Webb v. White et al

Filing 14

MEMORANDUM DECISION AND ORDER denying 12 Motion to Disqualify Judge. Signed by Judge David Nuffer on 10/22/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
DAVID WEBB,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING PLAINTIFF’S
MOTION TO DISQUALIFY

v.
Case No. 2:15-cv-00512-DN-PMW
HEATHER S. WHITE, FRANK MYLAR,
SNOW CHRISTENSEN & MARTINEAU,
MYLAR LAW,

Judge David Nuffer

Defendants.
Plaintiff David Webb obtained leave to proceed in forma pauperis 1 and filed his
complaint 2 in this district on July 30, 2015, alleging a violation of civil rights under 42 U.S.C. §
1983. Mr. Webb complains of intentional discrimination by the defendants who allegedly
committed “extrinsic fraud against the U.S. District Court for the District of Utah” by submitting
pleadings claiming “the Sovereign Immunity Defense under the Utah Governmental Immunity
Act Statutes and the Qualified Immunity Doctrine for their Defendant Clients that were
recipients of Federal Funding . . .” Mr. Webb alleged that these filings violated “RICO in
accordance with 42 U.S.C. 2000d-7, and Title VI of the Civil Rights Act of 1964. . . .” 3 Mr.
Webb’s complaint also includes “Count II: 1st Amendment,” 4 “Count III: 14th Amendment,” 5

1

Order on Application to Proceed without Prepayment of Fees, docket no. 1, filed July 30, 2015.

2

Civil Rights Complaint (42 U.S.C. 1983 & RICO Act), docket no. 3, filed July 30, 2015.

3

Id. at 4–5.

4

Id. at 14.

5

Id. at 14–18 (Mr. Webb’s filing labeled the 15th page as page 16, and continuing sequentially until page 20; page
21 is labeled as page 15, and pages 22–25 are correctly labeled).

“Count IV: 42 U.S.C. § 2000d-7,” 6 “Count V: Title VI of the Civil Rights Act of 1964,” 7 “Count
VI: Rico Act,” 8 “Count VII: Intentional Infliction of Emotional Distress,” 9 and “Count VIII:
Negligent Infliction of Emotional Distress.” 10 Mr. Webb subsequently moved the court to
appoint counsel, 11 for service of process, 12 and to amend his complaint, adding additional
defendants from and including the law firm of Durham Jones & Pinegar. 13 These motions remain
pending on a referral to Magistrate Judge Warner under federal rule 72 14 and local rule 72-2. 15
On October 15, 2015, Mr. Webb filed a motion to disqualify Judge Nuffer under 28
U.S.C. § 455 (“Mr. Webb’s Motion to Disqualify”). 16 This order addresses only Mr. Webb’s
Motion to Disqualify. For the reasons stated below, recusal or disqualification would be
improper, and the motion is DENIED.

6

Id. at 17–18 (Mr. Webb’s filing labeled the 15th page as page 16, and continuing sequentially until page 20; page
21 is labeled as page 15, and pages 22–25 are correctly labeled).
7

Id. at 18 (Mr. Webb’s filing labeled the 15th page as page 16, and continuing sequentially until page 20; page 21 is
labeled as page 15, and pages 22–25 are correctly labeled).
8

Id. at 18–20 (Mr. Webb’s filing labeled the 15th page as page 16, and continuing sequentially until page 20; page
21 is labeled as page 15, and pages 22–25 are correctly labeled).
9

Id. at 20 (Mr. Webb’s filing labeled the 15th page as page 16, and continuing sequentially until page 20; page 21 is
labeled as page 15, and pages 22–25 are correctly labeled).
10

Id.

11

Motion for Appointment of Counsel, docket no. 4, filed July 30, 2015.

12

Motion for Service of Process at Government Expense, docket no. 5, filed July 30, 2015.

13

Pro Se Plaintiff’s Motion in Accordance with FRCP Rule 15 and Local Rule DUCIVR 15-1, docket no. 7, filed
Aug. 21, 2015.
14

FED. R. CIV. P. 72(b).

15

DUCiv R 72-2(c).

