Moore v. Garnand

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Greg Moore, et al., No. CV-19-00290-TUC-RM (LAB)

10 Plaintiffs, ORDER

11 v.

12 Sean Garnand, et al.,

13 Defendants. 14 15 Pending before the Court is Plaintiffs’ Motion for Recusal/Disqualification, which 16 seeks the undersigned’s recusal pursuant to 28 U.S.C. § 455. (Doc. 298.) The Motion is 17 fully briefed. (Docs. 299, 301.) Also pending is Defendants’ Motion for Leave to 18 Deliver Ex Parte and In Camera Supplement (Doc. 302), to which Plaintiffs responded 19 (Doc. 303). 20 I. Background 21 Plaintiffs initiated this action on May 24, 2019. (Doc. 1.) As alleged in Plaintiffs’ 22 Complaint, at all relevant times Defendant Sean Garnand was a Detective employed by 23 the City of Tucson Police Department (“TPD”), Defendant Dain Salisbury was a TPD 24 Sergeant, and Plaintiff Greg Moore was the President of a company that, among other 25 activities, managed the Forgeus Apartments. (Id. at 3-5 ¶¶ 4-5, 12.) On June 8, 2017, the 26 Forgeus Apartments were destroyed in a fire suspected to be arson. (Id. at 5-6 ¶ 14, 19, 27 21.) Plaintiffs assert claims under 42 U.S.C. § 1983 alleging First and Fourth 28 Amendment violations arising from Defendants’ investigation of Plaintiffs in connection 1 with the fire. (Id. at 4-22 ¶¶ 10-81, 89-92; see also Doc. 38.) 2 This case was originally assigned to District Judge Cindy K. Jorgenson (Doc. 2), 3 but it was randomly reassigned to Magistrate Judge Leslie A. Bowman after Judge 4 Jorgenson recused herself (Doc. 6). The case was assigned to the undersigned after a 5 party elected assignment to a district judge. (Docs. 12, 15.) Pursuant to the 6 undersigned’s standard procedures, the case was referred to Magistrate Judge Bowman 7 for all pretrial proceedings and Report and Recommendation. (Doc. 16.)1 8 On September 24, 2019, Defendants filed a Motion asserting the law enforcement 9 investigatory privilege and requesting a stay of discovery. (Doc. 23.) Magistrate Judge 10 Bowman found that the law enforcement investigatory privilege is applicable and she 11 accordingly stayed discovery of TPD’s arson investigation files for the Forgeus 12 Apartments. (Doc. 74.) Plaintiffs appealed to the district court (Doc. 84), and this Court 13 affirmed Magistrate Judge Bowman’s Order but noted that “application of the law 14 enforcement investigatory privilege does not permit Defendants to indefinitely delay 15 discovery in this case,” and that “[a] civil litigant has a right to a reasonably prompt 16 determination of her claims.” (Doc. 113 at 12-13 (internal quotation marks omitted).) 17 Accordingly, this Court ordered Defendants to provide to Magistrate Judge Bowman for 18 in camera review a detailed report on the status of the criminal investigation into the 19 Forgeus Apartment fires, as well as a predicted timeline for completion of the 20 investigation. (Id.) Plaintiffs moved for reconsideration (Doc. 120) and clarification 21 (Doc. 134). This Court denied the Motion for Reconsideration but partially granted the 22 Motion for Clarification and ordered Defendants to provide to Magistrate Judge Bowman 23 for in camera review an anticipated reasonable terminus of the ongoing criminal 24 investigation of Plaintiffs. (Doc. 154 at 9-10.) The Court directed Magistrate Judge 25 Bowman to consider Defendants’ in camera submissions “to ensure that Plaintiffs’ 26 claims in this action are litigated consistent with their due process rights and applicable 27 1 On November 5, 2021, the case was reassigned to Judge John C. Hinderaker after his 28 appointment to the bench, but the case was reassigned back to the undersigned after Judge Hinderaker recused himself. (Doc. 248.) 1 case law, including ascertaining a reasonable terminus to Defendants’ criminal 2 investigation of Plaintiffs and adjusting the discovery schedule accordingly.” (Id. at 10.) 