Pitts v. Espinda et al
Filing
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ORDER DENYING MOTION TO RECUSE CHIEF JUDGE J. MICHAEL SEABRIGHT re 31 - Signed by JUDGE SUSAN OKI MOLLWAY on 6/24/2016. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Joseph Pitts shall be served by first class mail at the address of record on June 27, 2016.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSEPH PITTS (A0259019)
)
)
Plaintiff,
)
)
vs.
)
)
NOLAN ESPINDA, et al.,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 15-00483 JMS/KJM
ORDER DENYING MOTION TO RECUSE
CHIEF JUDGE J. MICHAEL
SEABRIGHT
ORDER DENYING MOTION TO RECUSE CHIEF JUDGE J. MICHAEL SEABRIGHT
I.
INTRODUCTION.
On June 20, 2016, Plaintiff Joseph Pitts filed his
Motion to Alter or Amend Judgment.
See ECF No. 31.
Chief Judge
J. Michael Seabright, to whom this case is assigned, has
construed part of the motion as seeking his removal from this
case pursuant to 28 U.S.C. §§ 144 and/or 455.
See ECF No. 32.
Acting Chief Judge Leslie E. Kobayashi therefore assigned the
present judge to examine the disqualification issue.
33.
See ECF No.
Because Pitt identifies no ground to remove Chief Judge
Seabright from the case, the motion is denied to the extent it
seeks such removal.
Chief Judge Seabright will address the
remainder of the Motion to Alter or Amend Judgment.
II.
BACKGROUND FACTS.
Pitts is awaiting sentencing by a state court judge
while housed at the Halawa Correctional Facility, a State of
Hawaii prison.
See ECF No. 1, PageID #s 2, 21.
According to
www.vineline.com, there is only one Joseph Pitts in custody in
the State of Hawaii.
The Joseph Pitts listed online appears to
be the party in this case, as the online Pitts has the same
prisoner ID number listed in the caption above.
In State v.
Pitts, 131 Haw. 537, 539, 319 P.3d 456, 458 (2014), the Hawaii
Supreme Court noted that Pitts was tried and convicted of
attempted murder in the second degree, having stabbed a friend.
The Hawaii Supreme Court ruled on appeal that the trial court had
erred in failing to appoint substitute counsel for post-verdict
proceedings, including post-verdict motions and sentencing.
Accordingly, the case was remanded for appointment of counsel
“for the purposes of filing a motion for a new trial and for
resentencing”.
Id. at 544, 319 P.3d at 463.
On November 16, 2015, Pitts filed the present action
while awaiting resentencing.
See ECF No. 1.
The Complaint
asserts that the Hawaii Department of Safety and various prison
officials violated the Eighth and Fourteenth Amendments, as well
as sections 707-711(A), 707-712(a), and 710-1063 of Hawaii
Revised Statutes.
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On February 8, 2016, Chief Judge Seabright dismissed
the Complaint in part but allowed some of Pitts’s claims to go
forward.
Specifically, Chief Judge Seabright’s order noted that
the Complaint adequately stated claims for excessive force and
common-law battery, as well as assault and battery, with respect
to Defendants Officer Russel Botelho, Officer Taylor, Officer
Gernler, Officer Keolanui, Officer Magdadaro, Captain Aguon, and
Lieutenant Kellie Kent.
However, Chief Judge Seabright dismissed
with prejudice the claims against Defendants Hawaii Department of
Public Safety Sheriffs and Internal Affairs Offices.
Chief Judge
Seabright also granted leave to amend the Complaint with respect
to claims asserted against Defendants Nolan Espinda, Lyle
Antonio, Lieutenant Ho, Keoni Morreira, Officer J. Tabali,
Investigator Manumaleuna, Janice Villalobos, Ueda, Francis
Tuifau, and Val DeMello, RN.
See ECF No. 18.
In his declaration, Pitts says that he “truly
believe[s] Honorable Judge Michael Seabright Has a personal
dislike and bias against [him] that [he] believe[s] will hinder
and prevent [him] from Receiving fair and just decisions.”
