Opinion
Civil No. 00-6040-HO.
June 26, 2001.
O R D E R
Plaintiff alleges violations of the federal wiretap law regarding the recording of conversations he had with visitors while detained at the Lane County Jail. Plaintiff names City of Eugene Police Detectives Scott McKee and Terry Willis, the City of Eugene, the Eugene Police Department, Lane County Sheriff Jan Clements, and the Lane County Corrections facility as defendants. Plaintiff moves for transfer of venue to Colorado and demands disqualification of all Oregon District Court Judges (#45). The City and County defendants move for summary judgment (#36, #41).
Plaintiff requests transfer to Colorado because that is where he is now located. However, none of the defendants are located there and none of the transactions alleged to give rise to plaintiff's cause of action occurred in Colorado. Furthermore, the interests of justice do not favor a transfer to the District Court in Colorado. The motion to transfer venue is denied. Plaintiff next asserts that
[i]t has come to be known and judicial notice is requested as to Chief Judge Hogan maintains a secret sentencing Council. He quoted one of it member's opinions at my sentencing in case No. 60019-HO-01. The Statement contained a biased remark from a member Judge of the secret Council, Hogan refuses to disclose the members' names and transcripts of the illegal proceeding. It can be assumed that all or any District Judge of Oregon is a member of this council. . . . These judges are disqualified to preside over any of my proceedings.
Motion for Transfer of case and disqualification of Judge of District of Oregon (#45) at p. 1. Plaintiff also raises concerns as to Judge Jones' impartiality, to whom this case was originally assigned.
The court treats the motion as a motion to recuse all judges of this district. "The standard for recusal is `whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.'" Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983)). The alleged "judicial bias must arise from extrajudicial sources." In re Corey, 892 F.2d 829, 839 (9th Cir. 1989). The factors that determine whether an act by a judge is a judicial one relate to the nature of the act itself. Stump v. Sparkman, 435 U.S. 349, 362 (1978). The critical inquiry is whether the function is normally performed by a judge. Id.
A judge's previous order alone is not a sufficient basis for recusal of the judge. Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984). Moreover, a judge is not disqualified by a litigant's intemperate and scurrilous attacks. United States v. Studley, 783 F.2d 934 (9th Cir. 1986). Plaintiff's frivolous attacks against the judges of this district do not provide a basis for recusing any judge of this district. The motion is denied.
The defendants raise several grounds for summary judgment. Among the grounds asserted is issue preclusion.
The subject of plaintiff's claims involves the communications by plaintiff with visitors at the Lane County Jail. Plaintiff alleges that certain defendants utilized recording equipment at the Jail to record some of plaintiff's communication during visitation. The communication facilities at the visitor area at the Jail do indeed enable recording of conversations and plaintiff's conversations were recorded. There are signs in the area which warn that conversations may be recorded.
In the criminal case against plaintiff, Cr. No. 98-60019-HO, plaintiff moved to suppress all records of communications between himself and visitors and also moved to dismiss the charges based on the recordings. Among the grounds asserted in support of the motions was the assertion that the recordings of the communications violated the state and federal wiretap laws. The court denied the motions finding the wiretap statutes do not apply to interceptions by jail officials in the ordinary course of their duties and that the Lane County jailers tape conversations of inmates in the ordinary course of their duties. See Mockaitis, 104 F.3d at 1531. In addition, plaintiff had notice that his communications were being monitored (inmates given policy book advising that their mail could be read and conversations recorded). See ORS § 41.910 (Evidence of contents of any wire or oral communication not admissible unless the communication was intercepted by jail official and the participant against whom the communication is being offered had actual notice that the communication was being monitored or recorded).
A plaintiff may be estopped from bringing a civil action to challenge an issue which was distinctly put at issue and directly determined in a previous criminal action. Ayers v. City of Richmond, 895 F.2d 1267, 1270-71 (9th Cir. 1990). Under issue preclusion, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir. 1995). Issue preclusion applies where (1) the issue necessarily decided at the previous proceeding is identical to the one which is sought to be relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the first proceeding. See Trevino v. Gates, 99 F.3d 911, 923 (9th Cir. 1996). Additionally, the responding party must have had a full and fair opportunity to be heard. Columbia Steel Casting Co., Inc. v. Portland General Electric Co., 111 F.3d 1427, 1442, n. 5 (9th. cir. 1997). Plaintiff's allegations in this civil action are identical to the issues necessarily decided in plaintiff's motions to suppress and dismiss in the previous criminal action. The criminal action ended with a final judgment on the merits and plaintiff had a full and fair opportunity to be heard in the criminal proceedings. Accordingly, the motion for summary judgment is granted.
CONCLUSION
For the reasons stated above, plaintiff's motion to transfer this case to the District of Colorado and disqualify the Judges of this District (#45) is denied. Furthermore, defendants' motions for summary judgment (#36 and #41) are granted and this action is dismissed.