3 Magistrate Judge Bowman’s most recently revised Scheduling Order sets a 4 discovery deadline of February 9, 2022 and a dispositive motion deadline of March 9, 5 2022. (Doc. 289.) Prior to the issuance of that revised Scheduling Order, Defendants 6 filed a Motion for Leave to File Motion for Summary Judgment in Excess of 17 Pages 7 (Doc. 274) and a Motion to Stay Discovery Pending Resolution of Motion for Summary 8 Judgment (Doc. 279). Those Motions are referred to Magistrate Judge Bowman and 9 remain pending. Also referred to Magistrate Judge Bowman and pending is a Motion to 10 Compel Deposition Appearance and Testimony of TPD Officers Edwin Arnaud and 11 Matthew Stoner (Doc. 294), filed by Plaintiffs on August 4, 2021. 12 II. Motion for Recusal 13 Plaintiffs argue in their Motion for Recusal that an appearance of bias exists due to 14 this Court’s rulings regarding the law enforcement investigatory privilege, delay in these 15 proceedings, and the undersigned’s “close, personal association with the Mayor of the 16 City of Tucson, Regina Romero.” (Doc. 298.) Plaintiffs argue that the relationship 17 between the undersigned and Mayor Romero warrants recusal because the City of Tucson 18 employs the defendants in this case. (Id. at 10.) Plaintiffs attach to their Motion a 19 Declaration of Greg Moore, who avers that during the course of this litigation, he learned 20 that members of the undersigned’s family gave money to Mayor Romero’s mayoral 21 campaign and that the undersigned administered oaths of office to Mayor Romero in 22 2015 and 2019. (Doc. 298-1 at 3.) 23 Defendants filed a Response arguing that the Motion for Recusal should be denied 24 as untimely and without merit. (Doc. 299.) Defendants argue that the Motion is untimely 25 because Plaintiffs knew of the undersigned’s connection to Mayor Romero at least since 26 2019 but waited to move for recusal until after the Court ruled against them regarding 27 application of the law enforcement investigatory privilege. (Id. at 2-3.) Defendants also 28 argue that the Motion for Recusal lacks merit because there is no evidence that the 1 undersigned holds deep-seated favoritism or antagonism and the undersigned’s 2 connection to Mayor Romero is insufficient to support recusal. (Id. at 4-6.) 3 In Reply, Plaintiffs argue that they did not conclude that the undersigned was 4 impartial until Defendants’ procedural Motion for Leave to File Motion for Summary 5 Judgment in Excess of 17 Pages had languished without a ruling and Magistrate Judge 6 Bowman had sua sponte extended the discovery deadline an additional six months. (Doc. 7 301 at 2.) Plaintiffs indicate it was not until that point that they began to research 8 possible grounds for seeking the undersigned’s recusal and thereby learned of the 9 undersigned’s connection to Mayor Romero. (See id. at 1-2.) 10 A. Legal Standard 11 Under 28 U.S.C. § 455(a),2 a judge “shall disqualify [her]self in any proceeding in 12 which [her] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).3 Section 13 455(a) requires an objective inquiry: “whether a reasonable person with knowledge of all 14 the facts would conclude that the judge’s impartiality might be questioned.” United 15 States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). The analysis focuses on “how things 16 appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly 17 suspicious person.” Matter of Mason, 916 F.2d 384, 386 (7th Cir. 1990). 18 B. Timeliness 19 Courts have read a timeliness requirement into section 455. United States v. 20 Rogers, 119 F.3d 1377, 1380 (9th Cir. 1997). “‘[G]ranting a motion to recuse many 21 months after an action has been filed wastes judicial resources and encourages 22 manipulation of the judicial process.’” United States v. Sierra P. Indus., 759 F. Supp. 2d 23 2 Pursuant to 28 U.S.C. § 144, when a party “makes and files a timely and sufficient 24 affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no 25 further therein, but another judge shall be assigned to hear such proceeding.” 