Guerrero v. Weeks
Filing
30
MEMORANDUM OPINION re: Pltf's Motion to Recuse the Judge and Request for Reassignment. Signed by District Judge James C. Cacheris on 11/05/13. (pmil, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ESPERANZA GUERRERO,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
AMY T. WEEKS,
Defendant.
1:13cv837(JCC/JFA)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Plaintiff Esperanza
Guerrero’s (“Plaintiff” or “Guerrero”) Motion to Recuse the
Judge and Request for Reassignment (“Motion”).
[Dkt. 19.]
For
the reasons explained below, the Court will deny this motion.
I.
Background
Defendant Amy Weeks is a former Attendance Truancy
Officer for the Prince William County Public Schools.
at 1.)
(Compl.
Plaintiff Esperanza Guerrero (“Plaintiff” or “Guerrero”)
is the aunt of R. Munguia, a student who in December of 2007 was
enrolled at Osburn Park High School in Prince William County.
Plaintiff’s Complaint alleges that Defendant fabricated the
truancy summons served on November 24, 2007, which lead to a
1
confrontation with the police and Plaintiff’s subsequent arrest.
(Compl. ¶ 28.)
On June 28, 2013, Plaintiff filed suit in the General
District Court of Prince William County, Virginia.
[Dkt. 1-4.]
On July 10, 2013, Defendant filed a Notice of Removal stating
that this Court has jurisdiction over the matter pursuant to 28
U.S.C. § 1331 and 1441(a) because Plaintiff’s Warrant in Debt
alleges violations of Title VI of the Civil Rights Act of 1964,
Section 504 of the Rehabilitation Act of 1973, Title II of the
ADA and alleges a deprivation of constitutional rights in
violation of U.S.C. § 1983.
[Dkt. 1.]
On August 12, 2013,
Defendant filed her Motion to Dismiss Amended Complaint.
10.]
[Dkt.
On September 26, 2013, the Court granted Defendant’s
Motion to Dismiss and dismissed Plaintiff’s Amended Complaint
with prejudice.
[Dkts. 15-16.]
On September 26, 2013, Plaintiff moved to recuse Judge
James C. Cacheris and to have the case assigned to a different
judge.
[Dkt. 17.]
On October 7, 2013, Defendant filed her
opposition to Plaintiff’s motion for recusal.
[Dkt. 21.]
On
October 11, 2013, Plaintiff filed a Notice of Appeal as to the
Court’s order of September 16, 2013, dismissing her case with
prejudice.
reply.
[Dkt. 23.]
[Dkts. 25-26.]
On October 22, 2013, Plaintiff filed her
On October 28, 2013, Plaintiff filed a
motion entitled “Motion for an Extension on Replying to Request
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for Consolidate and Motion to Reply to Motion for
Reconsideration and Request to Consolidate.”
[Dkts. 27-29.]
Plaintiff’s motion for recusal is before the Court.
II.
Standard of Review
28 U.S.C. § 455(a) requires that a judge disqualify
himself “in any proceeding in which his impartiality might
reasonably be questioned.”
This objective test asks “whether a
reasonable person would have a reasonable basis for questioning
the judge’s impartiality, not whether the judge is in fact
impartial.”
United States v. Cherry, 330 F.3d 658, 665 (4th
Cir. 2003) (quoting In re Beard, 811 F.2d 818, 827 (4th Cir.
1987)) (internal quotation marks omitted).
28 U.S.C. § 455(b) further requires that a judge
disqualify himself in certain enumerated circumstances,
including: (1) “where he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding”; (2) where in
private practice he served as lawyer in the matter in
controversy; and (3) where as a government employee he
participated in the matter in controversy “as counsel, adviser
or material witness concerning the proceeding or expressed an
opinion concerning the merits of the particular case in
controversy.”
28 U.S.C. § 455 (b)(1)-(3).
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Both § 455(a) and § 455(b)(1), concerning a judge’s
“personal bias or prejudice” and “personal knowledge,” “carry an
extrajudicial source limitation.”
Belue v. Leventhal, 640 F.3d
567, 573 (4th Cir. 2011) (quoting Litkey v. United States, 510
U.S. 540, 551, 114 S. Ct. 1147, 127 L. Ed 2d 474 (1995)).