16
Motion Seeking Recusal [U.S. District Chief Judge David Nuffer] in Accordance with 28 U.S.C. 455,
Encompassing the Official Court Record Evidenced in the Docket Sheets (“Mr. Webb’s Motion to Disqualify”),
docket no. 12, filed Oct. 15, 2015.

2

DISCUSSION
I.

Legal Standard for Disqualification under 28 U.S.C. § 455

Under relevant provisions of § 455, a judge is required to disqualify himself “in any
proceeding in which his impartiality might reasonably be questioned,” 17 or “where he has a
personal bias or prejudice concerning a party . . .” 18 Other circumstances also require a judge to
disqualify himself, 19 but they are inapplicable to this case. “There is as much obligation for a
judge not to recuse when there is no occasion for him to do so as there is for him to do so when
there is.” 20 The objective standard is “whether a reasonable person, knowing all the relevant
facts, would harbor doubts about the judge’s impartiality.” 21
In Liteky v. U.S., 22 the U.S. Supreme Court discussed § 455 in a criminal appeal. The
Supreme Court referred to § 455(a) as the “catch-all” provision and further elaborated on the
more specific “personal bias or prejudice” standard in § 455(b). The Supreme Court noted that
this personal bias standard is not violated by every unfavorable judicial disposition toward an
individual. 23 “The words connote a favorable or unfavorable disposition or opinion that is
somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon
knowledge that the subject ought not to possess . . . or because it is excessive in degree.” 24

17

28 U.S.C. § 455(a).

18

Id. at § 455(b)(1).

19

Id. at § 455(b)(2)–(5).

20

Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987).

21

U.S. v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (internal quotations and citations omitted).

22

510 U.S. 540 (1994).

23

Id. at 550.

24

Id.

3

II.

Disqualification is Improper

Mr. Webb makes two allegations of bias. First, Mr. Webb’s Motion to Disqualify argued
that “this case is ripe for transfer” where all judges in the district recused on other cases filed by
Mr. Webb resulting in the assignment of those cases to another district within the 10th Circuit. 25
Second, Mr. Webb’s Motion to Disqualify and an earlier mailed letter (“Notification of Extreme
Impartiality”) 26 also argued that “U.S. District Chief Judge David Nuffer had a personal financial
windfall from the newly inserted Defendants in the Amended Complaint filed on 21 August
2015” 27 based on “[proposed] Defendant Durham Jones & Pinegar[’s] merger with his Law Firm
in 2003, just prior to his appointment as a Federal Judicial Officer within the United States
District Court for the District of Utah.” 28
A. Disqualification Based on Prior Recusals in the District of Utah is Improper
Mr. Webb’s Motion to Disqualify argues that “this case is ripe for transfer” 29 and that
the AMENDED COMPLAINT docketed on 21 August 2015, should be recused
by all the current Judicial Officers within the U.S. District Court for the District of
Utah based on their personal bias and prior recusal from Case Nos. 1:15-CV00049-DLR and 2:15-CV-00213-DLR, via the Chief Judge (David Nuffer)
assigning this COMPLAINT to a U.S. District Court within the 10th Circuit Court
of Appeals Jurisdiction outside of the Utah District at his earliest convenience. 30
Mr. Webb brought the two cases he cites against individuals in the Clerk’s Office and the U.S.
Marshal’s Service for the District of Utah. Each district judge in the District of Utah recused, 31

25

Mr. Webb’s Motion to Disqualify at 1–2.

26

Document Lodged Consisting of Correspondence from Plaintiff entitled “RE: Notification of Extreme Impartiality
[sic]” (“Notification of Extreme Impartiality”), docket no. 8, filed Aug. 27, 2015.
27

Id. at 1.

28

Notification of Extreme Impartiality at 1.

29

Mr. Webb’s Motion to Disqualify at 2.

30

Id. at 1.

