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07-30-2009 Verified Response of Presiding District Court Judge to Order of July 21_ 2009 by Boxer47

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UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

IN RE: LUCILLE IACOVELLI,

) ) )

No. 09-2642

Verified Response of Presiding District Court Judge to Order of July 21, 2009 Comes now the undersigned Sarah Evans Barker, Judge, first being sworn upon her oath, and respectfully submits this verified response to the Order of the Court of Appeals issued on July 21, 2009, in No. 09-2642. 1. I am a Judge of the United States District Court for the Southern District of Indiana, having been sworn into office on March 30, 1984. 2. The civil action docketed as Cause No. 1:09-cv-386-SEB-JMS was assigned in the ordinary course by blind draw to my docket on March 30, 2009. This is a suit brought by Dr. Barry Eppley, MD, DMD, against Lucille Iacovelli asserting claims for defamation, trade disparagement, harassment, false-light publicity, and violation of § 43 of the Lanham Act, 15 U.S.C. § 1125, through her alleged false designation and description of fact. 3. A temporary restraining order and a preliminary injunction were issued prohibiting Ms. Iacovelli from engaging in or continuing certain conduct during the pendency of this action or until further order of the Court. 4. In the course of this litigation, Ms. Iacovelli sought my recusal pursuant to 28 U.S.C. § 455(a) and also filed a complaint of judicial misconduct. Rulings on the recusal requests were made on April 18 and 28, 2009. 5. On June 29, 2009, two working days before a contempt hearing was scheduled to be conducted, Ms. Iacovelli filed a mandamus petition in the Court of Appeals seeking to compel my recusal in Cause No. 1:09-cv-386-SEB-JMS. An associate of Ms. Iacovelli’s had threatened to file a mandamus action as early as May 20, 2009, which is evident from an exhibit to the petition for a writ of mandamus.

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6. On July 21, 2009, the Court of Appeals issued an Order in Cause No. 092642 reciting certain circumstances associated with the mandamus request, noting that Ms. Iacovelli seeks my recusal based on her concerns previously presented in the District Court, and observing that the Court of Appeals did “not have enough information to review whether the District Court judge properly denied the motions.” Specifically, the Court of Appeals’ Order recited: The judge said that the Clarian Hospital Board is not the same board as the board of Clarian Health Partners, with which Dr. Eppley may have a business relationship, but she did not provide any further explanation about the relationship between the two institutions. Accordingly, the Court of Appeals issued an Order “remand[ing] this case for the limited purpose of allowing the judge to provide this court with a more detailed explanation about why her service on the Clarian Hospital Board would not cause a reasonable, well-informed observer to question her impartiality.” 7. One of the grounds on which Ms. Iacovelli sought my recusal in Cause No. 1:09-cv-386-SEB-JMS was her claim that rulings made by me in this action were legally incorrect. The Court of Appeals’ Order of July 21, 2009, recited that the undersigned had “correctly reasoned that judicial rulings are rarely a valid basis for a recusal motion.” Id. at p.1. 8. Another of the grounds on which Ms. Iacovelli sought my recusal in Cause No. 1:09-cv-386-SEB-JMS was what she referenced as my membership on the Board of Directors of an entity with which the plaintiff and/or his business are associated. In addressing this point, the Entry of April 18, 2009, explained: A reasonable person, for the purpose of making a determination pursuant to § 455(b)(1), must necessarily be a well-informed person, United States v. Evans, 262 F.Supp.2d 1292, 1294 (D.Utah 2003)(“In the recusal context, the reasonable person standard contemplates a ‘well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person.’”) (footnote and citation omitted), and the defendant here falls short of being either well-informed or correctly-informed as to these matters. Instead, a reasonable and well-informed person would have discovered that the Clarian Hospital's Board of which the undersigned is a member is not the same board of the entities with which the plaintiff and his business allegedly have some business relationship. There is no shared or common interest between the plaintiff and the Board on which the undersigned judge serves as a member. Thus, an objectively reasonable person would not find from these facts a basis for recusal of the undersigned. Eppley v. Iacovelli, 2009 WL 1033391, *2 (S.D.Ind. April 18, 2009). 2