No. 31-1, PageID # 345.
ECF
Pitts provides no facts supporting his
belief that Chief Judge Seabright is biased against him.
At
most, without pointing to specific examples, Pitts complains
about Chief Judge Seabright’s rulings, saying that Chief Judge
Seabright has been inconsistent, has misstated Pitts’s claims,
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and has miscited the law.
Pitts also says, more than a little
implausibly, that Chief Judge Seabright appears to be engaging in
ex parte communications in the form of allegedly reading Pitts’s
outgoing mail.
See ECF No. 31, PageID #s 326, 329.
Pitts says
that Chief Judge Seabright has not taken Pitts’s infirmity into
account, but Pitts does not explain what he means in alleging
this.
Id., PageID # 327.
Pitts does refer to one specific factual matter that he
says Chief Judge Seabright was mistaken about.
Pitts says that,
on page 26 of Chief Judge Seabright’s order of February 8, 2016,
Chief Judge Seabright says that Pitts sought medical attention
for his shoulder on September 6, 2014, while failing to mention
the 13 other times Pitts says he sought medical attention before
that.
See ECF No. 31, PageID # 332.
Even assuming that Chief
Judge Seabright was presented with a record indicating that Pitts
sought medical attention numerous times, the statement in the
order does not demonstrate bias.
The order addressed Pitts’s
deliberate indifference claim, pointing to the September 2014
treatment as indicating that Pitts had received medical attention
for his shoulder, having had two injections into it.
18, PageID # 235.
See ECF No.
Not reciting every prior request for treatment
is not, without more, evidence of bias.
Pitts also believes that Chief Judge Seabright is
biased against him because of an earlier case Pitts filed in this
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court, Pitts v. Rushing, et al., Civ. No. 11-00280 JMS/KSC.
In
that case, Chief Judge Seabright actually denied a motion to
dismiss.
See Civ. No. 11-00280 JMS/KSC, ECF No. 38.
favored Pitts.
This ruling
Chief Judge Seabright subsequently partially
granted a motion for summary judgment in that case.
11-00280 JMS/KSC, ECF No. 78.
See Civ. No.
Pitts says that, in granting the
motion, Chief Judge Seabright relied on a policy that had not
been introduced by any party.
ECF No. 31, PageID # 327.
Reliance on an unidentified policy is not readily apparent from
the order.
The order stated that Pitts could not proceed on a
claim based on the defendants’ failure to provide a written
statement explaining why certain witnesses had not been called in
a disciplinary hearing held by prison officials, but that the
defendants in that case were not entitled to summary judgment on
the issue of whether there were justifiable reasons for not
calling those witnesses.
78.
See Civ. No. 11-00280 JMS/KSC, ECF No.
Pitts cites to nothing in the earlier case indicating that
in that case he questioned Chief Judge Seabright’s partiality, as
he claims in the present motion to have done.
PageID # 327.
Ultimately, Pitts received a monetary settlement
in the earlier case.
III.
See ECF No. 31,
See ECF No. 88.
ANALYSIS.
A judge has “as strong a duty to sit when there is no
legitimate reason to recuse as he does to recuse when the law and
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facts require.”
Clemens v. U.S. Dist. Court for the Cent. Dist.
Of Cal., 428 F.3d 1175, 1179 (9th Cir. 2005) (quoting Nichols v.
Alley, 71 F.3d 347, 351 (10th Cir. 1995)).
recusal is sometimes required.
However, a judge’s
This court has deemed the motion
to have been brought pursuant to 28 U.S.C. § 144 and/or § 455.
See ECF No. 32.
Under § 144, a judge must recuse himself when a party
to a district court proceeding “files a timely and sufficient
affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any
adverse party.” 28 U.S.C. § 144.
Under § 455(a), “[a]ny 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).
