Mims v. Shapp
| Decision Date | 01 September 1976 |
| Docket Number | No. 75-2174,75-2174 |
| Parties | Jeffrey Roger MIMS, et al., Appellants, v. Milton SHAPP, Governor of the Commonwealth of Pennsylvania, et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Paul R. Gettleman, Pittsburgh, Pa., for appellants.
Frederick R. Nene, Asst. Atty. Gen., Robert P. Kane, Atty. Gen., Pittsburgh, Pa., for appellees.
Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
This is an appeal from a final order dismissing a Civil Rights Act complaint seeking injunctive relief and damages. The suit was filed by nine inmates confined in the Behavioral Adjustment Unit (B.A.U.) at the Pennsylvania State Correctional Institution at Pittsburgh. The B.A.U. is a separate housing unit to which are transferred prisoners considered to have behavioral problems which make their inclusion in the general prison population undesirable. The complaint, which seeks class action relief, alleges violations of rights secured to the plaintiffs and other class members by the first, fifth, sixth, eighth and fourteenth amendments. It demands jury trial on those issues triable to a jury. The appellants contend that the district court erred; (1) in denying certification of the case as a class action; (2) in denying injunctive relief; (3) in deciding their disputed claim for damages without a jury trial. Each of these contentions present serious legal and factual issues on appeal. We reach none of them, however, because a fourth contention is dispositive of the appeal and requires that all of the orders complained of be vacated. That fourth contention is that in ruling on appellants' motion to disqualify himself the district judge applied the wrong legal standard under 28 U.S.C. § 144. We agree, and conclude that all proceedings from December 10, 1974, the date of the § 144 motion, must be vacated and the case returned to the district court for reassignment to a different judge. 1
Prior to any of the rulings which are the subject of this appeal two plaintiffs filed affidavits alleging that the district court had a personal bias or prejudice against them and in favor of the defendants. The affidavits were accompanied by the certificate of counsel of record stating that they were made in good faith. The affidavits alleged that the district judge made certain statements during a hearing on a temporary restraining order and in another proceeding indicating such personal bias. It is not necessary to set forth the affidavits in their entirety. These excerpts give the flavor:
Plaintiff Burton's affidavit alleges that the district judge (1) sent for a copy of an unrelated state court murder indictment, marked it as a court exhibit, interrogated Burton about it, and warned him that he was subject to the perjury laws of the United States; (2) drew comparisons between Burton and a notorious inmate named Hoss; (3) said of Burton "If we had capital punishment, this man would not have been involved with the killing of those two prison wardens"; (4) said ; (5) said of defendant Howard "I trust that the Warden will do no wrong." Plaintiff Scoggins' affidavit alleges that the district judge (1) at a hearing in another case said to Scoggins "It was unfortunate that you got the 'chair' off of you and you should have gone to the electric chair, but unfortunately the U.S. Supreme Court ruled that the death penalty was unconstitutional because it was cruel and unusual punishment"; (2) at that hearing told Scoggins "If I had anything to do with it you would have gone to the electric chair"; (3) on information and belief, that the district judge claimed Scoggins was the vilest person ever to appear before his court.
The excerpts suffice to establish that the affidavits charged the district judge with conduct on the bench exhibiting a personal bias against some of the plaintiffs and in favor of some of the defendants. The district court disposed of the motion for disqualification as follows:
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United States v. Boffa
...of the facts alleged, would a reasonable person conclude that a personal as distinguished from a judicial bias exists. Mims v. Shapp, 541 F.2d 415, 417 (C.A.3, 1976). Personal bias is defined as an attitude arising from extrajudicial sources that results "in an opinion on the merits on some......
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Danielson v. Winnfield Funeral Home of Jefferson, Civ. A. No. 80-815.
...States, N.D.Tex.1969, 321 F.Supp. 286, 287-88. This is so, even when the judge has personal knowledge to the contrary. Mims v. Shapp, 3 Cir.1976, 541 F.2d 415, 417. However, the judge need not, and should not, accept as true any conclusory allegations. United States v. Bennett, 10 Cir.1976,......
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