Opinion
CIVIL ACTION NO. 3:04cv888 (SRU).
December 15, 2006
RULING ON MOTION TO DISQUALIFY
Two of the defendants, Trevor Horton and Luis Ramos, have moved pursuant to 28 U.S.C. § 455 that I disqualify myself from any further proceedings in this case. These defendants seek my disqualification "based on the court's statements during the September 18, 2006 hearing on Defendants' Motion for Summary Judgment." Memorandum of Law in Support of Defendants' Motion to Disqualify ("Memo. of Law") at 1. The movants did not file an affidavit in support of their motion, but instead attached a copy of the transcript of the summary judgment oral argument, which I have read in its entirety.
For the reasons set forth below, the motion to disqualify is meritless.
I. Background
Michael Hynd brought a nine-count complaint against the City of Danbury and two Danbury police officers, Luis Ramos and Trevor Horton. Hynd alleges that, in June 2002, Sue Raymond was illegally double-parked and blocking traffic on Main Street in Danbury. Hynd was a passenger in a car blocked by Raymond. A number of drivers, including the driver of Hynd's vehicle, honked their horns, to which Raymond repeatedly responded by holding up her middle finger. An argument ensued between Hynd and Raymond, who followed Hynd while talking into her cellular telephone. About two hours later, Danbury police officers arrived at Hynd's home. Hynd was not home, but the officers reached Hynd by phone and informed him that there was a warrant for his arrest in connection with the confrontation with Raymond, who claimed Hynd had spit on her.
Hynd reported to the Danbury Police Department, where he was arrested by Officer Horton. Hynd was fingerprinted and photographed. Hynd's $250 bond was paid by his friend. Officer Horton then told Hynd he could go, but instead of releasing him, took him to a room in which several uniformed and plain-clothed officers were present. Among those officers was Detective Ramos, Raymond's boyfriend. Ramos verbally abused Hynd, stating, "In the old days I could kill you right now, but I can't kill you, so I'm going to be on your ass every single day for the rest of your life and bust you for every little thing you do." Compl. ¶ 44. While interrogating Hynd and demanding he confess, Ramos struck Hynd with his forearm, "knocking Mr. Hynd and his chair against the adjoining wall." Id. ¶ 43.
Following discovery, the defendants moved for summary judgment. I heard oral argument of that motion for two hours on September 18, 2006. Much of the argument focused on the viability of the substantive due process claim. That claim was based on the allegation that the defendants failed to protect Hynd from a danger that the defendants themselves created.
The defendants' counsel repeatedly asserted that the plaintiff had not made a state-created danger claim as a theory supporting the substantive due process claim. E.g., Tr. 42 ("[I]t's not alleged."), 43 ("There's certainly no allegation of a state created danger, Your Honor."), 47 ("Your Honor first said that this is a state created danger. My argument is that's not a legal claim being made."), 49 ("Your Honor, I would like an opportunity to legally address an argument that's not in the complaint."), 50 ("If Your Honor's suggesting that the plaintiffs should amend their complaint to include a state created danger, I would like an opportunity to address that legally."), 51 ("I wasn't prepared to argue state created danger. . . ."), 55 ("There's no claim that he felt that Horton put him in a situation that created a danger."). In fact, the plaintiff expressly raises a state-created danger claim in the complaint. Compl. ¶ 80 ("[T]he defendant officials had an affirmative duty to protect Mr. Hynd from danger and failed because they created the danger to which he was exposed.") (emphasis added). Such a "state-created danger" theory can form the basis of a substantive due process violation. See Pena v. Deprisco, 432 F.3d 98, 108 (2d Cir. 2005); Hemphill v. Schott, 141 F.3d 412, 419 (2d Cir. 1998) ("where the state actors actually contributed to the vulnerability of the plaintiff . . . a violation of the Due Process Clause does occur.").
At the end of the argument, I issued an oral ruling granting in part and denying in part, the motion for summary judgment. I granted the motion with respect to claims of procedural due process, Tr. at 66; granted the motion with respect to substantive due process claims against Ramos, id. at 66-67; denied the motion with respect to substantive due process claims against Horton, id.; denied the motion with respect to Fourth Amendment claims, id. at 68-69; granted the motion with respect to the Eighth Amendment claims, id. at 69; granted the motion with respect to the Equal Protection claims, id. at 69-70; granted the motion with respect to the Monell claims, id. at 70; and granted the motion to the extent that the complaint raised claims under the Fifth Amendment, id. at 73-74.
About six weeks after the ruling on the motion for summary judgment, the movants filed their motion to disqualify.
II. Discussion
A. The Standard Governing Disqualification
The motion to disqualify was made pursuant to 28 U.S.C. § 455. Section 455 provides, in relevant part, that:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. . . .28 U.S.C. § 455.
The papers supporting a motion for disqualification are considered against an objective standard. See Apple v. Jewish Hospital Medical Center, 829 F.2d 326, 333 (2d Cir. 1987); Holmes v. NBC/GE, 925 F. Supp. 198, 201 (S.D.N.Y. 1996). Under that standard, the trial court must determine, "[whether] a reasonable person, knowing all the facts and circumstances, would conclude that the trial judge's impartiality could reasonably be questioned." United States v. Bayless, 201 F.3d 116, 126 (2d Cir. 2000).
