1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY S. MCNALLY, Case No.: 18-CV-1150 JLS (AGS)
12 Plaintiff, ORDER OF RECUSAL 13 v.
14 DANIEL RIIS, 15 Defendant. 16 17 18 Presently before the Court are affidavits filed by Defendant Daniel Riis (Affidavit 19 of Daniel Riis (“Riis Affidavit”), ECF No. 82-1) and Defendant’s counsel Casey Sweda 20 (Affidavit of Casey M. Sweda (“Sweda Affidavit”), ECF No. 82).1 Defendant’s affidavits 21 state that the Court harbors personal bias against Defendant in this matter. Defendant 22 argues that because of that bias, the Court’s impartiality may reasonably be questioned and 23 disqualification under 28 U.S.C. § 144 or recusal under 28 U.S.C. § 455(a) is required. 24 Plaintiff filed an Objection to Defendant’s Request for Recusal or Disqualification (ECF 25 No. 83). 26 27 28 1 Because both affidavits contain the same factual assertions, the Court will cite primarily to the Sweda 1 BACKGROUND 2 This case came before the Court on June 3, 2018, when Plaintiff Gregory McNally 3 filed his complaint against the only defendant in this matter, San Diego Police Detective 4 Daniel Riis. See generally ECF No. 1. Plaintiff alleges Defendant arrested him without 5 probable cause and used excessive force during the arrest causing personal injury. See 6 generally id. The case proceeded through discovery and settlement negotiations without 7 any motions coming before this Court. See generally Docket. The Court held a pretrial 8 conference on October 10, 2019, see ECF No. 41, and on January 9, 2020, the Court held 9 a hearing on the Parties’ motions in limine. See ECF No. 74. At the hearing, the Court 10 issued tentative rulings; the Court finalized those rulings in its January 14, 2020 Order. See 11 ECF No. 78. On January 15, 2020, the Court held a second pretrial conference to finalize 12 details for the trial set to begin less than a week later. See ECF No. 81. At the outset of 13 that hearing, Defendant’s counsel, Ms. Sweda, informed the Court she would be filing the 14 present affidavits and requested the Court’s disqualification or recusal from this case. 15 Defendant’s request stems from two cases involving the Court’s adult son, Jonathan 16 Sammartino (“Jonathan”). On February 11, 2016—over two years before this case was 17 filed—Jonathan filed a civil lawsuit against the City of San Diego. Sweda Aff. ¶ 6(a). 18 Jonathan brought the case against the City after suffering a traumatic brain injury as a result 19 of a bicycle accident that was allegedly caused by a dangerous condition of public property. 20 Id. ¶ 8(a–d). In September 2018, Jonathan was arrested following an investigation by the 21 San Diego Police Department. Id. ¶ 9(a). Jonathan sought mental health diversion in lieu 22 of trial on the basis that the brain injury caused by the bicycle accident “severely affect[ed] 23 his ability to regulate his emotions and make reasonable judgment.” Id. ¶ 9(e). 24 As stated in the affidavits, on the night giving rise to the allegations in this case, 25 Detective Jeremiah Lutz was present at the scene and witnessed some of the events that 26 night. Id. After the incident, in January 2018, Detective Lutz was transferred to the unit 27 that led the criminal investigation of Jonathan, although Detective Lutz was never assigned 28 to Jonathan’s criminal case. Id. ¶ 31 1 LEGAL STANDARD 2 Under Section 455(a), “[a]ny justice, judge, or magistrate judge of the United States 3 shall disqualify himself in any proceeding in which his impartiality might reasonably be 4 questioned.” 28 U.S.C. § 455(a). Section 144 provides that a judge must recuse “whenever 5 a party . . . makes and files a timely and sufficient affidavit that the judge . . . has a personal 6 bias or prejudice either against him or in favor of any adverse party.” 28 U.S.C. § 144. 7 “Those provisions require recusal where ‘a reasonable person with knowledge of all the 8 facts would conclude that the judge’s impartiality might reasonably be questioned.’” Glick 9 v. Edwards, 803 F.3d 505, 508 (9th Cir. 2015) (quoting United States v. Studley, 783 F.2d 10 934, 939 (9th Cir.1986)). Under both provisions, the reviewing court must determine 11 whether the request to recuse is both timely and sufficient. See E. & J. Gallo Winery v. 12 Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (holding requests to recuse under 13 section 455(a) must be timely); 28 U.S.C. § 144 (noting affidavits must be “timely and 14 sufficient”). 15 DISCUSSION 16 Although the Court harbors some reservations regarding the timeliness of 17 Defendant’s affidavit, the Court will accept Defendant’s assertions and assume timeliness 18 for the purpose of this Order. 19 Next, the Court finds the allegations are sufficient to find that “a reasonable person 20 with knowledge of all the facts would conclude that [the Court’s] impartiality might 21 reasonably be questioned.” See United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 22 2012). Defendant contends that the Court is biased against Defendant because: 23 (1) Jonathan has pending civil litigation against the Defendant’s employer, the City of San 24 Diego; (2) Jonathan was investigated and criminally charged by Defendant’s employer, the 25 San Diego Police Department; (3) Jonathan alleges a connection between his criminal 26 conduct and the injuries he allegedly sustained due to the condition of City streets; and (4) 27 /// 28 /// 1 a defense witness in this lawsuit is assigned to the San Diego Police unit that investigated 2 Jonathan.2 Sweda Aff. ¶¶ 3, 44. 