[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________

No. 21

- 11932

Non

- Argument Calendar

____________________

VINODH RAGHUBIR, ALL U.S. CITIZENS WITHIN 11TH CIRCUIT BOUNDARIES,

Plaintiffs

- Appellants,

versus BONNIE JEAN PARRISH, Florida Attorney General ’ s Office, ORANGE COUNTY CLERK, 5TH DCA, WENDY BERGER, USDC Orlando, G. KENDALL SHARP, USDC Orlando, et al., USCA11 Case: 21-11932 Document: 38-1 Date Filed: 12/21/2022 Page: 1 of 92 Opinion of the Court 21

- 11932

Defendants

- Appellees.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:20

- cv

- 01883

- GKS

- GJK

____________________
Before W ILSON , R OSENBAUM , and G RANT , Circuit Judges.

PER CURIAM :
Vinodh Raghubir appeals pro se the district court’s sua sponte dismissal of his 42 U.S.C. § 1983 civil rights complaint, as well as the court’s subsequent orders denying his first Fed eral R ule of Civ il P rocedure 60(b) motion to vacate that dismissal, and den ying his second motion to vacate , which had challenged the denial of his first motion to vacate. After careful review, we affirm. Raghubir argues that the district judge assigned to Raghubir’s case erred in failing to recuse because the district judge was a named defendant in the complaint

. Raghubir also argues that the district court erred in determining that absolute immunity protected the other named defendants, who were (1) an employee at the Florida Attorney General’s Of fice; (2) the Orange County, Florida, Clerk of Court; (3) the Florida Fifth District Court of Appeal; and (4) other federal judges. Raghubir contends that he should have been released from prison and should have received USCA11 Case: 21-11932 Document: 38-1 Date Filed: 12/21/2022 Page: 2 of 921

- 11932 Opinion of the Court 3

$65 million in damages. He also a rgues that all of the federal judges within this Circuit should recuse themselves from his case

. First, we address whether all the federal judges in this C ircuit should recuse themselves from this case. Second, we discuss whether the district judge shou ld have recused himself. Third, we discuss whether the district court erred in dismissing Raghubir’s complaint and denying his motions for reconsideration.

I. First, Raghubir argues that all the judges within this Circuit should recuse themselves from his c ase. Under the “ rule of necessity, ” we have held that a judge need not recuse himself or herself, even if he or she is a named defendant, if all but one of the judges on the court are also named defendants, such that the case cannot be heard by a panel of judges who are not named defendants. Bolin v. Story , 225 F.3d 1234, 1238

– 39 (11th Cir. 2000) (per curiam) . In Bolin

, we noted that the rule of necessity “is generally invoked in cases in which no judge in the country is capable of hearing the case.” Id. at 1238. But because the plaintiffs in Bolin indiscriminately named as parties all but one of the then

- current judges o n

our Court, regardless of whether any particular judge participated
in the plaintiffs’ prior appeals, we could not convene a panel in which none of the judges had a personal interest in the case. Id. at
1239. Thus , we determined that the rule of necessi ty allowed at least a panel of judges who had not been involved in the plaintiffs’ prior appeals to hear the case. Id. USCA11 Case: 21-11932 Document: 38-1 Date Filed: 12/21/2022 Page: 3 of 94 Opinion of the Court 21

- 11932

Here, the rule of necessity permits us to rule on Raghubir’s case, as he has attempted to name every federal judge within this
Circuit a s a defendant. We accordingly find that all of the federal judges of this Circuit need not recuse themselves from Raghubir’s

case simply because he has named them as defendants

. II.

