Barksdale v. Emerick

853 F.2d 1359, 1988 WL 82756

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 12, 1988
• Docket: No. 87-1181
• Status: Published

Opinions

MERRITT, Circuit Judge.

Plaintiff appeals from the District Court’s order of dismissal, order denying appellant’s motion for rehearing or reconsideration, and order denying appellant’s motion to disqualify. Because the District Court failed to comply with procedural rules concerning disqualification, we vacate the judgment and remand this case for further proceedings.

From February 1983 through June 1983, twenty-year-old Edmond Barksdale was a periodic resident of the Macomb County Jail. During this time, he suffered from steroid dependent bronchial asthma, characterized by numerous attacks of bilateral inhalatory and expiratory wheezing, labored expiration, congestion, and difficulty in breathing.

On June 20 and 21, 1983, while in the care and custody of appellees, Edmond Barksdale suffered a severe asthma attack, exhibited by an inability to breathe, coughing fits, wheezing fits, and congestion. Although he requested emergency medical care, including immediate hospitalization and treatment from a pulmonary specialist, his request was denied. Instead, Mr. Barksdale was removed from his cell and placed into an observation cell, commonly called the “bull pen.”

Edmond Barksdale was in the “bull pen” again on June 22, 1983, when he was observed by appellee Jail Administrator Donald Amboyer. Later that day, Edmond Barksdale was transported to Macomb County General Hospital where he underwent emergency life-saving procedures. These procedures proved futile. Mr. Barksdale lapsed into a coma, and he died on June 29, 1983, as the result of status asthmaticus.

On March 1, 1985, appellant filed a four count complaint: count one contains 42 U.S.C. § 1983 Eighth Amendment claim alleging deliberate indifference to serious medical needs; counts two through four contain pendent state law claims sounding in tort and contract.

In November and December, 1986, defendants filed motions to dismiss and for summary judgment based on several asserted grounds. On January 26, 1987, the District Court entered a memorandum opinion and order granting the motion for summary judgment because (1) the “policy or custom” requirement of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), was not satisfied, (2) “no individual involvement” of certain appellees had been demonstrated, and (3) “uncontradicted evidence [of] the presence of extensive medical treatment” indicated that “no material Eighth Amendment claim is present.” The District Court then dismissed the state law claims as a matter of discretion under United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). On that same day, the District Court entered judgment of dismissal for all defendants on all counts. Thereafter, on February 5, 1987, appellant filed a motion for recusal pursuant to 28 U.S.C. § 455(a) and a motion for rehearing or reconsideration. The District Court denied these motions on February 10, 1987.

On appeal, plaintiff argues both that the District Judge should have recused himself and that a portion of the summary judgment entered was both procedurally improper as a sua sponte grant without notice and also wrong on the merits. Due to our disposition of the recusal issue, we do not reach the summary judgment questions on this appeal.

28 U.S.C. § 455(a) provides:

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The legislative history of the 1974 amendments to section 455 explains subsection (a) as follows:

Subsection (a) of the amended section 455 contains the general, or catch-all, provision that a judge shall disqualify himself in any proceeding in which “his impartiality might reasonably be questioned.” This sets up an objective standard, rather than the subjective standard set forth in the existing statute through use of the phrase “in his opinion”. This general standard is designed to promote public confidence in the impartiality of the judicial process by saying, in effect, if there is a reasonable factual basis for doubting the judge’s impartiality, he should disqualify himself and let another judge preside over the case. The language also has the effect of removing the so-called “duty to sit” which has become a gloss on the existing statute. See Edwards v. United States, [334 F.2d 360 (5th Cir.1964)]. Under the interpretation set forth in the Edwards case, a judge, faced with a close question on disqualification, was urged to resolve the issue in favor of a “duty to sit”. Such a concept has been criticized by legal writers and witnesses at the hearings were unanimously of the opinion that elimination of this “duty to sit” would enhance public confidence in the impartiality of the judicial system.

While the proposed legislation would remove the “duty to sit” concept of present law, a cautionary note is in order. No judge, of course, has a duty to sit where his impartiality might be reasonably questioned. However, the new test should not be used by judges to avoid sitting on difficult or controversial cases.

At the same time, in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant’s fear that a judge may decide a question against him into a “reasonable fear” that the judge will not be impartial. Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice.

Finally, while the proposed legislation would adopt an objective test, it is not designed to alter the standard of appellate review on disqualification issues. The issue of disqualification is a sensitive question of assessing all the facts and circumstances in order to determine whether the failure to disqualify was an abuse of sound judicial discretion.