3 When each of the cases involving Jonathan began, the Court thoroughly examined 4 the cases pending before it and determined that, at that time, there was no possibility of 5 bias. The underlying factual circumstances of the cases were not similar in any way. And 6 although the City of San Diego and the San Diego Police Department were involved in all 7 the cases to some degree, they involved separate departments and did not involve the same 8 officers or deputy city attorneys. For that reason, the Court determined that the Court’s 9 impartiality could not be reasonably questioned and that disclosure was not necessary. See 10 United States v. Bosch, 951 F.2d 1546, 1555 n.6 (9th Cir. 1991) (“Section 455 imposes no 11 duty to disclose per se.”). As the Court stated at the pretrial hearing, the Court is confident 12 that it harbors no animus toward the City of San Diego or the San Diego Police, that no 13 actual personal bias against Defendant exists, and that the Court has and could continue to 14 remain impartial at all times while presiding over this case. 15 Even though the Court has no actual bias or prejudice against Defendant, the City of 16 San Diego, the San Diego Police Department, or any potential witness, after painstakingly 17 reviewing the facts and circumstances involved in this case, the Court has concluded that 18 recusal is appropriate.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY S. MCNALLY, Case No.: 18-CV-1150 JLS (AGS)
12 Plaintiff, ORDER OF RECUSAL 13 v.
14 DANIEL RIIS, 15 Defendant. 16 17 18 Presently before the Court are affidavits filed by Defendant Daniel Riis (Affidavit 19 of Daniel Riis (“Riis Affidavit”), ECF No. 82-1) and Defendant’s counsel Casey Sweda 20 (Affidavit of Casey M. Sweda (“Sweda Affidavit”), ECF No. 82).1 Defendant’s affidavits 21 state that the Court harbors personal bias against Defendant in this matter. Defendant 22 argues that because of that bias, the Court’s impartiality may reasonably be questioned and 23 disqualification under 28 U.S.C. § 144 or recusal under 28 U.S.C. § 455(a) is required. 24 Plaintiff filed an Objection to Defendant’s Request for Recusal or Disqualification (ECF 25 No. 83). 26 27 28 1 Because both affidavits contain the same factual assertions, the Court will cite primarily to the Sweda 1 BACKGROUND 2 This case came before the Court on June 3, 2018, when Plaintiff Gregory McNally 3 filed his complaint against the only defendant in this matter, San Diego Police Detective 4 Daniel Riis. See generally ECF No. 1. Plaintiff alleges Defendant arrested him without 5 probable cause and used excessive force during the arrest causing personal injury. See 6 generally id. The case proceeded through discovery and settlement negotiations without 7 any motions coming before this Court. See generally Docket. The Court held a pretrial 8 conference on October 10, 2019, see ECF No. 41, and on January 9, 2020, the Court held 9 a hearing on the Parties’ motions in limine. See ECF No. 74. At the hearing, the Court 10 issued tentative rulings; the Court finalized those rulings in its January 14, 2020 Order. See 11 ECF No. 78. On January 15, 2020, the Court held a second pretrial conference to finalize 12 details for the trial set to begin less than a week later. See ECF No. 81. At the outset of 13 that hearing, Defendant’s counsel, Ms. Sweda, informed the Court she would be filing the 14 present affidavits and requested the Court’s disqualification or recusal from this case. 15 Defendant’s request stems from two cases involving the Court’s adult son, Jonathan 16 Sammartino (“Jonathan”). On February 11, 2016—over two years before this case was 17 filed—Jonathan filed a civil lawsuit against the City of San Diego. Sweda Aff. ¶ 6(a). 18 Jonathan brought the case against the City after suffering a traumatic brain injury as a result 19 of a bicycle accident that was allegedly caused by a dangerous condition of public property. 20 Id. ¶ 8(a–d). In September 2018, Jonathan was arrested following an investigation by the 21 San Diego Police Department. Id. ¶ 9(a). Jonathan sought mental health diversion in lieu 22 of trial on the basis that the brain injury caused by the bicycle accident “severely affect[ed] 23 his ability to regulate his emotions and make reasonable judgment.” Id. ¶ 9(e). 24 As stated in the affidavits, on the night giving rise to the allegations in this case, 25 Detective Jeremiah Lutz was present at the scene and witnessed some of the events that 26 night. Id. After the incident, in January 2018, Detective Lutz was transferred to the unit 27 that led the criminal investigation of Jonathan, although Detective Lutz was never assigned 28 to Jonathan’s criminal case. Id. ¶ 31 1 LEGAL STANDARD 2 Under Section 455(a), “[a]ny justice, judge, or magistrate judge of the United States 3 shall disqualify himself in any proceeding in which his impartiality might reasonably be 4 questioned.” 