Second , Raghubir argues that the district court judge assigned to Raghubir’ s case erred in failing to recuse because the district judge was a named defendant. We review for an abuse of discretion a judge’s decision whether to recuse himself. Thomas v. Tenneco Packaging Co. , 293 F.3d 1306, 1319

– 20 (11th Cir. 2002) (per curiam)

. We have held that “a district judge must recuse himself ‘inany proceeding in which his impartiality might reasonably be questioned.’” Thomas , 293 F.3d at 1329 (quoting 28 U.S.C. § 455(a)). A district judge’s impartiality may reasonably be questioned wh en“an objective, fully informed lay observer would entertain significant doubt about the judge’s impartiality.” Id. (quotation marks omitted). A judge must also recuse himself when, among other circumstances, he “[i]s a party to the proceeding.” 28 U.S .C. § 455(b)(5)(i). Thus, § 455(b) “sets forth specific circumstances requiring recusal, which establish the fact of partiality.” United States
v. Patti , 337 F.3d 1317, 1321 (11th Cir. 2003).

We may review violations of 28 U.S.C. § 455(a) and (b), govern ing disqualification of federal judges, for harmless error. Parker USCA11 Case: 21-11932 Document: 38-1 Date Filed: 12/21/2022 Page: 4 of 921

- 11932 Opinion of the Court 5

v. Connors Steel Co. , 855 F.2d 1510, 1527

– 28 (11th Cir. 1988)

. But harmless

- error review “is neither categorically available nor categorically unavailable for all § 455(a) violations.” M urray v. Scott
, 253 F.3d 1308, 1313 n.8 (11th Cir. 2001) ( internal quotation marks omitted, alterations adopted)

. The district judge s hould have recused from this matter because he was a named defendant. But this error is harmless because, as discussed below, Raghubir’s complaint failed to state a claim upon which relief could be granted. 1

III.

Last , Raghubir argues that the district court erred in dismissing his complaint by finding that absolute immunity protected the other named defendants.

We liberally construe pro se filings. Sconiers v. Lockhart

, 946 F.3d 1256, 1262 (11th Cir. 2020)

. Section 1915A of the P rison
L itigation R eform A ct (PLRA) provides that the district court shall
pre

- screen “a complaint in a civil action in which a prisoner seeksredress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Then, the district court must identify any cognizable claims, or dismiss the complaint

— or

1 Further, in his second motion to vacate (reconsider), Raghubir lists all the judges in the district court to try to conflict out all the judges. Just as the rule of necessity permits a panel of this Circuit to hear Raghubir’s appeal, despite his efforts to conflict out all of the judges, the rule of necessity also allowed the district judge to rule on his motion to vacate. See Bolin , 225 F.3d at 1 23 9

. USCA11 Case: 21-11932 Document: 38-1 Date Filed: 12/21/2022 Page: 5 of 96 Opinion of the Court 21

- 11932
any part of it

— if it, among other things, fails to state a claim uponwhich relief may be granted or seeks monetary relief from defendants who are immune from such relief. Id. § 1915A(b)(1)

– (2). A dismissal for failure to state a claim under the PLRA may be with or without prejudice. See Lomax v. Ortiz

- Marquez , 140 S. Ct. 1721, 1725 (2020). We review de novo a district court’s dismissalof a complaint for failure to state a claim, “accept[ing] the allegations in the complaint as true and constru[ing] them in the light most favorable to the plai ntiff.” Chua v. Ekonomou , 1 F.4th 948, 952 (11th Cir. 2021). A district court may dismiss a complaint for failure to state a claim based on the affirmative defense of judicial immunity “when the defense is an obvious bar given the allegations.” Sibley v. Lando , 437 F.3d 1067, 1070 n.2 (11th Cir. 2005)

. We review de

novo the grant of absolute judicial immunity. Smith v. Shook

, 237 F.3d 1322, 1325 (11th Cir. 2001)

. A judge acting within his judicial capacity 2 is entitled to absolute judicial immunity, and is not subject to civil suits for damages, unless he acted “in the clear absence of all jurisdiction.” Bolin

, 225 F.3d at 1239 ( internal quotation marks omitted). Absolute judicial immunity applies “regardl ess of whether [the judge] made a

2 A judge’s actions were made within his judicial capacity if: “(1) the act complained of constituted a normal judicial function; (2) the events occurred in the judge’s chambers or in open court; (3) the controversy involved a case pending before th e judge; and (4) the confrontation arose immediately out of a visit to the judge in his judicial capacity.” Sibley