Bias
or prejudice must “stem from a source outside of the judicial
proceeding at hand in order to disqualify a judge.”
Id.
(citations omitted).
III.
Analysis
As a threshold matter, the Court notes that it may
address the Motion to Recuse, despite the pending appeal.
A
court “retains jurisdiction as to matters not involved in that
appeal, including whether or not it is appropriate for the
undersigned to recuse.”
Pitrolo v. County of Buncombe, N.C.,
Civil No. 1:06cv199, 2013 WL 588753, at *2 (W.D.N.C. Feb. 13,
2013); see Lopez Dominguez v. Gulf Coast Marine & Associates,
Inc, 607 F.3d 1066, 1073 (5th Cir. 2010) (“[H]is recusal could
be viewed as being in aid of this appeal. . .”).
Moreover, “a
district court does not lose jurisdiction to consider and rule
on matters in aid of an appeal.”
Id. at *3 (citing Lytle v.
Griffith, 240, F.3d 404, 408 (4th Cir. 2001)).
Plaintiff has
appealed from this Court’s ruling dismissing her action against
Weeks with prejudice.
concerning recusal.”
The appeal does not involve “any issues
Id. at 2.
Accordingly, the Court retains
4
jurisdiction over Plaintiff’s motion to recuse and will address
this issue.
The thrust of Plaintiff’s argument is that the Court
was biased against her because it presided over a previous
action brought by Plaintiff arising out of the same incident as
the instant case.
(Guerrero v. Deane, Civil Action No.
1:09cv1313 (JCC/ TRJ)). 1
Plaintiff argues that this prior
judicial exposure to the factual underpinning of Plaintiff’s
claim requires disqualification.
(Mem. at 2, “Judge James C.
Cacheris, United States District Court is a Material Witness to
the previous case . . . and should be disqualified”.) 2
Defendant
argues that (1) Plaintiff fails to provide any facts indicating
that the Court’s actions were based upon improper grounds; (2)
Plaintiff’s motion is not timely; and (3) Plaintiff does not
allege any bias stemming from an extrajudicial source.
1
In Guerrero v. Deane, the Guerrero family brought an action under 42 U.S.C.
§ 1983, alleging that civil rights violations had occurred during an
officer’s service of a truancy summons at the family’s home. Plaintiff lost
at trial in this Court in Deane, (1:09cv1313 [Dkt. 1]) and the Fourth Circuit
Court of Appeals affirmed. (1:09cv1313 [Dkt. 300, 322].) On July 17, 2013,
the Court denied Plaintiff’s Motion for reconsideration. (1:09cv1313 [Dkt.
300].) On August 9, 2013, Plaintiff filed a notice of appeal with the Fourth
Circuit as to the order on her motion for reconsideration. (1:09cv1313 [Dkt.
331].)
2
Plaintiff makes a number of other allegations, including that the Court has
“allow[ed] continuing torts by all parties involved to cover up [their]
crime;” (Mem. at 2) and that the Court “refuse[es] to see” a pattern of
discrimination in the actions Prince William County officials. (Mem. at 3.)
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A.
Extrajudicial Source Rule
Plaintiff’s claim must be denied because she fails to
allege any bias stemming from a non-judicial source.
The
extrajudicial source rule requires that bias or prejudice arise
from “events, proceedings, or experiences outside the
courtroom.”
Sales v. Grant, 158 F.3d 768, 781 (4th Cir. 1998).
“[O]pinions formed by the judge in the course of the current
proceedings or of prior proceedings almost never constitute a
valid basis for a bias or partiality motion.”
at 573 (quoting Litkey, 510 U.S. at 555).
Belue, 640 F.3d
Moreover, “judicial
remarks that are ‘critical or disapproving of, or even hostile
to, counsel, the parties or their cases ordinarily do not
support a bias of partiality challenge.’”
510 U.S. at 555).
Id. (quoting Litkey,
Courts have therefore granted recusal motions
only in “cases involving particularly egregious conduct.” 3
Id.
The crux of Plaintiff’s allegations is that Court had
“knowledge of facts from earlier participation in the case”
because the Court presided over a related action - Guerreo v.