31

See Webb v. Smith et al, Case No. 1:15-cv-00049-DLR: Order of Recusal (Waddoups), docket no. 7, filed Apr. 28,
2015; Order of Recusal (Jenkins), docket no. 8, filed Apr. 28, 2015; Order of Recusal (Benson), docket no. 9, filed
May 4, 2015; Order of Recusal (Nuffer), docket no. 10, filed May 4, 2015; Docket Text Order of Recusal

4

and the cases were consequently assigned to District Judge David L. Russell from the Western
District of Oklahoma. 32
In both Mr. Webb’s Motion to Disqualify and his Notification of Extreme Impartiality,
Mr. Webb only argues that recusal is merited in this case based on those prior recusals, but does
not argue how the prior recusals are relevant here. Presumably, Mr. Webb’s argument fits under
the provision of § 455 which requires a judge to “disqualify himself . . . [w]here he has a
personal bias or prejudice concerning a party. . . .” 33 Although no reason was stated in the
recusals in the two cases Mr. Webb identified, they were certainly based upon that same statute
because the defendants were individuals working in the District of Utah. The identity of Mr.
Webb as the plaintiff was irrelevant to those recusals. In this case, however, none of the
defendants are court employees or staff, and therefore, the reasoning underlying the prior
recusals in the other cases is entirely inapplicable.
If Mr. Webb argues that a prior recusal because of a defendant’s identity requires
subsequent recusal in any case in which that plaintiff appears, he is wrong. None of the parties in
this case bear any relation to the court. Therefore, no “reasonable person, knowing all the
relevant facts, would harbor doubts about the judge’s impartiality” 34 regarding these parties.

(Campbell), docket no. 11, filed May 4, 2015; Docket Text Order of Recusal (Shelby), docket no. 12, filed May 4,
2015; Order of Recusal (Kimball), docket no. 13, filed May 4, 2015; Docket Text Order of Recusal (Stewart),
docket no. 14, filed May 4, 2015; and Docket Text Order of Recusal (Sam), docket no. 15, filed May 13, 2015. See
also Webb v. Smith et al, Case No. 2:15-cv-00213-DLR: Order of Recusal (Stewart), docket no. 4, filed Apr. 1,
2015; Order of Recusal (Waddoups), docket no. 9, filed Apr. 29, 2015; Order of Recusal (Benson), docket no. 10,
filed May 4, 2015; Docket Text Order of Recusal (Campbell), docket no. 11, filed May 4, 2015; Docket Text Order
of Recusal (Jenkins), docket no. 12, filed May 4, 2015; Order of Recusal (Kimball), docket no. 13, filed May 4,
2015; Docket Text Order of Recusal (Nuffer), docket no. 14, filed May 4, 2015; Docket Text Order of Recusal
(Sam), docket no. 15, filed May 13, 2015; and Docket Text Order of Recusal (Shelby), docket no. 16, filed May 13,
2015.
32

See Webb v. Smith et al, Case No. 1:15-cv-00049-DLR, Docket Text Order of Recusal, docket no. 15, filed May
13, 2015; Webb v. Smith et al, Case No. 2:15-cv-00213-DLR, Docket Text Order of Recusal, docket no. 15, filed
May 13, 2015.
33

28 U.S.C. § 455(b)(1).

34

U.S. v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (internal quotations and citations omitted).

5

B. Disqualification Based on Past Profits or Contact with a
Proposed Defendant is Improper
In Mr. Webb’s Motion to Amend the Complaint, he seeks to add as additional defendants
the law firm of Durham Jones & Pinegar, and two attorneys who work at that firm: Blake R.
Hamilton and Ashley Gregson. Mr. Webb does not articulate whether his first argument targets
the financial aspect of the alleged “personal financial windfall” 35 based on “Defendant Durham
Jones & Pinegar[’s] merger with [the judge’s] Law Firm in 2003,” 36 or whether his complaint is
for potential “personal bias or prejudice concerning a party,” 37 in this case, the law firm of
Durham Jones & Pinegar. Mr. Webb’s motion to amend his complaint 38 has yet to be decided, so
the proposed defendants are not yet present in the case. Regardless, neither of his allegations of
financial interest or personal bias requires disqualification.
First, there was never a “windfall.” To the extent Mr. Webb refers to profits from the
merger, the statute addresses the type of financial interest that requires disqualification. Under
§ 455, a judge must disqualify himself if “he . . . his spouse or minor child residing in his
household has a financial interest in the subject matter in controversy or in a party to the
proceeding, or any other interest that could be substantially affected by the outcome of the
proceeding.” 39 The statute plainly targets existing financial interests that could be affected by the
outcome of the case, not past financial interests that bear no relation to the outcome. Therefore,
disqualification is not appropriate here under the plain language of the existing financial interest
provision of § 455.
35

Mr. Webb’s Motion to Disqualify at 1.