, 437 F.3d at 1070

. USCA11 Case: 21-11932 Document: 38-1 Date Filed: 12/21/2022 Page: 6 of 921

- 11932 Opinion of the Court 7
mistake, acted maliciously, or exceeded his authority.” McCullough v. Finley , 907 F.3d 1324, 1331 (11th Cir. 2018) . Court clerks “have absolute immunity from actions for damages arising from acts they are specifically re quired to do under court order or at a judge’s direction.” Tarter v. Hury , 646 F.2d 1010, 1013 (5th Cir. Unit A 1981)

. 3 Similarly, a “prosecutor enjoys absolute immunity from allegations stemming from the prosecutor’s function as advocate.” Hart v. Hod ges , 587 F.3d 1288, 1295 (11th Cir. 2009) ( per curiam )

.In Raghubir’s complaint he names the following as defendants: (1) an employee at the Florida Attorney General’s Office; (2) the Orange County, Florida, Clerk of Court; (3) the Florida Fifth District C ourt of Appeal; and (4) three federal judges. Raghubir largely complains about the outcome of his prior cases in the Florida Fifth District Court of Appeal and the United States District Court for the Middle District of Florida , claiming that th e associat ed judges harmed him while acting in their judicial capacit ies

. Thus, because Raghubir complains about actions that were taken when they were acting in their judicial capacity , the defendant

judges are entitled to absolute judicial immunity. See Bolin

, 225 F.3d at 1239

.

3 We are bound by decisions of the former Fifth Circuit handed down before October 1, 1981. Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). USCA11 Case: 21-11932 Document: 38-1 Date Filed: 12/21/2022 Page: 7 of 98 Opinion of the Court 21

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Because the Orange County Clerk of Court’s actions arise from duties th at were given by judge’s orders, the Clerk is entitled to absolute immunity. See Tarter , 646 F.2d at 1013. B ecause the actions taken by Bonnie Jean Parrish from the Florida Attorney General’s Office were prosecutorial actions, she enjoys similar prosecutorial absolute immunity. See H art , 587 F.3d at 1295.

Also , Raghubir’s primary claim for release from detentio n cannot be brought in a Section 1983 claim. See Boyd v. Warden, Holman Corr. Facility , 856 F.3d 853, 865 (11th Cir. 2017) ( A plaintiff seeking to invalidate “his conviction or sentence or change the nature or duration of his sentence” must bring any such claims in a habeas corpus action, not under § 1983. ). Raghubir a lso argues that the district court erred in denying his motions to vacate its dismissal, which the district court construed as motions for reconsideration under Federal Rule of Civil Procedure 60(b). A district court may relieve a party from a final judgment, order, or proceeding for reasons including “fraud

. . . misrepresentation, or misconduct by an opposing party; ” “ the judgment is void ”; or “any other reason that justifies relief .” Fed. R. Civ. P. 60(b)(3), (4), (6). We generally review the district court’s denial of a Rule 60(b) motion for abuse of discretion. Griffin v. Swim

- Tech Corp. , 722 F.2d 677, 680 (11th Cir. 1984)

. In his motions, Raghubir restates his original clai ms or raisesunsupported allegations. None of those allegations meet any reason under Rule 60 for the district court to relieve Raghubir from the prior dismissal of his complaint. USCA11 Case: 21-11932 Document: 38-1 Date Filed: 12/21/2022 Page: 8 of 921

- 11932 Opinion of the Court 9

Thus, Raghubir’s complaint failed to state a claim upon which relief could be granted because all of the defendants wereprotected by absolute immunity, and his primary claim was for release, which is unavailable under § 1983. Further, the district court did not abuse its discretion in denying Raghubir’s two motions to

vacate un der Rule 60(b) because he did not show fraud, misconduct, a judicial mistake, or any compelling justification under Rule 60(b) for the requested action.

AFFIRMED. 4

4 We also deny Raghubir’s pending motions to take judicial notice. USCA11 Case: 21-11932 Document: 38-1 Date Filed: 12/21/2022 Page: 9 of 9