Singer v. Wadman

• Decision Date: 27 September 1984
• Docket Number: 83-1501,Nos. 82-2273,s. 82-2273
• Citation: 745 F.2d 606
• Parties: Vickie SINGER, et al, Plaintiffs-Appellants, v. Robert WADMAN, et al, Defendants-Appellees. Vickie SINGER, et al, Plaintiffs-Appellants, v. Walter D. TALBOT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 606

745 F.2d 606

Vickie SINGER, et al, Plaintiffs-Appellants, v. Robert WADMAN, et al, Defendants-Appellees.

Vickie SINGER, et al, Plaintiffs-Appellants, v. Walter D. TALBOT, Defendant-Appellee.

Nos. 82-2273, 83-1501.

United States Court of Appeals Tenth Circuit.

Sept. 27, 1984.

Robert P. Schuster, Jackson, Wyo. (and Gerry L. Spence, Edward P. Moriarity, and Bradley L. Booke of Spence, Moriarity & Schuster, Jackson, Wyo., and Kathryn Collard of Collard, Pixton, Iwasaki & Downes, Salt Lake City, Utah, with him on the brief), for plaintiffs-appellants.

Allan L. Larson, Salt Lake City, Utah (and David W. Slagle of Snow, Christensen & Martineau, and Robert R. Wallace, Asst. Atty. Gen., Salt Lake City, Utah, with him on the briefs), for Scott Matheson, Robert Wadman, Larry Lunnen, Robert Reid, and Bill Riggs, defendants-appellees.

Tim Dalton Dunn of Hanson, Russon & Dunn, Salt Lake City, Utah (Craig S. Cook, Salt Lake City, Utah, of counsel, with him on the brief), for Jolley, Larsen, Farley, Carlson, Fullmer, Gunderson, Schouten and Hayward, defendants-appellees.

Glenn C. Hanni, Salt Lake City, Utah (and Robert A. Burton of Strong & Hanni, P. Keith Nelson and Gary B. Ferguson of Richards, Brandt, Miller & Nelson, W. Eugene Hansen and Ralph L. Dewsnup of Hansen & Thompson, Salt Lake City, Utah, with him on the brief), for Ron Robinson, Robert Adkins, and Terry Christiansen, defendants-appellees.

J. Michael Hansen, (and Stewart M. Hanson, Jr., of Suitter, Axland, Armstrong & Hanson, Salt Lake City, Utah, with him on the briefs), for Larry Henley and Robert A. Bates, defendants-appellees.

David L. Wilkinson, Atty. Gen., and John S. McAllister, Asst. Atty. Gen., Salt Lake City, Utah, were on the brief for Walter D. Talbot, defendant-appellee.

Walter R. Ellett, Murray, Utah, and A. Alma Nelson and Don J. Hanson, Bayle, Hanson, Nelson & Christensen, Salt Lake City, Utah, were on the brief for Val D. Edrington and South Summit School Dist., defendants-appellees.

Before LOGAN, BREITENSTEIN, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

John Singer was shot and killed by law enforcement officer Louis Jolley on January 18, 1979. Jolley, along with nine other Utah law enforcement officials, was attempting to arrest Singer. At the time of the arrest attempt, there were two outstanding warrants calling for Singer's arrest. One was a misdemeanor warrant based on Singer's conviction for violations of the Utah Compulsory Attendance Law, Utah Code Ann. Secs. 53-24-1 and -3 (1981). The second was a felony warrant based on his resistance during a prior attempt to arrest him under the authority of the misdemeanor warrant. The scene of the shooting was in front of Singer's home. As Singer walked towards his mailbox, a team of ten officers on snowmobiles attempted to surround him. The plan was that when confronted with a show of force Singer would surrender. Tragically, he did not, but instead drew a pistol from his waistband and pointed it at the authorities as he tried to run towards his house. It was in this setting that Jolley shot and killed Singer.

Based on this shooting incident, Vickie Singer, the widow, on behalf of herself and her minor children, and as personal representative of her deceased husband's estate, instituted the present action in the United States District Court for the District of Utah against numerous Utah officials, including Lew Jolley, members of the arrest team, the Summit County School District and Superintendent of Schools, the Summit County Attorney, and Deputy County Attorney, the State Superintendent of Public Instruction, and the Governor of Utah. The complaint set forth nine claims for relief, five of which alleged constitutional violations under 42 U.S.C. Sec. 1983, and four were pendent state tort claims. Extensive discovery followed, with the result that approximately seventy-two persons were deposed. The defendants then moved for summary judgment. The district court issued a 218-page Memorandum Decision and Order granting the motion and entered judgment in favor of all defendants. The Singers appeal. ^*

Before considering the merits of the appeal, the appellants argue that the trial judge erred in refusing to disqualify himself from the case pursuant to 28 U.S.C. Sec. 144 and 28 U.S.C. Sec. 455(a). The plaintiffs-appellants filed a motion to disqualify the trial judge, the Honorable David K. Winder, to whom the case had been assigned. One of the grounds asserted was that he was a Mormon and that, according to counsel, the case involved, inter alia, a challenge to the theocratic power structure of Utah. Plaintiffs also claimed that the trial judge was biased because of his former law partnership with one of the defense counsel. Plaintiffs contended the trial judge's partiality was shown by the numerous caustic remarks aimed at plaintiffs in his 218-page opinion. The trial judge denied the motion to disqualify, and in thus ruling we find no abuse of discretion.

In the first place, the motion to disqualify was not, in our view, timely filed. The motion was filed about one year after the complaint was filed and after the appellants had suffered some adverse rulings on interlocutory matters. Further, the grounds asserted in the motion to disqualify are legally insufficient. See United States v. Ritter, 540 F.2d 459 (10th Cir.), cert. denied sub nom. Olson Farms, Inc. v. United States, 429 U.S. 951, 97 S.Ct. 370, 50 L.Ed.2d 319 (1976); Parrish v. Board of Commissioners, 524 F.2d 98, 100 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). As for Judge Winder's former partnership with a lawyer for one of the defendants, we do not believe this requires his disqualification. See Miller Industries v. Caterpillar Tractor Co., 516 F.Supp. 84 (D.Ala.1980). Finally, the various remarks made by the district judge during the course of the proceedings do not, as counsel suggests, substantiate the claim of bias or prejudice. On the contrary, in our view, the district judge exhibited commendable patience and restraint throughout this admittedly and understandably emotional affair.

Turning now to the merits of the case, we first recognize that there is a certain reluctance to grant summary judgment in a civil rights conspiracy case, since the existence or nonexistence of a conspiracy is generally a fact issue. Adickes v. Kress & Co., 398 U.S. 144, 176, 90 S.Ct. 1598, 1618, 26 L.Ed.2d 142 (1970). But summary judgment is not always inappropriate, even in a Sec. 1983 suit. The Supreme Court has declared that insubstantial suits need not proceed to trial. Harlow v. Fitzgerald, 457 U.S. 800, 808, 102 S.Ct. 2727, 2733, 73 L.Ed.2d 396 (1982). The comment of Judge John Paul Stevens, now Justice Stevens, in Kiess v. Eason, 442 F.2d 712, 713 (7th Cir.1971), has present...