Gregory C. Kapordelis v. Edward Carnes

Opinion

Case: 12-10956 Date Filed: 07/24/2012 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 12-10956 Non-Argument Calendar ________________________

D.C. Docket No. 1:11-cv-01769-CAP

GREGORY C. KAPORDELIS, llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant, versus

EDWARD CARNES, GERALD B. TJOFLAT, J.L. EDMONDSON, STANLEY F. BIRCH, JR., JOSEPH M. HOOD,llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(July 24, 2012)

Before BARKETT, WILSON and ANDERSON, Circuit Judges. Case: 12-10956 Date Filed: 07/24/2012 Page: 2 of 4

PER CURIAM:

Gregory Kapordelis, a federal prisoner, appeals pro se from the district

court’s dismissal of his Bivens action brought against five defendants, all appellate

judges, as frivolous on absolute immunity grounds. On appeal, Kapordelis argues

that the district court erred by: (1) extending judicial immunity to his suit seeking

only declaratory relief; and (2) failing, upon his motion, to recuse the district and

magistrate judges from considering the case. After review, we affirm.

I.

We review a district court’s sua sponte dismissal of a complaint for frivolity

under 28 U.S.C. § 1915A for abuse of discretion. Bingham v. Thomas, 654 F.3d

1171, 1175 (11th Cir. 2011). A claim is frivolous “if it lacks an arguable basis

either in law or in fact.” Id. We will not disturb a district court’s decision on

abuse of discretion review if its decision falls within a range of permissible

choices, and it is not influenced by a mistake of law. Zocaras v. Castro, 465 F.3d

479, 483 (11th Cir. 2006).

Here, Kapordelis has alleged that two separate appellate panels abused

judicial process in deciding his appeals. The first panel affirmed his criminal

convictions for child pornography. He argues that the panel denied him due

process when it declined to consider key facts. He also alleges that the panel was

2 Case: 12-10956 Date Filed: 07/24/2012 Page: 3 of 4

motivated by a desire to protect the U.S. Attorney’s Office. The second panel

decided his appeal from a dismissal of a separate Bivens action.

This Court has indicated that, in a Bivens action, a federal judge retains

absolute immunity against injunctive relief, and § 1983 “limit[s] the relief

available to plaintiffs to declaratory relief.” Bolin v. Story, 225 F.3d 1234,

1241-42 (11th Cir. 2000). We need not reach this issue, however, because

Kapordelis is not entitled to declaratory relief, as he possesses an adequate remedy

at law: Kapordelis may pursue Supreme Court review of the challenged decisions.

See Bolin, 225 F.3d at 1242-43 (“plaintiffs are not entitled to declaratory relief

[when] there is an adequate remedy at law”). Furthermore, Kapordelis’s

conclusory allegations of bias against the circuit judges and visiting district judge

who heard his prior appeals are insufficient to make out a constitutional violation.

Therefore, the district court did not abuse its discretion in denying Kapordelis’s

Bivens claim as frivolous.

II.

We review a judge’s failure to recuse himself for an abuse of discretion.

McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990). When

reviewing a failure to recuse under 28 U.S.C. § 455(a), the test is whether an

“objective, disinterested, lay observer . . . would entertain a significant doubt about

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the judge’s impartiality.” McWhorter, 906 F.2d at 678 (quotation omitted). A

judge’s rulings in the same or a related case generally may not serve as the basis

for recusal, absent a showing of “pervasive bias and prejudice.” McWhorter, 906

F.2d at 678.

Here, pervasive bias has not been shown. Kapordelis’s arguments that

recusal was required are based solely on decisions rendered in a previous case.

Further, his allegations of prejudice are wholly conclusory. The conclusory

allegations fail to meet the objective standards for recusal under either 28 U.S.C.

§ 144 or § 455(a). McWhorter, 906 F.2d at 678. It was therefore not an abuse

of discretion for the district court to deny the recusal motion.

AFFIRMED.