Section 455 requires recusal
when:
a judge’s impartiality might reasonably be
questioned or where he has personal bias or
prejudice concerning a party, or personal
knowledge of disputed evidentiary facts
concerning the proceeding. Recusal is also
required where the judge knows he has a
fiduciary interest in the subject matter in
controversy or in a party to the proceedings,
or any other interest that could
substantially affect the outcome of the
proceedings. 28 U.S.C. § 455(b)(4).
Hanson v. Palehua Cmty. Ass’n, 2013 WL 1187948 (D. Haw. Mar. 20,
2013).
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A motion brought under § 144 must be supported by a
party’s affidavit identifying the basis for the party’s belief
that a judge is biased or prejudiced.
A judge other than the
judge who is the subject of a motion brought under § 144 must
decide the motion.
Section 455 does not include language
requiring an affidavit or requiring assignment to a different
judge.
The standard for recusal under both § 144 and § 455 is
the same.
See United States v. Hernandez, 109 F.3d 1450, 1453
(9th Cir. 1997).
Courts examine “‘whether a reasonable person
with knowledge of all the facts would conclude that the judge’s
impartiality might reasonably be questioned.’”
Id. (quoting
United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)).
Accord United States v. McTiernan, 695 F.3d 882, 891 (9th Cir.
2012).
“The reasonable person is not someone who is
hypersensitive or unduly suspicious, but rather is a
well-informed, thoughtful observer.”
United States v. Holland,
519 F.3d 909, 913 (9th Cir. 2008) (quotation marks and citation
omitted).
For purposes of § 144 and § 455, the basis of the
recusal motion must “[a]lmost invariably” come from an
extrajudicial source, as
opinions formed by the judge on the basis of
facts introduced or events occurring in the
course of the current proceedings, or of
prior proceedings, do not constitute a basis
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for a bias or partiality motion unless they
display a deep-seated favoritism or
antagonism that would make fair judgment
impossible. Thus, judicial remarks during
the course of a trial that are critical or
disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do
not support a bias or partiality challenge.
They may do so if they reveal an opinion that
derives from an extrajudicial source; and
they will do so if they reveal such a high
degree of favoritism or antagonism as to make
fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994).
A judge’s
ordinary efforts at courtroom administration and “expressions of
impatience, dissatisfaction, annoyance, and even anger” are not
grounds for establishing the necessary bias or impartiality for
purposes of § 144 and § 455.
Id. at 555-56.
Pitts’s motion does not rely on anything extrajudicial
in seeking the recusal of Chief Judge Seabright.
Instead, Pitts
alleges that bias and prejudice are shown by Chief Judge
Seabright’s rulings against him, baldly concluding that Chief
Judge Seabright must be biased or prejudiced if he has ruled
against Pitts.
A ruling against a party, even if mistaken, does not
require the removal of the judge.
Pitts fails to demonstrate
that Chief Judge Seabright’s rulings “display a deep-seated
favoritism or antagonism that would make fair judgment
impossible.”
Liteky, 510 U.S. at 555.
To the contrary, the
record establishes that Chief Judge Seabright has carefully
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examined the merits of each of Pitts’s claims, dismissing some
but allowing others to go forward.
This adjudication of Pitts’s
claims, even if Pitts thinks the adjudication is legally or
factually wrong, does not demonstrate the bias or prejudice
necessary for removal of Chief Judge Seabright from this case.
Pitts’s motion to recuse Chief Judge Seabright is
denied, given Pitts’ failure to demonstrate that “a reasonable
person with knowledge of all the facts would conclude that [Chief
Judge Seabright’s] impartiality might reasonably be questioned.”
Hernandez, 109 F.3d at 1453.
IV.
CONCLUSION.
To the extent Pitts’s motion seeks the disqualification
of Chief Judge Seabright based on alleged bias or prejudice, the
motion is denied.
The remainder of the Motion to Alter or Amend
Judgment will be adjudicated by Chief Judge Seabright.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 24, 2016.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Pitts v. Espinda, et al, Civil No. 15-00483 JMS/KJM; ORDER DENYING MOTION TO
RECUSE CHIEF JUDGE J. MICHAEL SEABRIGHT
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