for [failing to hold a commitment hearing within 48 hours] was only available during the period of illegal detention, which ended when the State obtained valid arrest warrants").

Similarly, Plaintiff's contention that the magistrate judge added felony charges at a probable cause hearing in violation of his due process rights is no basis for release. His allegations demonstrate that there was probable cause to hold him on those charges. First, the judge added the...