UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
JAMES B. STEGEMAN, Plaintiff/Appellant
APPEAL NO. 08-16174-C DISTRICT COURT NO. 1:08-CV-1971 MOTION TO RECUSE
Vs.
SUPERIOR COURT STONE MOUNTAIN JUDICIAL CIRCUIT; SUPERIOR COURT JUDGE CYNTHIA J. BECKER; GEORGIA POWER CO.; BRIAN P. WATT; SCOTT A. FARROW; Defendants/Appellees
Comes Now Appellant who files Motion to Recuse Judges Hull, Marcus and Wilson from the above entitled matter under 28 U.S.C.S. §455, and Marshall v. Jerrico Inc,. 466 U.S. 238, 242, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980) which stated: “The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts of the law.” The above is applicable to this court by application of Article VI of the United States Constitution and Stone v. Powell, 428 US 465, 483 n. 35, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976) which held: “…like Federal courts, have a
constitutional obligation to safeguard personal liberties and to uphold federal law.” Currently, before the United States Supreme Court is Appellant‟s Petition for Writ of Cert.; United States Supreme Court Docket No.: 08-8320 filed
January 20, 2009 and docketed January 26, 2009 (see attached as “A”) from Appeal No.: 07-13540-BB in which Judges Hull, Marcus and Wilson affirmed District Court‟s Order in case No.: 1:06-cv-2954-WSD. The following paragraphs will show grounds for recusal of the three above listed judges, who have in the past deliberately violated other litigant‟s personal liberties and /or has wantonly, willingly refused to provide due process and equal protection to all appellants or appellees before the court, or has behaved in a manner inconsistent with that which is needed for a full, fair, impartial decision.
A.
U.S.C. §455 Recusal Statute In support of Appellant‟s Motion, Appellant relies on 28 U.S.C. 455(b)(2):
“Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”. Due to the pending Petition for Writ of Certiorari filed in the United States Supreme Court1 filed from this Court‟s Affirmation of Judge Duffey‟s ruling dismissing Appellant‟s complaint for Civil and Constitutional Rights violations;
1
There is a copy of the docketing attached hereto as “A”
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and this Court like the Trial Court, refused to address Appellant‟s “protected class” status as a disabled individual, as well as his Pro Se status2. An objective observer, lay observer, and/or disinterested observer would entertain significant doubt of these three judges‟ impartiality. “A judge shall disqualify himself or herself in a proceeding in which the judge‟s impartiality might reasonably be questioned.” 3 “Disqualification is required if an objective observer would entertain reasonable questions about the judge‟s impartiality…to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified.” [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994). “…an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge‟s impartiality”. See Parker v. Connors Steel Co., 855 F.2d 1510 (11th Cir.) (1988) citing Potashnick v. Port City Const. Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed. 2d 22 (1980).
B.
Due Process and Equal Protection The Rulings of the Trial Court and Affirmation by this Court in Stegeman v.
Georgia, et., al., resulted in the case at bar. Had Superior Court of Stone Mountain
2
Pleadings of litigants that are disabled “protected class” status, or Pro Se status, are treated differently than a non-protected class member, or a represented litigant. Both this Court and the Trial Court failed to view Appellant‟s pleadings going against Supreme Court findings, stare decisis and past case precedent.
3
The American Bar Association‟s Model Rule of Judicial Conduct, Canon 2, R. 2.11(A)(2007).
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Judicial Circuit been held accountable for its‟ actions 4 in Stegeman v. Georgia, et., al.,5 the Superior Court most likely would not have continued the now policy of violating Appellant‟s Civil and Constitutional Rights under color of law. “The Due Process Clause serves two purposes…One is to produce, through the use of fair procedures to prevent the wrongful deprivation of interests; …the other is a guarantee of basic fairness, i.e.: to make people feel that they have been treated fairly.”6 “[t]rial before an „unbiased judge‟ is essential to due process.” Johnson v. Mississippi, 403 U.S. 212, 216 (1971); accord Concrete Pipe & Prods. V. Constr. Laborers Pension Trust, 508 U.S. 602, 617 (1993) “due process requires a neutral and detached judge in the first instance.” (citation omitted) “justice must give the appearance of justice” Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13 (1954). See Mathews v. Eldridge, 424 U.S. 319, 344 (1976)..., by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” “even if there is now showing of actual bias”, “due process is denied by circumstances that create the likelihood or the appearance if bias” Peters v. Kiff, 407, U.S. 493, 502 (1972)
4
There is no question that denying a litigant the Right of an Appeal, tampering with an appeal, tampering with records, are violations of Equal Protection and violations under color of law or color of authority; Judges are not immune from acts under §§241, 242.
5 6
Appeal No.: 07-13540-BB
Lectric Law Library http://www.lectlaw.com
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C.
Appellant’s Disabled and Pro Se Status Appellant, having been denied State programs which receive Federal
Funding, has again been forced to proceed as Pro Se in an effort to protect his interests, property and his Rights. This Court Denied appointment of counsel in Judge Hull‟s Order dated ____ giving no reason for denial. Georgia Supreme Court‟s Equal Justice Commission Committee On Civil Justice.7 The “Minutes” of the December 4, 2006 Meeting: “…in August 2006, the ABA endorsed the right to counsel in certain civil cases, also known as the civil Gideon…The kinds of cases of which the ABA endorses a civil right to counsel…” “The ABA‟s principles endorse the inclusions of all persons in a state‟s system for the delivery of civil legal aid, including …the disabled…vulnerable populations…” “Fourth,…promote …the judiciary and court personnel in reforming rules, procedures and services to expand and facilitate access to justice…to support pro se litigants.” “Clients that most touch the public‟s sympathy are children,…and the disabled.” Obviously refusing to liberally construe the pleadings of a disabled Pro Se litigant, who has been denied both protection and Federally funded State legal programs for which he is eligible and qualified, has resulted in further unreasonable discrimination, meaningful access to the Courts, and denial of equal protection by the State. Denial of due process shows bias/prejudice against a disabled, pro se litigant.
