Varela v. Jones

• Citation: 746 F.2d 1413
• Decision Date: 24 October 1984
• Docket Number: No. 82-2237,82-2237
• Parties: Georgia VARELA, Plaintiff-Appellant, v. John JONES, individually, and in his capacity as a Raton City Police Officer, Richard Schultz, individually and in his capacity as the acting Chief of Police for the City of Raton, Jay Finch, and City of Raton, a chartered municipality, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1413

746 F.2d 1413

Georgia VARELA, Plaintiff-Appellant, v. John JONES, individually, and in his capacity as a Raton City Police Officer, Richard Schultz, individually and in his capacity as the acting Chief of Police for the City of Raton, Jay Finch, and City of Raton, a chartered municipality, Defendants-Appellees.

No. 82-2237.

United States Court of Appeals Tenth Circuit.

Oct. 24, 1984.

Donald D. Montoya, Santa Fe, N.M., and Richard Rosenstock, Chama, N.M., for plaintiff-appellant.

Phil Krehbiel, Albuquerque, N.M. (Robert H. Clark, Albuquerque, N.M., with him on brief) of Keleher & McLeod, Albuquerque, N.M., for defendants-appellees.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

This appeal is from a judgment for defendants in a civil rights suit under 42 U.S.C. Sec. 1983. Plaintiff Georgia Varela filed suit based upon her arrest by defendant John Jones, a police officer employed by the City of Raton, New Mexico. Plaintiff also sued Jay Finch, Raton police chief at the time Jones was hired, Richard Schultz, acting police chief at the times of Jones' alleged unlawful conduct, and the City of Raton. The trial court dismissed the City of Raton as a party to the lawsuit and submitted the case against the three policemen to the jury. After the jury returned a verdict in favor of the three defendants, the court denied plaintiff's motion for a new trial. Plaintiff appeals, arguing that the trial judge erred in (1) refusing to recuse himself, (2) refusing to admit evidence regarding defendant Finch's misconduct as Chief of the Raton Police Department, and (3) instructing the jury a) that defendant Jones was entitled to assert a good faith defense to the claims asserted against him in his official capacity as a police officer, b) that Jones was justified in using force if he believed in good faith such force was necessary, and c) that if the jury found Jones acted in good faith it need not determine the liability of the remaining defendants.

The case arose out of events occurring on December 31, 1979. On that evening plaintiff and her husband went to Uncle Louie's Bar in Raton to celebrate New Year's Eve. There they got into an argument with one of the owners, Louis Lucero, and left the bar. After arriving home, plaintiff called the Raton Police Department and reported that minors were serving liquor at Uncle Louie's. Plaintiff later went back to the bar to see if the police had investigated her complaint. When she arrived she saw several police officers, including defendant Jones, arresting a male suspect on an unrelated offense. Apparently the officers told plaintiff they had checked out her complaint and found no minors working at the bar; they also asked plaintiff to move her vehicle because it was blocking the flow of traffic. Plaintiff started using abusive language against a police officer and did not move her car. At some point during this scene, Officer Jones placed plaintiff under arrest for disorderly conduct and interfering with police officers. Jones handcuffed plaintiff and drove her to the police station. Plaintiff alleged that Jones "grabbed" her by the breasts to remove her from the police car. Jones denied this charge. He testified that at the police station plaintiff refused to get out of the police car; that he attempted to pick her up and carry her into the station; that he placed one arm underneath her leg and the other behind her shoulder blades; and that in doing so he slipped on the icy ground and fell on plaintiff.

At the police station, after several police officers urged Jones to release plaintiff, he dropped the charges against her. A police internal affairs investigation absolved Jones of any charges of improper conduct. Thereafter, plaintiff commenced the suit from which she took this appeal.

I

Plaintiff argues that the trial judge should have recused himself because Clyde Worthen, a former law clerk of the judge and one of defendant's trial counsel, handled the probate of the estate of the judge's deceased mother during discovery in this case. The judge brought the representation to plaintiff's attention after the trial but denied plaintiff's recusal motion. We may reverse that denial on appeal only if the judge abused his discretion. Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 69, 78 L.Ed.2d 83 (1984). We find no abuse of discretion in that denial.