28 U.S.C. § 144. Absent good cause for delay, such an affidavit must be filed “not less than ten days 26 before the beginning of the term at which the proceeding is to be heard.” Id. It does not appear that Plaintiffs are seeking relief under § 144; to the extent they are, the Motion is 27 untimely under § 144. 3 A judge is also required to recuse herself under specific circumstances specified in 28 28 U.S.C. § 455(b)(1)-(5), but Plaintiffs do not argue that any of those circumstances are applicable here, and the Court finds that they are not. 1 1198, 1206 (E.D. Cal. 2010) (quoting Willner v. Univ. of Kansas, 848 F.2d 1023, 1029 2 (10th Cir.1988)). “[A] party having information that raises a possible ground for 3 disqualification cannot wait until after an unfavorable judgment before bringing the 4 information to the court’s attention.” Rogers, 119 F.3d at 1380. 5 The current action has been pending for approximately 2.5 years. Plaintiffs aver 6 that they did not discover this Court’s connection to Mayor Romero until recently, but 7 they could have discovered it at least since 2019, when the local newspaper published an 8 article noting that the undersigned delivered Mayor Romero’s oath of office. Plaintiffs 9 filed their Motion for Recusal only after adverse rulings regarding the law enforcement 10 investigatory privilege, and they candidly indicate that they began to investigate potential 11 grounds for recusal due to dissatisfaction with the Court’s management of this case. 12 Plaintiffs attempt to seek the undersigned’s recusal due to their dissatisfaction with 13 judicial rulings and judicial management of this case constitutes an attempt at strategic 14 manipulation of the judicial process that is not to be encouraged. The Court finds that 15 Plaintiffs’ Motion for Recusal is untimely. 16 C. Merits 17 Even if the Motion for Recusal were timely, the undersigned finds that recusal in 18 the above-captioned matter is not appropriate. In their Motion for Recusal, Plaintiffs 19 primarily focus on their dissatisfaction with the Court’s rulings on the law enforcement 20 investigatory privilege and the delay that application of that privilege has caused in this 21 case. (Doc. 298 at 1-8, 10.) “[J]udicial rulings alone almost never constitute a valid basis 22 for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). 23 “Almost invariably, they are proper grounds for appeal, not for recusal.” Id. “[O]pinions 24 formed by the judge on the basis of facts introduced or events occurring in the course of 25 the current proceedings, or of prior proceedings, do not constitute a basis for a bias or 26 partiality motion unless they display a deep-seated favoritism or antagonism that would 27 make fair judgment impossible.” Id. The Court’s rulings in this matter do not display a 28 deep-seated favoritism or antagonism toward either party. The Court also notes that 1 many of the rulings that Plaintiffs complain of were made by Magistrate Judge Bowman 2 rather than the undersigned. 3 In addition to complaining about judicial rulings and judicial management of the 4 above-captioned case, Plaintiffs argue that recusal is required due to the undersigned’s 5 connection to Mayor Romero. (Doc. 298 at 8, 10.) A judge’s recusal is required based 6 on the familial relationships described in 28 U.S.C. § 455(b)(5) and where the degree of a 7 personal relationship prevents the judge from being impartial or would cause a reasonable 8 person to question the judge’s impartiality. Id. “The more insignificant the relationship 9 and the greater the temporal distance between contacts, the less likely it is that a judge’s 10 impartiality can reasonably be questioned.” United States ex rel. Cafasso v. General 11 Dynamics C4 Sys., Inc., 2008 WL 169636, *5 (Jan. 16, 2008). “Reasonable, well- 12 informed observers of the federal judiciary understand that judges with political friends 13 or supporters regularly cast partisan interests aside and resolve cases on the facts and 14 law.” Matter of Mason, 916 F.2d 384, 387 (7th Cir. 1990). The undersigned is unaware 15 of any family members who donated