36

Notification of Extreme Impartiality at 1.

37

Id. at § 455(b)(1).

38

Pro Se Plaintiff’s Motion in Accordance with FRCP Rule 15 and Local Rule DUCIVR 15-1, docket no. 7, filed
Aug. 21, 2015.
39

28 U.S.C. § 455(b)(4) (emphasis added).

6

Disqualification is also not appropriate under the more relevant provisions of § 455
regarding a judge’s “personal bias or prejudice concerning a party” 40 or when a judge’s
“impartiality might reasonably be questioned.” 41 Courts have determined under similar
circumstances that even partnership at a firm, let alone profits from a firm merger, when
removed by time, do not require disqualification. 42 Furthermore, the judge was a partner at the
firm of law firm of Snow & Nuffer and resigned on December 31, 2002, never working for or
being associated with the law firm of Durham Jones & Pinegar. Therefore, these are not
circumstances where “a reasonable person, knowing all the relevant facts, would harbor doubts
about the judge’s impartiality” 43 regarding this proposed defendant. There was never a
partnership or employment relationship.
Although Mr. Webb’s Motion to Disqualify focuses solely on Durham Jones & Pinegar,
the two individual defendants that Mr. Webb has moved to add are similarly unproblematic.
Blake R. Hamilton and Ashley Gregson, attorneys at Durham Jones & Pinegar, were admitted to
the Utah State Bar in 2007 and 2011 respectively. In addition to the actual and temporal
separation between the judge and the law firm discussed above, these attorneys were not even
licensed to practice until well after the judge became a full-time magistrate judge in 2003.
Therefore, these are not circumstances where “a reasonable person, knowing all the relevant

40

Id. at § 455(b)(1).

41

28 U.S.C. § 455(a).

42

See, e.g., Hauptmann v. Wilentz, 555 F.Supp. 28 (D.C.N.J. 1992) (disqualification not required where trial judge’s
partnership terminated 13 years prior to trial); School Dist. Of Kansas City, Missouri v. State of Mo., 438 F.Supp.
830 (W.D. Mo. 1977) (disqualification not required where the judge’s former law firm represented a party whom the
judge had represented over 15 years before the filing of the case, and every lawyer who was active in the case joined
the judge’s former firm after the judge’s appointment); In re Syntax-Brillian Corp., 400 B.R. 21 (Bankr. D. Del.
2009) (disqualification not required where bankruptcy judge’s representation of debtors’ creditor occurred more than
three years before, had long been concluded, and was entirely unrelated to debtors’ case); and In re Johnson-Allen,
68 B.R. 812 (Bankr. E.D. Pa. 1987) (disqualification not required where bankruptcy judge’s prior association with
debtor’s counsel occurred over six years before and was unrelated to the debtor’s case).
43

U.S. v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (internal quotations and citations omitted).

7

facts, would harbor doubts about the judge’s impartiality” 44 regarding proposed defendants
Blake R. Hamilton and Ashley Gregson.

ORDER
It is hereby ORDERED that, for the reasons state above, Defendants’ Motion to
Disqualify45 is DENIED.

Signed this 22nd day of October, 2015.
BY THE COURT:

________________________________________
David Nuffer
United States District Judge

44

U.S. v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (internal quotations and citations omitted).

45

Motion Seeking Recusal [U.S. District Chief Judge David Nuffer] in Accordance with 28 U.S.C. 455,
Encompassing the Official Court Record Evidenced in the Docket Sheets, docket no. 12, filed Oct. 15, 2015.

8