7
U.S. District Court Judge William S. Duffey, Jr. sits on the Committee, Appellant filed Motion to Recuse Judge Duffey which was denied.
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This Court held in it‟s Unpublished Opinion of Nadler v. Harvey, No. 0612692 (2007)C11.000153
8
“…occurs when a disabled individual is treated
differently than a non-disabled or less disabled individual…” In this Court‟s published opinion of Miller v. King, et., al., 449 F.3d 1149, 17 A.D. Cases 1758 (11th Cir. 2006)9 in which the opinion was vacated in full “in light of the Supreme Court‟s decision in United States v. Georgia, 546 U.S. ___ 126 S. Ct. 877 (2006)”, it was held: At [13] “However, the analytical difficulties created by Miller;s pro se pleadings are now heightened by the Supreme Court‟s decision in Georgia, which indicates that it is important for lower courts to determine on a claim by claim basis (1) which aspects of the State‟s conduct violate Title II; (2) to what extent such alleged misconduct also violates the Constitution; and (3) whether such alleged misconduct violates Title II but does not violate the Constitution. Georgia 546 U.S. at___, 126 S. Ct. at 882.” At [20] “*fn 3 Miller filed his complaints pro se and remained pro se until this Court appointed him pro bono counsel on appeal.” Although both the Supreme Court and this Court have previously held that pro se pleadings are to be held to less stringent standards than those drafted by attorneys, neither the District Court, nor this Court have provided that privilege to Appellant. The Judges listed above held Appellant‟s pleadings to at least as
stringent as ones drafted by attorneys showing complete bias/prejudice.
8 9
The case was before Judges Edmondson, Hull and Forrester The case was before Judges Carnes, Hull and Hill
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“Pro se pleadings are to be considered without regard to technicality; pro se litigants' pleadings are not to be held to the same high standards of perfection as lawyers.” Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233 "Pleadings are intended to serve as a means of arriving at fair and just settlements of controversies between litigants. They should not raise barriers which prevent the achievement of that end. Proper pleading is important, but its importance consists in its effectiveness as a means to accomplish the end of a just judgment." Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938) "Where a plaintiff pleads pro se in a suit for protection of civil rights, the Court should endeavor to construe Plaintiff's Pleadings without regard to technicalities." Picking v. Pennsylvania Railway, 151 F.2d. 240, Third Circuit Court of Appeals “Pro Se parties have the right to Appeal, and submit their briefs on appeal even though they may be inartfully drawn”, see Vega v. Johnson, 149 F.3d 354 (5th Cir. 1998). “Courts will go to particular pains to protect pro se litigants consequences of technical errors if injustice would otherwise result.” U. S. v. Sanchez, 88 F.3d 1243 (D.C. Cir. 1996). Moreover, “the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975) quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1971).
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CONCLUSION Appellant has shown beyond doubt that these three judges should refrain from presiding over his appeal. Appellant Moves this Honorable Court to grant his Motion to Recuse the three above listed Judges.
Respectfully Submitted, this 16th day of February, 2009
BY: ___________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd. Stone Mountain, GA 30083 (404) 300-9782
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U. S. COURT OF APPEALS FOR THE ELEVENTH CIRCUIT CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT
James B. Stegeman, et.,al., vs. Superior Court, et.,al., Appeal No. 08-16174-C Pursuant to and in compliance with The U.S. Court of Appeals For The Eleventh Circuit Rule 26.1-1, General Order 34 amending Eleventh Circuit Rules 26.1-2 and 26.1-3, Plaintiff/Appellant submits his Certificate of Interested Persons and Corporate Disclosure Statement: Baker, Thurbert A. (Georgia Attorney General) Becker, Judge Cynthia J_______________________________________________ Duffey, Jr. Judge William S. (United States District Court) Farrow, Scott A. (Defendant) Georgia Power Company (Defendant) McDonald, Janet D. (Plaintiff) Orland, Devon (Attorney – Defendants Superior Court/Judge Becker) Reinhardt, Daniel S. (Attorney – Defendants Georgia Power, Farrow, Watt) Troutman Sanders LLP (Law Firm ) Southern Company (Owner of Georgia Power Co.) State of Georgia Superior Court (Defendant) Stegeman, James (Plaintiff)____________________________________________
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Appeal No. 08-16174-C, James B. Stegeman, et.,al., vs. Superior Court, et.,al.,
Watt, Brian P. (Defendant
CERTIFICATION I, James B. Stegeman the Plaintiff/Appellant, hereby Certify that to the best of my knowledge and belief, that the above Certificate is complete. I understand my obligations to include and or omit persons and or entities in future Certificates and my obligations to abide by 11 th Cir. R. 26.1-2 and 11th Cir. R. 26.1-3 concerning future Certificates.
By: ____________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782
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CERTIFICATE OF SERVICE I Certify that I have this 16th day of February, 2009 served a true and correct copy of the foregoing Motion To Recuse upon Defendants/Appellees, through their attorneys on record by causing to be deposited with the U.S.P.S., First Class Mail, proper postage affixed thereto, addressed as follows: Daniel S. Reinhardt Troutman Sanders, LLP Bank of America Plaza – Suite 5200 600 Peachtree Street, NE Atlanta, GA 30308-2216 Devon Orland State of Georgia Dept. of Law 40 Capitol Square, S.W. Atlanta, GA 30334-1300
_______________________________ JAMES B. STEGEMAN, Pro Se 821 Sheppard Rd Stone Mountain, GA 30083 (404) 300-9782
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