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9. Each of the above grounds appears to have been renewed in Ms. Iacovelli’s petition for a writ of mandamus. That petition also includes other points and arguments. However, the Court of Appeals Order of July 21, 2009, seeks additional information only as to my service on the Board of Clarian Health Partners, Inc., and this verified response is accordingly so limited. This limitation does not overlook, however, Ms. Iacovelli’s apparent view that my asserted affiliation with Dr. Eppley and/or his businesses is the genesis of my management of Cause No. 1:09-cv-386-SEB-JMS in a manner which Ms. Iacovelli contends has been prejudicial to her. 10. The complaint of judicial misconduct referred to above was docketed at the Court of Appeals as number 07-09-90063 and was based on my refusal to grant Ms. Iacovelli’s motions for recusal. The complaint of judicial misconduct rests on the same circumstances and allegations which are presented in the petition for a writ of mandamus. The complaint of judicial misconduct was dismissed in Chief Judge Easterbrook’s Memorandum issued on May 27, 2009, in which he concluded on behalf of the Circuit Judicial Council that “[t]he Code of Conduct for United States Judges permits judges to serve on the boards of hospitals (see Advisory Opinion 28 issued by the Committee on Codes of Conduct), provided that they do not participate in fund-raising and that they recuse when the hospital is a litigant. And even if the judge were to serve on the board of the hospital where the plaintiff works (or the board of an affiliated entity), this would not automatically disqualify the judge. The hospital is not a litigant, nor is any affiliate of the hospital. Complainant does not offer any reason to think that either the hospital or the subject judge has any financial interest in the litigation.” Id. at p.2. The Memorandum issued in Cause No. 07-09-90063 is attached to this response as Attachment A. 11. At the time Cause No. 1:09-cv-386-SEB-JMS was filed, and continuing through to the present, I have served as a member of the Board of Directors of Clarian Health Partners, Inc. This service is permitted by applicable rules governing my conduct as a United States judge. (See Advisory Opinion 28 issued by the Committee on Codes of Conduct.) My duties as a judge of the United States are limited based on such service only in the limited circumstances described in the Memorandum issued in Cause No. 07-0990063, i.e., that I recuse when Clarian Health Partners, Inc. is a litigant, which is not the case here. Consistent with other legal restrictions imposed on members of the federal judiciary, my service on the Board of Directors is performed without financial compensation or remuneration. 12. Clarian Health Partners, Inc. is a nonprofit healthcare enterprise which owns and operates three hospitals in downtown Indianapolis (Methodist Hospital of Indiana, Indiana University Hospital, and Riley Hospital for Children). Clarian Health Partners, Inc. also has an ownership interest in separate corporations and limited liability companies which own and operate 15 other hospitals in Indiana. These other hospitals in which Clarian Health Partners, Inc. has an ownership interest are referred to in this response as affiliated hospitals. One of the affiliated hospitals is Clarian North Medical Center, referred to in this response as “Clarian North.” Another is Clarian West Medical Center, referred to as “Clarian West.” 3