The judge to whom a party directs a recusal motion, however, is presumed to be impartial, Wolfson v. Palmieri, 396 F.2d 121, 126 (2d Cir. 1968), and the burden the movants must carry to overcome that presumption is "substantial." United States v. IBM Corp., 475 F. Supp. 1372, 1379 (S.D.N.Y. 1979); Holmes, 925 F. Supp. at 201; McCann v. Communications Design Corp., 775 F. Supp. 1506, 1522 (D. Conn. 1991). In passing on the grounds of personal bias and prejudice, a judge is required to evaluate the legal sufficiency of the allegations. Berger v. United States, 255 U.S. 22, 36 (1921). The requirement of legal sufficiency has been interpreted to mean that the presiding judge must determine whether the reasons and facts stated by the movants "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Id. at 33-34.
B. Legal Sufficiency of the Motion
The motion to recuse must be denied. The transcript of the oral argument of the summary judgment motion in this case, which provides the entire factual basis for the motion to disqualify, does not set forth facts that could lead a reasonable person to believe that my impartiality in this case might reasonably be questioned.
The movants argue that I am personally biased against them, as shown by statements I made during oral argument of the summary judgment motion. The statements relied upon are principally those in which I noted that, under plaintiff's version of events, the conduct of the defendants was conscience shocking. See Memo. of Law at 4-7 ("That is conscience shocking." "That is shocking." "[I]f they did this, this is a very shocking case and the jury's going to have to resolve that.").
The movants' argument fails for several reasons. First, under Liteky v. United States, 510 U.S. 540 (1994), the movants must show that a possibly critical comment made by the court was motivated by some extrajudicial source. Id. at 554. To warrant disqualification, a trial judge's alleged bias or prejudice "must arise by virtue of some factor which creates partiality arising outside of the events which occur in the [case] itself," In re IBM Corp., 618 F.2d 923, 927 (2d Cir. 1980). As the Supreme Court has held, "[t]he alleged bias and prejudice to be disqualifying 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." United States v. Grinnell Corp., 384 U.S. 563, 583 (1966).
Here the movants expressly rely on what I said about the merits of their case, and only what I said in open court. There is no extrajudicial source of bias or prejudice asserted. There is no suggestion that I have ever had any contact with any of the parties to this case; indeed, I have not. There is no suggestion that I have ever had any type of professional contact with any of the lawyers in this case, except in my role as a judge; indeed, I have not. There is no suggestion that I or any relative close to me has any financial stake in the outcome of this action; of course, we do not. The moving papers complain only about comments I made about the merits of the case when deciding whether to grant or deny the summary judgment motion. Accordingly, the motion to disqualify necessarily fails. Liteky, 510 U.S. at 555 (Only in the "rarest circumstances" can judicial rulings alone "evidence the degree of favoritism or antagonism required . . . when no extrajudicial source is involved.").
Second, the statements I made at oral argument do not imply any bias or prejudice. I could hardly have ruled on the summary judgment motion without indicating that the plaintiff's version of events, if believed by the jury, shocks the conscience, because that is the precise legal standard I was required to apply with respect to the substantive due process claim. As the Supreme Court has noted, "in a due process challenge to executive action, the threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). The substantive due process clause "precludes the government from engaging in conduct that `shocks the conscience' or interferes with rights `implicit in the concept of ordered liberty.'" Avramenkov v. INS, 99 F. Supp. 2d 210, 215 (D. Conn. 2000). A defendant's conduct shocks the conscience when it is "so outrageously arbitrary as to constitute a gross abuse of governmental authority." Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999).
Because my comments that the defendants' alleged conduct shocks the conscience were made as a substantive legal ruling that reflects the appropriate legal standard for the cause of action at issue, they are wholly insufficient to support a motion to disqualify.
Finally, an objective reading of the transcript of the oral argument as a whole dispels any suggestion of bias or prejudice on my part. I granted the motion for summary judgment almost in its entirety. Those rulings are difficult to square with a prejudice in favor of plaintiff or against defendants. In addition, my comments directed at the plaintiff's arguments concerning the Eighth Amendment claim, equal protection claim, and Monell claim were at least as critical as my comments directed to the defendants' arguments concerning the substantive due process claim. No objective observer could have thought I was favoring one side or the other.
At times, I did speak frankly to defense counsel, who apparently did not understand that this is a potentially serious case. A judge's efforts to alert a lawyer to the weaknesses in his clients' arguments, however, is not improper — to the contrary. Disqualification should not be the consequence of a judge's wake-up call to an apparently oblivious advocate.
III. Conclusion
The Second Circuit has held that "a trial judge is equally obligated not to recuse himself when the facts do not give fair support to a charge of prejudgment, as he is to excuse himself when the facts warrant such action." United States v. Diorio, 451 F.2d 21, 24 (2d Cir. 1971), cert. denied, 405 U.S. 955 (1972); see also In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988). Furthermore:
"It is vital to the integrity of the system that a judge not recuse himself on unsupported, irrational or highly tenuous speculation." McCann, 775 F. Supp. at 1523. Recusal motions should not be used as strategic devices to "judge shop." Id. at 1522. Further, a judge must be free to make rulings on the merits in a case without the apprehension that if he rules unfavorably to one litigant, he may have created the impression of bias or impartiality. Id.Franco v. Yale University, 2002 WL 63803, *4 (D. Conn. 2002). Because the defendants have set forth no adequate basis for me to order my disqualification and because my impartiality in this proceeding cannot reasonably be questioned by an objective observer, the motion to disqualify is DENIED.
It is so ordered.