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Statton v. Kiser

United States District Court, M.D. Florida, Tampa Division

December 20, 2019

JOSHUA STATTON, Plaintiff,
v.
MARK D. KISER, DEPUTY SHERIFF J. SMITH, DEPUTY BASS, UNNAMED DEPUTIES ON DUTY, CHAD CHRONISTER, as SHERIFF FOR HILLSBOROUGH COUNTY, PAT FRANK, RONALD FICAROTTA, THIRTEENTH JUDICIAL CIRCUIT, and unknown DOES, Defendants.

          ORDER DENYING PLAINTIFF'S MOTIONS FOR DISQUALIFICATION

          TOM BARBER UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff Joshua Statton's pro se “First Motion to Disqualify Judge Thomas Barber, ” filed on August 6, 2019. (Doc. # 67). On August 8, 2019, Defendants Chad Chronister, as Sheriff for Hillsborough County, Deputy Sheriff J. Smith, and Unnamed Deputies on Duty, filed an objection to the Motion to Disqualify. (Doc. # 68). On October 4, 2019, Mr. Statton filed his “Motion for Ruling on Plaintiff's Motion to Disqualify and Supplement to Motion to Disqualify” (Doc. # 70), containing new allegations to arguing for disqualification.[1]On November 17, 2019, Mr. Statton filed a “Second Supplement in Support of Motion to Disqualify Judge Thomas Barber” (Doc. # 71), again containing new allegations. After reviewing the motions, objection, court file, and the record, the Court finds as follows:

         Legal Standard

         The Court addresses Mr. Statton's arguments under 28 U.S.C. § 455.[2] The standard for recusal is “whether a reasonable person knowing all the facts would conclude that the judge's impartiality might reasonably be questioned.” United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986); see also Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000); In re Ford, Case No. 8:18-cv-2053, 2018 WL 7360654, at *1 (M.D. Fla. Oct. 11, 2018). “Because a judge is presumed to be impartial, a party seeking recusal bears the substantial burden of proving otherwise.” United States v. Martinez, 446 F.3d 878, 883 (8th Cir. 2006) (citation omitted).

         Although federal judges have a duty to recuse themselves when a disqualifying factor comes to light, a judge also has a duty to retain a case when faced with a meritless recusal motion. See In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988) (“A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is.”). This is “because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons perhaps to obtain a judge more to their liking.” In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989); see Greenough, 782 F.2d at 1558 (explaining twin policies of the § 455(a) standard).

         Under the federal disqualification procedure, a judge does not and should not accept as true the allegations or speculation of the moving party. See, e.g., Greenough, 782 F.2d at 1558; United States v. Bennett, 539 F.2d 45, 51 (10th Cir. 1976); United States v. Platshorn, 488 F.Supp. 1367, 1368-69 (S.D. Fla. 1980). This is very different from the disqualification procedure that currently exists in the Florida state courts where judges are required to accept all allegations as true and are prohibited from identifying and rejecting allegations that are misleading, inaccurate, or outright false. Under the Florida state court disqualification procedure, unscrupulous parties are free to abuse and manipulate the system to obtain a judge more to their liking simply by filing an affidavit containing demonstrably false allegations. The federal disqualification procedure operates differently. See Greenough, 782 F.2d at 1558 (“If a party could force recusal of a judge by factual allegations, the result would be a virtual ‘open season' for recusal.”)

         Nonetheless, in federal courts “the judge must still tread cautiously, recognizing, on the one hand, the great importance of the judicial institution of avoiding any appearance of partiality, while simultaneously remaining aware of the potential injustices that may arise out of unwarranted disqualification.” In re Allied-Signal Inc., 891 F.2d at 970. “A judge, having been assigned to a case, should not recuse himself on unsupported, irrational, or highly tenuous speculation.” Harris v. Geico Gen. Ins. Co., 961 F.Supp.2d 1223, 1227-28 (S.D. Fla. 2013) (quoting Carter v. West Pub. Co., No. 99-11959-EE, 1999 WL 994997, at *2 (11th Cir. Nov. 1, 1999)).