3
See Sewell v. Strayer Univ., Civil Action No. DKC 12-2927, 2013 WL 3465210,
at *3 (D. Md. July 9, 2013) (citing Belue, 640 F.3d at 573) (observing that
“the only cases where courts have granted recusal motions based on in-trial
conduct tend to involve singular and startling facts,” such as where the
judge noted that German–Americans have hearts “reeking with disloyalty”;
where the judge made clear from the beginning of the case that his goal was
to “recover funds that the defendants had taken from the public”; and also
where the judge “directed profanities at Plaintiffs or Plaintiffs' counsel
over fifteen times and refused to allow the plaintiffs to present argument at
the sanctions hearing)). Plaintiff makes no allegations of improper in-trial
conduct on the part of the Court that even “come[s] close to the type of
egregious judicial conduct that requires recusal.” Id.
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Deane.
(Mem. at 2.)
Plaintiff points only to judicial sources
of bias; she makes no claim that the Court had any personal bias
against her.
This judge has no bias or prejudice in favor or
against any party in the instant litigation.
Accordingly,
Plaintiff’s claim must be denied.
B.
Conculsory Allegations
Furthermore, Plaintiff states no facts supporting any
of her conclusory allegations.
Plaintiff alleges that the Court
has permitted local government officials to engage in a
conspiracy to infringe upon her rights.
(Mem. at 3.)
She
further accuses the Court of being on “one side on both of
plaintiff’s cases” and claims that the Court did not liberally
construe her Complaint, as is required for a pro se litigant. 4
(Mem. at 3.)
A judge should not recuse himself based on unsupported
allegations.
See Grandison v. Corcoran, No. 00-5, 2000 WL
1012953, at *17 (4th Cir. July 24, 2000) (citing In re Kaminski,
960 F.2d 1062, 1065 n. 3 (D.C. Cir. 1992) (“A judge should not
4
The Court agrees that Plaintiff, as a pro se litigant, should not be held to
a stringent pleading standard. Indeed, the Court liberally construed
Plaintiff’s Amended Complaint at the motion to dismiss stage. Nevertheless,
the Court found that Plaintiff’s Amended Complaint was clearly time-barred
and therefore subject to dismissal. (see [Dkt. 15].) See Moore v. South
Carolina Dept. of Corrections, Civil Action No. 4:06-3167-MBS, 2008 WL
285979, at *2 (D.S.C., July 21, 2008) (“Compliance with the applicable
statute of limitations is a clear requirement for all litigants, whether with
counsel or appearing pro se as does plaintiff in this case.”). Moreover,
even were the Court to accept this allegation as true – which it does not Plaintiff has alleged no bias or prejudice on the part of the Court that
would support recusal.
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recuse himself based on conculsory unsupported or tenuous
allegations”)); United States v. Cherry, 330 F.3d 658, 665 (4th
Cir. 2003) (“A presiding judge is not, however, required to
recuse himself simply because of unsupported, irrational of
highly tenuous speculation.”) (citations omitted).
has advanced no facts in support of her allegations.
Plaintiff
While she
accuses the Court, the defendant and the attorneys in this case
of various forms of misconduct, she has not advanced any
plausible facts in support of these claims.
C.
(Mem. at 3.) 5
Timeliness
Defendant further argues that Plaintiff’s claim –
raised only after the Court dismissed her complaint with
prejudice – is not timely.
(Opp. at 4.)
The Court notes that
disqualification must be raised “at the earliest moment after
knowledge of the facts.”
Satterfield v. Edenton-Chowan Ed. Of
Ed., 530 F.2d 567, 574-75 (4th Cir. 1975).
Plaintiff’s motion
fails to present any grounds for this Court’s recusal; the Court
therefore declines to further address the timeliness of the
motion.
5
Plaintiff states, for example, “Judge Cacheris has allowed injustices by
allowing Amy Weeks, her Attorney, County Attorney and Plaintiff Attorney to
lie, hide evidence, distorted facts to engage in cover up and withhold
favorable evidence and allowed fabricated falsely document irrelevant to the
cases. . .” (Mem. at 3.) Plaintiff provides no support for these sweeping
allegations.
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IV.
Conclusion
For the reasons explained above, this Court will deny
Plaintiff’s Motion.
To the extent that Plaintiff’s Motion to
Consolidate, [Dkt. 29], requests that Plaintiff’s case be
reassigned, it is likewise denied.
An appropriate order will issue.
November 5, 2013
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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