to Mayor Romero’s mayoral campaign. Even if 16 family members did donate, and even though this Court administered Mayor Romero’s 17 oath of office, the connections between the undersigned and Mayor Romero, and between 18 Mayor Romero and this case, are too attenuated to require recusal. See McWhorter v. 19 City of Birmingham, 906 F.2d 674, 678-79 (11th Cir. 1990) (finding district court did not 20 abuse discretion in denying recusal motion based on friendship with Mayor of 21 Birmingham where Mayor was neither a party nor a witness in the case, because the 22 Mayor’s “connection with the City [was] insufficient to create the appearance of 23 impropriety”). 24 The undersigned finds that recusal in this matter is not appropriate and therefore 25 will deny Plaintiffs’ Motion for Recusal.4 26 4 Plaintiffs also note in their Motion for Recusal that two other district judges—Judge 27 Jorgenson and Judge Hinderaker—recused themselves from this case without specifying the reasons for their recusal. (Doc. 298 at 2-3, 10.) The fact that two other judges had 28 conflicts requiring recusal from this matter has no bearing on whether the undersigned’s recusal is appropriate. 1 IV. Case Delay and Motion to Deliver Supplement 2 The Court shares Plaintiffs’ concerns regarding delay in this case. The delay 3 stems from the application of the law enforcement investigatory privilege, the ongoing 4 criminal investigation of Plaintiffs, and the due process concerns that would arise from 5 requiring Plaintiffs to litigate dispositive motions while evidence is shielded by the law 6 enforcement investigatory privilege. As this Court previously found, Plaintiffs have a 7 right to a reasonably prompt determination of their claims, and application of the law 8 enforcement investigatory privilege does not justify indefinite delay in these proceedings. 9 (Doc. 113 at 12.) Magistrate Judge Bowman previously found that a protective order 10 would not mitigate the risk of harm justifying application of the law enforcement 11 investigatory privilege because Plaintiffs are the target of an ongoing investigation. 12 (Doc. 74 at 3.) But the Forgeus Fire occurred nearly 4.5 years ago. Defendants have had 13 a lengthy period of time to complete their investigation. Given the length of time 14 Defendants’ investigation and this action have been pending, the Court is considering 15 requiring disclosure under a protective order of relevant matters previously shielded by 16 the law enforcement investigatory privilege. However, before lifting the privilege, the 17 Court will allow Defendants to deliver an ex parte and in camera supplement regarding 18 the status of their investigation. (See Doc. 302.) The Court agrees with Plaintiffs that the 19 ex parte supplement should be delivered to the undersigned’s chambers. (See Doc. 303.) 20 IT IS ORDERED that Plaintiffs’ Motion for Recusal (Doc. 298) is denied. 21 IT IS FURTHER ORDERD that Defendants’ Motion for Leave to Deliver Ex 22 Parte and In Camera Supplement (Doc. 302) is granted. Defendants shall deliver a 23 supplement regarding the status of their criminal investigation to Judge Rosemary 24 Márquez’s chambers for in camera review within seven (7) days of the date this Order is 25 filed. 26 . . . . 27 . . . . 28 . . . . 1 IT IS FURTHER ORDERED that the reference to Magistrate Judge Bowman 2|| (Doc. 16) is withdrawn solely with respect to resolution of Plaintiffs’ Motion for Recusal 3|| and in camera review of Defendants’ ex parte supplement. The above-captioned case 4|| otherwise remains referred to Magistrate Judge Bowman for all pretrial proceedings and 5 || report and recommendation. Magistrate Judge Bowman is directed to promptly resolve 6 || the other Motions pending in this action (Docs. 274, 279, 294). 7 Dated this 29th day of November, 2021. 8 9 10 —, Dl Lvajcn,) ll MNYAC Honorable Rostsiary □□□□□□□ 12 United States District □□□□□ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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