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13. The relation of Clarian North and of Clarian West to Clarian Health Partners, Inc., as well as certain other information concerning the legal structure of Clarian Health Partners, Inc., is described in the affidavit of Norman G. Tabler, Senior Vice President and General Counsel of Clarian Health Partners, Inc. That affidavit is attached to this response as Attachment B. Briefly, by way of summary, Dr. Eppley is not a member of the medical staff of the hospitals that Clarian Health Partners, Inc. operates. I do not serve as a member of the board of the entity that operates Clarian North or of the entity that operates Clarian West, the two hospitals where Dr. Eppley has practice privileges and as such is a member of the medical staff. As a member of the Board of Clarian Health Partners, Inc., I have no role in the appointment of Dr. Eppley to the medical staff of either Clarian North or Clarian West. Further, I have no role in the operation of the Clarian entities from which Dr. Eppley or his businesses lease space. Neither Clarian Health Partners, Inc. nor any of its affiliated hospitals are parties to this litigation. 14. Dr. Eppley testified under oath regarding his connection with Clarian at the April 17, 2009, hearing on the motion for preliminary injunction. A transcript of his testimony is attached herewith as Attachment C. As Dr. Eppley explained, he is a tenant of two of Clarian’s affiliated hospitals, but has no business relationship with either of these Clarian entities beyond merely paying them rent to occupy his business premises. 15. I have never had any business, professional, financial, or personal relationship with Dr. Eppley. I had never met him prior to this lawsuit. I have never worked with him on any committees or projects and, to my knowledge, I am not a member of any organizations of which he is a member. I have never been his patient myself and to my knowledge I do not know anyone who has been a patient of his. I have no independent knowledge of his professional, career, or other current activities. 16. Ms. Iacovelli relies on a number of allegations in her request for mandamus that are untrue, inaccurate, or misleading and which would be known to be such by a wellinformed, thoughtful and objective observer. a. Ms. Iacovelli claims that I am prejudiced against her because I am personally upset by the “adverse publicity produced about [me] as a result of this case.” This allegation is pure speculation based on Ms. Iacovelli’s conclusions regarding my state of mind. Her speculation is baseless because, as I have stated on the record, I have not personally reviewed any of the matters that I am informed by her and her opposing counsel that she or others acting on her behalf have posted about me or about this litigation on the internet or otherwise placed in the public domain beyond their submission as evidence in the record. There is neither the appearance nor reality that I have or will respond with asperity to either any of the filings in this action or the evidence, including postings about me or about this litigation on the internet. b. After the preliminary injunction was issued, Ms. Iacovelli filed a notice of appeal and sought to proceed on appeal in forma pauperis. It is the task of the District Court to act on such requests. This Court did so, denying that request based 4

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on its application of the statutory standard, 28 U.S.C. § 1915, to the circumstances of this case. This ruling, as with several other matters mentioned in the petition for a writ of mandamus, was made following the rulings on Ms. Iacovelli’s requests for my recusal. That appeal, moreover, was dismissed pursuant to Circuit Rule 3(c) without Ms. Iacovelli having exercised her right under Appellate Rule 24 to renew her request for pauper status in the Court of Appeals. Although the petition for mandamus followed the dismissal of Ms. Iacovelli’s appeal, mandamus is not a substitute for an appeal. In re Ford Motor Co., 344 F.3d 648, 651 (7th Cir. 2003). c. Ms. Iacovelli further alleges that the Court in Cause No. 1:09-cv-386-SEBJMS erred by refusing to include in the appellate record all email messages and faxes sent to my chambers regarding this case. Ms. Iacovelli’s motion to recuse was filed on April 16, 2009, weeks before her designation of record on appeal was filed on May 21, 2009. The recusal motion therefore makes no reference to the record on appeal. Next, Ms. Iacovelli’s appeal is not relevant to her request for mandamus because that appeal had been dismissed by the time she filed the mandamus petition. Finally, in Part I of the Entry of June 18, 2009, in Cause No. 1:09-cv-386SEB-JMS, the Court explained to Ms. Iacovelli that certain materials sent to chambers but not filed with the Clerk of the Court would not be included in the appellate record. This decision not to include documents sent to chambers but not filed with the Clerk of the Court is consistent both with the Federal Rules of Civil Procedure and prior notifications issued to Ms. Iacovelli – information which she and her associates have opted to disregard on many occasions as evidenced by their continued improper attempts to communicate ex parte with the Court and/or submit extraneous undocketed materials with the Clerk of the Court. She did not thereafter demonstrate that the appellate record should have included materials not filed with the Clerk of the District Court. d. Ms. Iacovelli also presents alleged legal errors in her request for mandamus. As already explained, judicial rulings are rarely a valid basis for a recusal motion. e. Ms. Iacovelli also challenges the general management of the litigation, asserting that rulings have been too hastily made, that scheduling orders have been unfair to her, and that she has been unfairly prohibited from participating by telephone in court hearings. The scheduling and conduct of hearings and similar proceedings are all routine matters of case management entrusted to the discretion of the assigned judicial officer. The temporary restraining order was, by its nature, an expedited ruling but of limited duration. The Court determined it would be extended only upon a sufficient evidentiary showing and the opportunity of all parties to participate. Thereafter, following an evidentiary hearing, the preliminary injunction was entered. Other scheduling orders and rulings in Cause No. 1:09-cv-386-SEBJMS consist of activity generated by Ms. Iacovelli’s own behavior, namely, her admitted, consistent violation of the preliminary injunction and her failure to participate meaningfully in discovery. No litigant should expect those matters to be ignored or held in abeyance by the Court while alleged injury to the opposing party caused by violations of the preliminary injunction continue. 5

