             Case: 14-11618     Date Filed: 01/09/2015   Page: 1 of 6


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-11618
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 3:13-cv-00101-CAR

ADOLFUS O'BRYAN GILES,
a.k.a. Adolfus O'Brien Giles,

                                                              Plaintiff-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                             Defendant-Appellee.

                          ________________________

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

                                (January 9, 2015)

Before MARCUS, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:

      Adolfus Giles, proceeding pro se, appeals the district court’s dismissal, for

lack of subject matter jurisdiction, of his Federal Tort Claims Act (“FTCA”) suit
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against the United States, brought pursuant to 28 U.S.C. § 2674. On appeal, Giles

argues that: (1) the district judge should have recused himself sua sponte because

the suit involves a deputy clerk in the same federal court; and (2) the district court

erred when it found that the deputy clerk, whose actions led to the claim, was

protected by absolute quasi-judicial immunity. After careful review, we affirm.

      “Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998). We generally do not consider

arguments not raised before the district court, and rarely invoke the plain error

doctrine in civil cases. Ledford v. Peeples, 657 F.3d 1222, 1258 (11th Cir. 2011).

However, we have reviewed the issue of recusal that is raised for the first time on

appeal for plain error. Curves, LLC v. Spalding Cnty., Ga., 685 F.3d 1284, 1287

n.2 (11th Cir. 2012). To show plain error, the defendant must show (1) an error,

(2) that is plain, and (3) that affected his substantial rights. United States v.

Turner, 474 F.3d 1265, 1276 (11th Cir.2007). If the defendant satisfies the three

conditions, we may exercise our discretion to recognize the error if it “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

      First, we find no merit to Giles’s recusal claim. “Any justice, judge, or

magistrate judge of the United States shall disqualify himself in any proceeding in

which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). A


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judge is also required to disqualify himself if he has a personal bias or prejudice

against a party or personal knowledge of disputed evidentiary facts in the

proceeding. 28 U.S.C. § 455(b)(1). “The standard under § 455 is objective and

requires the court to ask whether 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.” Bolin v. Story, 225

F.3d 1234, 1239 (11th Cir. 2000) (quotation omitted).

       The allegation of bias must show that the bias is personal rather than judicial

in nature. Id. That is, “the bias must stem from an extrajudicial source and result

in an opinion on the merits on some basis other than what the judge learned from

his participation in the case.” Phillips v. Joint Legis. Comm. on Performance &

Expenditure Review of the State of Miss., 637 F.2d 1014, 1020 (5th Cir. 1981)

(quotation omitted). 1 Disqualification “ordinarily may not be predicated on the

judge’s rulings in the instant case or in related cases.” Id. (citations omitted).

       In this case, Giles essentially is arguing that a deputy clerk at the district

court was negligent by mislabeling documents that Giles had filed in a case against

Wal-Mart, thereby causing Giles’s complaint against Wal-Mart to be dismissed

with prejudice.     However, there is nothing in the record that would lead an

objective lay observer with all the facts to entertain significant doubt about the

1
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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district judge’s impartiality. Moreover, any bias the district judge showed against

Giles in the prior action, including sanctions, was judicial rather than personal in

nature, and thus not a basis for recusal. Therefore, we find no plain error in the

district judge’s failure to recuse himself sua sponte.

       We are also unpersuaded by Giles’s claim that the district court erred in

dismissing his negligence suit against the deputy clerk. While we recognize that

the district court erred in dismissing the case based on the deputy clerk’s quasi-

judicial immunity, 2 we may nevertheless affirm on any ground that appears in the

record. Lanfear v. Home Depot, Inc., 679 F.3d 1267, 1275 (11th Cir. 2012). The

record here reveals that Giles failed to exhaust his claim within the time allotted.

       “A tort claim against the United States shall be forever barred unless it is

presented in writing to the appropriate Federal agency within two years after such

claim accrues” or the suit is commenced within six months after the federal agency

denies the claim. 28 U.S.C. § 2401(b). A district court lacks subject matter

jurisdiction over suits where the plaintiff does not comply with the exhaustion

requirements of 28 U.S.C. § 2401(b). See Turner v. United States, 514 F.3d 1194,

2
        The record in this case indicates that quasi-judicial immunity was not available to the
deputy clerk. Our binding precedent holds that “[a] clerk of a federal court performing routine
duties such as entering an order and notifying parties does not enjoy an absolute immunity from
damages actions for injuries caused by that conduct.” Williams v. Wood, 612 F.2d 982, 984 (5th
Cir. 1980). Absolute quasi-judicial immunity applies when clerks act “in a nonroutine manner
under command of court decrees or under explicit instructions of a judge.” Id. at 985. Here,
however, there is no record evidence, and the district court did not indicate that it took judicial
notice, that the deputy clerk’s actions were non-routine, expressly ordered by a judge, or were
functionally comparable to a judge’s actions. Id. at 984.
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1200 (11th Cir 2008). “The general rule is that a claim under the FTCA accrues at

the time of injury.” Diaz v. United States, 165 F.3d 1337, 1339 (11th Cir. 1999).

Certain types of claims accrue “when the plaintiff is, or in the exercise of

reasonable diligence should be, aware of both [his] injury and its connection with

some act of the defendant.” Price v. United States, 775 F.2d 1491, 1494 (11th Cir.

1985) (medical malpractice).

      Here, the record reveals that Giles notified the appropriate Federal agency

about the deputy clerk’s allegedly negligent actions, at the earliest, on March 8,

2012. The record does not indicate when Giles first noticed that the deputy clerk

had erroneously stamped his statement about Wal-Mart as a complaint. However,

Giles’s own complaint in the instant FTCA lawsuit said that the deputy clerk told

him to pay the fee to file the complaint. In his brief on appeal, Giles says that he

paid the fee and then left. At that time, in paying the filing fee, arguably Giles

should have known that the deputy clerk was going to file Giles’s submitted

materials as a complaint. More importantly, Giles’s complaint alleged that he was

injured because the deputy clerk’s actions caused the dismissal of his lawsuit.

Thus, Giles knew that he was injured by the deputy clerk’s actions, or should have

known, by the time the district court dismissed his claims on March 31, 2009, or

when we affirmed that dismissal on December 28, 2009. See Giles v. Wal-Mart

Distribution Center, 359 F. App’x 91, 92 (11th Cir. 2009). Based on these dates,


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because Giles notified the agency at the earliest on March 8, 2012, Giles failed to

notify the appropriate federal agency within two years. See 28 U.S.C. § 2401(b).

Therefore, Giles’s claim is barred and we affirm the district court’s dismissal of

Giles’s complaint on this ground. Lanfear, 679 F.3d at 1275.

      AFFIRMED.




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