         Analysis

         First Motion For Disqualification (Doc. # 67) [3]

         In his first motion for disqualification, filed on August 6, 2019, Mr. Statton alleges he is the president of a non-profit organization that engaged in various activities opposing my appointment to the federal bench. He also alleges that he submitted a FOIA request to the now defunct Federal Judicial Nominating Commission in an attempt to obtain a copy of the application I submitted to that body, and he ultimately filed suit in the Middle District of Florida to compel disclosure of that application. This action was dismissed due to lack of subject matter jurisdiction, and the appeal is currently pending before the Eleventh Circuit Court of Appeal.

         Upon careful consideration, the Court finds that disqualification is not warranted in these circumstances. This is not the first time a case of this nature has come before the federal courts. In DeNardo v. Municipality of Anchorage, 974 F.2d 1200, 1201 (9th Cir. 1992), the plaintiff actively opposed the judge's judicial appointment by sending a letter to the Senate Judiciary Committee. The Ninth Circuit Court of Appeal held that disqualification was not necessary, explaining that “[s]uch a letter is probative of [the plaintiff's] dislike for [the judge], not the other way around.” That is precisely the case here. I have never met Mr. Statton, nor have I ever presided over a case where he was a party in my prior position as a state court judge. His efforts in connection with my judicial appointment were of no consequence and immediately recognized by everyone involved in the process for what they were - a poorly-disguised attempt by his employer, convicted felon Christina Paylan, to retaliate against me for sentencing her to jail in 2014, when I presided over her criminal trial as a state court circuit judge. That 364-day jail sentence resulted from a jury verdict finding her guilty of two separate felony crimes, each punishable by up to five years in prison (Obtaining a Controlled Substance by Fraud, and Fraudulent Use of Personal Information).[4]

         It is common for convicted felons to blame the presiding judge in their cases for their predicaments. And it is not unusual for disgruntled criminals to attempt to retaliate in various ways against the judges that sentence them. It is well-established that a judge's adverse prior decisions, including sentencing a defendant to jail or prison, do not require disqualification in subsequent cases. See, e.g., Christo v. Padgett, 223 F.3d 1324, 1334 (11th Cir. 2000) (holding that a district court judge's prior sentencing of a civil plaintiff in a criminal proceeding, and the fact that the judge presided over other litigation involving the civil plaintiff's family, did not require disqualification from the civil action).

         Moreover, parties sometimes conduct themselves in a manner that “predictably engender[s] a judge's animus, but such behavior does not trigger the need for disqualification. To hold otherwise would be to create an opportunity for parties to exhibit hostile behavior strategically, as a means to force disqualification.” Charles Gardner Geyh, Fed. Judicial Ctr., Judicial Disqualification: An Analysis of Federal Law 46 (Markarian 2d ed. 2010). In this case, Mr. Statton's own public hostility counsels against disqualification, “lest we encourage tactics designed to force recusal.” See United States v. Bertoli, 40 F.3d 1384, 1414 (3d Cir. 1994); In re Kozich, 534 B. R. 427, 429 (S.D. Fla. Bankr. 2015). “Forcing judges to recuse because a litigant has criticized the judge would give litigants veto power over judges and allow forum shopping. It would also stretch the recusal statutes far beyond their intended purpose and potentially force disqualifications in a large number of cases.” Salt Lake Trib. Pub. Co., LLC v. AT&T Corp., 353 F.Supp.2d 1160, 1176 (D. Utah 2005).

         As an additional argument in support of his disqualification request, Mr. Statton cites to the fact that he has filed a FOIA action seeking a copy of my application to the Federal Judicial Nominating Commission. However, this does not require my disqualification. “[A] judge is not disqualified merely because a litigant sues or threatens to sue him.” In re Bush,232 Fed.Appx. 852, 854 (11th Cir. 2007) (quoting United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977)); accord United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986); see Cuyler v. Aurora Loan Servs. Inc., No. 12-11824-DD, 2012 ...


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