Under 28 U.S.C. Sec. 144, a federal judge may be disqualified upon a showing of actual bias or prejudice. Plaintiff's motion did not allege that the trial judge was biased against her. See United States v. Professional Air Traffic Controllers Organization, 527 F.Supp. 1344, 1357 (N.D.Ill.1981) ("[P]ersonal bias or prejudice refers to some sort of antagonism or animosity toward a party arising from sources or events outside the scope of a particular proceeding."). Plaintiff does not suggest that the trial judge made any adverse comments about her or her lawsuit, that the judge had personal knowledge of evidentiary facts, that any of his rulings were the product of bias, that he had any personal interest or financial stake in the litigation, or that he was partial toward defense counsel. See Code of Judicial Conduct for United States Judges Canon 3 C (Judicial Conference of the United States 1983). Our review of the record available to us reveals no evidence of less than even-handed treatment of the parties. In short, plaintiff does not make any allegations or present any proof that she lost the case because of the judge's bias, or that bias influenced the judge's rulings.

Any claim for disqualification must be based, if at all, on 28 U.S.C. Sec. 455(a). Under that section, "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." In United States v. Hines, 696 F.2d 722, 729 (10th Cir.1982), we discussed the scope of Sec. 455(a) and stated,

"Although we acknowledge that the intent in amending section 455 was to negate even the appearance of partiality in judicial proceedings, section 455(a) must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice."

See also Crider v. Keohane, 484 F.Supp. 13, 15 (W.D.Okla.1979).

Plaintiff cites two cases, Smith v. Sikorsky Aircraft, 420 F.Supp. 661 (C.D.Cal.1976), and Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (1980), that she believes demonstrate that the trial judge should have disqualified himself from hearing her civil rights case because of his relationship with attorney Worthen. In Sikorsky the trial judge voluntarily disqualified himself from trying a case when plaintiff's law firm retained as co-counsel an attorney who on two previous occasions had represented the judge both personally and in his judicial capacity. In Potashnick the court held that the district judge erred in refusing to disqualify himself. The judge was involved in business dealings with plaintiff's attorney and the judge's father was a senior partner in the firm representing the plaintiff and thus the judge's father could benefit financially from the outcome of the case. Both cases are easily distinguishable from the case at bar.

At the time his work commenced on the instant case, in 1980, attorney Worthen was an associate with Keleher & McLeod. Thereafter, in January 1981 William Keleher, another member of the law firm, who had drafted the will of the judge's recently deceased mother, asked Worthen to handle the probate of that estate. Because the judge was named as executor in his mother's will but did not wish to serve in that capacity, Worthen prepared a renunciation form that the judge signed. The probate court appointed the judge's sister as personal representative, and Worthen thereafter completed the probate and closed the estate.

Several times during the probate proceedings Worthen wrote to and spoke with the judge, who was a beneficiary of the estate. Because his sister was in poor health, the judge acted as a messenger in carrying legal papers to his sister and in conveying her desires on matters to Worthen. As a courtesy, Worthen sent the judge carbon copies of most letters he wrote in connection with the probate.

We hold that the circumstances described do not present a case in which the judge's impartiality in handling the civil rights case at bar might reasonably be questioned. The attorney handling the probate of the judge's deceased mother's estate represented the estate and the personal representative appointed to handle it, not the judge. The judge's mother selected William Keleher of Keleher & McLeod to draft her will; Keleher and his secretary witnessed the will. It was not extraordinary that the personal representative of the estate would select Keleher's firm to handle the probate. There appears to have been nothing unusual in this probate proceeding, no contest or controversy; it consisted of simply inventorying decedent's property, paying taxes and creditors, and distributing the remaining assets according to the will. The attorney apparently charged the estate the normal fee for handling the probate. The judge was not a client of the attorney handling the estate, nor did he appear to be a client, simply because he was a beneficiary under his mother's will. We see nothing sinister in the judge's ill sister relying upon him to bring probate papers to her from the attorney and to convey messages from her to the attorney, nor in the...