H.R.Rep. No. 1453, 93d Cong.2d Sess. 4-5, reprinted in 1974 U.S.Code Cong. & Admin.News 6351, 6354-55 (emphasis original).

In the instant case, appellant filed a motion for recusal on February 5, 1987, ten days after the entry of dismissal. The motion recited that the District Judge had “previously acknowledged that it is personally acquainted with” two defendants, Hackel and Amboyer, and that within “the last week, Plaintiffs counsel has learned that the son of [Sheriff Hackel] is a law clerk to this Court.” ¹ The District Court’s order denying the motion for recusal reads in full:

The Court having disclosed to counsel that one of its law clerks was related to a Defendant party herein at the July 8, 1986 status conference and counsel having voiced no objections and the Court further having insured that the subject clerk was to have no contact whatsoever with this matter, Plaintiff’s belated Motion to Disqualify is DENIED.

Section 455(e) provides in pertinent part:

Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.

(Emphasis added.) There is no disclosure “on the record” and therefore no properly obtained “waiver.” It is obvious that the District Court did not comply with this subsection’s disclosure and waiver requirements, which its plain language, legislative history, and the case law tell us must be strictly construed. See, e.g., United States v. Murphy, 768 F.2d 1518, 1538-39 (7th Cir.1985), cert. denied, 475 U.S. 1012, 106 S.Ct. 1188, 89 L.Ed.2d 304 (1986); Portasknick v. Port City Construction Co., 609 F.2d 1101, 1114-15 (5th Cir.) (dicta), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed. 2d 22 (1980). Our holding is confined to the waiver issue. Lacking a full record, or appropriate findings and conclusions, we express no opinion on the necessity for recusal of the District Court under § 455(a).

Our view of the procedure to be followed in dealing with issues under § 455 is reinforced by the Supreme Court’s recent decision in Liljeberg v. Health Services Acquisition Corp., — U.S. - 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988), applying § 455 strictly and holding that § 455 should “in proper cases, be applied retroactively” in order “to rectify an oversight and to take the steps necessary to maintain public confidence in the impartiality of the judiciary.” Id. at -, 108 S.Ct. at 2203. The fact that one of the members of the judge’s small staff in chambers is the son of one of the litigants in a case, although not a per se basis for disqualification, deserves careful consideration. The judge states that he disclosed his acquaintanceship with that litigant, but we have no information regarding its extent. Plaintiff should be given the opportunity to develop a “full ... record of the basis for disqualification” in accordance with § 455(e).

We do not agree with the dissent that Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir.1988) is in point. In Simkins, there were no factual issues remaining to be developed on the recusal question; the facts concerning the trial judge’s former membership in the Sierra Club were undisputed. By contrast, here we have a critical factual dispute: exactly what disclosure did the District Judge make to counsel at the pretrial conference — only that he was “personally acquainted” with two defendants in the case, as plaintiff’s counsel asserted, or that his law clerk was the son of one of those defendants, as the District Judge later recalled. Lacking a full record on which to decide the § 455(a) and § 455(e) issues, we remand for supplementation and clarification of the record — a step for which there is ample precedent. See Health Services Acquisition Corp. v. Liljeberg, 796 F.2d 796, 798 (5th Cir.1986), aff'd, — U.S. -, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988).

After conducting a hearing in which there is “full disclosure on the record of the basis for disqualification,” the Court below should consider the waiver and recu-sal issues. These issues concerning the propriety of the action of the District Judge in adjudicating the case logically precede the adjudication of the case on the merits. The litigant is entitled to the decision of a judge eligible to preside. Therefore, after properly considering the issues under § 455, and making findings and conclusions thereon, the District Judge below, or if he be recused, another District Judge to whom the case may be transferred, shall reconsider the merits of the case.

1 . The motion asserted as authority for the first proposition the "Affidavit of James Prahler,” plaintiffs counsel below and in this Court, and as authority for the second proposition, "Affidavit of Patti M. Tremel,” a secretary in his law office. Tremel’s affidavit recites that on January 27 or 28 she called the District Judge's chambers, asked to speak to the law clerk, was told he was not there but that his name was Bill Hackel and, upon further inquiry, that he was the son of Sheriff Hackel. The affidavit of Mr. Prahler is neither docketed nor contained in the record and thus apparently was never filed.

At oral argument, much was made of the absence of any sworn statement or other evidence in the record that would contradict the District Judge’s later recollection of his disclosure at the status conference, thus raising difficult questions regarding the showing a party seeking disqualification under § 455(a) must make either in the trial court or on appeal. Because we dispose below in text of the recusal issue on the narrow ground that the waiver requirement of § 455(e) was not met, we need not reach these other issues.