28 U.S.C. § 455(a). Section 144 provides that a judge must recuse “whenever 5 a party . . . makes and files a timely and sufficient affidavit that the judge . . . has a personal 6 bias or prejudice either against him or in favor of any adverse party.” 28 U.S.C. § 144. 7 “Those provisions require recusal where ‘a reasonable person with knowledge of all the 8 facts would conclude that the judge’s impartiality might reasonably be questioned.’” Glick 9 v. Edwards, 803 F.3d 505, 508 (9th Cir. 2015) (quoting United States v. Studley, 783 F.2d 10 934, 939 (9th Cir.1986)). Under both provisions, the reviewing court must determine 11 whether the request to recuse is both timely and sufficient. See E. & J. Gallo Winery v. 12 Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (holding requests to recuse under 13 section 455(a) must be timely); 28 U.S.C. § 144 (noting affidavits must be “timely and 14 sufficient”). 15 DISCUSSION 16 Although the Court harbors some reservations regarding the timeliness of 17 Defendant’s affidavit, the Court will accept Defendant’s assertions and assume timeliness 18 for the purpose of this Order. 19 Next, the Court finds the allegations are sufficient to find that “a reasonable person 20 with knowledge of all the facts would conclude that [the Court’s] impartiality might 21 reasonably be questioned.” See United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 22 2012). Defendant contends that the Court is biased against Defendant because: 23 (1) Jonathan has pending civil litigation against the Defendant’s employer, the City of San 24 Diego; (2) Jonathan was investigated and criminally charged by Defendant’s employer, the 25 San Diego Police Department; (3) Jonathan alleges a connection between his criminal 26 conduct and the injuries he allegedly sustained due to the condition of City streets; and (4) 27 /// 28 /// 1 a defense witness in this lawsuit is assigned to the San Diego Police unit that investigated 2 Jonathan.2 Sweda Aff. ¶¶ 3, 44. 3 When each of the cases involving Jonathan began, the Court thoroughly examined 4 the cases pending before it and determined that, at that time, there was no possibility of 5 bias. The underlying factual circumstances of the cases were not similar in any way. And 6 although the City of San Diego and the San Diego Police Department were involved in all 7 the cases to some degree, they involved separate departments and did not involve the same 8 officers or deputy city attorneys. For that reason, the Court determined that the Court’s 9 impartiality could not be reasonably questioned and that disclosure was not necessary. See 10 United States v. Bosch, 951 F.2d 1546, 1555 n.6 (9th Cir. 1991) (“Section 455 imposes no 11 duty to disclose per se.”). As the Court stated at the pretrial hearing, the Court is confident 12 that it harbors no animus toward the City of San Diego or the San Diego Police, that no 13 actual personal bias against Defendant exists, and that the Court has and could continue to 14 remain impartial at all times while presiding over this case. 15 Even though the Court has no actual bias or prejudice against Defendant, the City of 16 San Diego, the San Diego Police Department, or any potential witness, after painstakingly 17 reviewing the facts and circumstances involved in this case, the Court has concluded that 18 recusal is appropriate. Confidence in the judiciary and the appearance of impartiality is of 19 the upmost importance to our system of justice. This does not mean that a judge should 20 recuse given any allegation of impartiality—a judge has “as strong a duty to sit when there 21 is no legitimate reason to recuse as [s]he does to recuse when the law and facts require.” 22 United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008). But when it is a close call as 23 24 25 2 Defendant also seems to imply that because Jonathan is represented by an attorney who has filed multiple complaints against the City of San Diego and San Diego Police officers, the Court has personal animus 26 against the City of San Diego and San Diego Police officers. Sweda Aff. ¶ 9(g)(i–xiv). These assertions, however, fall into the category of “rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion 27 and similar non-factual matters” that are not sufficient to require recusal. Clemens v. U.S. Dist. Ct. for the 28 Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005) (quoting Nichols v. Alley, 71 F.3d 347, 351 (10th 1 || to “whether a reasonable person would conclude that that the judge’s impartially might be 2 ||reasonably questioned,” Herrington v. Cty. of Sonoma, 834 F.2d 1488, 1502 (9th Cir. 3 || 1987), as the Court now believes this case may be, “the balance tips in favor of recusal.” 4 || Holland, 519 F.3d at 912. Therefore, out of an abundance of caution and to avoid even the 5 || possibility of an appearance of impropriety, the Court concludes that recusal is appropriate 6 ||under section 455(a). 7 CONCLUSION 8 Accordingly, the undersigned HEREBY RECUSES from this case and 9 || REQUESTS that another District Judge be assigned. 10 IT IS SO ORDERED. 11 ||Dated: January 31, 2020 tt 12 pee Janis L. Sammartino 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28