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f. Finally, Ms. Iacovelli has suggested in previous motions that I am related by blood to Dan Evans, the CEO of Clarian Health Partners, Inc. (The accusation has been that we are brother and sister to one another.) I am not related by consanguinity to Mr. Evans. 17. I have no personal, business, or financial relationship with Dr. Eppley. Clarian Health Partners, Inc. is legally separate from entities which own the hospitals where Dr. Eppley has been permitted privileges to practice medicine, as with and in the same fashion as hundreds of other physicians. Clarian Health Partners, Inc. is also separate from the entities that own the properties where Dr. Eppley rents retail office space. As a member of the Board of Clarian Health Partners, Inc., I have no control over Eppley’s admission to practice at these hospitals and no connection to his profitability as a physician or business owner. 18. I previously have ruled that “[t]here is no shared or common interest between the plaintiff and the Board on which the undersigned judge serves as a member. Thus, an objectively reasonable person would not find from these facts a basis for recusal of the undersigned.” As explained in greater detail in this response, my membership on the Board of Clarian Health Partners, Inc. does not create a relationship between Dr. Eppley and myself that would lead a reasonable, well-informed observer to question my impartiality in Cause No. 1:09-cv-386-SEB-JMS. Similarly, none of the other circumstances relied on by Ms. Iacovelli in her petition for a writ of mandamus or in the prior requests for my recusal would lead a reasonable, well-informed observer to question my impartiality. 19. A judge is presumed to be impartial. Recusal is required when a “reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits.” In re Mason, 916 F.2d 384,385 (7th Cir. 1990); In re Nat'l Union Fire Ins. Co., 839 F.2d 1226, 1229 (7th Cir. 1988). The Supreme Court has explained that “‘[t]he goal of section 455(a) is to avoid even the appearance of partiality.’” Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860 (1988) (quoting Hall v. Small Bus. Admin., 695 F.2d 175, 179 (5th Cir. 1983)). I do not personally perceive any such “significant risk” or “appearance of partiality” to arise out of the salient facts of this litigation or the described relationships. 20. I am completely cognizant of a judge’s duty to recuse in appropriate circumstances. I strive always to honor that duty without fail, as I have done throughout my 25-year tenure as a federal judge. 21. There is no suggestion in this case, nor is there any reasonable basis to suggest, that I have been provided information outside the record concerning the dispute between Dr. Eppley and Ms. Iacovelli. The objective standard which is applicable to matters considered under § 455(a) does not embrace any of the circumstances present here. “An objective standard is essential when the question is how things appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly suspicious person.” Hook v. McDade, 89 F.3d 350, 354 (7th Cir. 1996). Ms. Iacovelli’s concerns in her motions for recusal and in the mandamus petition itself reflect the concerns of the hypersensitive, 6

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