Erin Baldwin Responds Quickly & Assertively to Judge Josephine Tucker’s Inappropriate Court Order

December 30, 2011 § Leave a comment

On Wednesday, December 29, 2011, Erin Baldwin filed the following pleading striking back at what she considered “a highly-inappropriate court order unbefitting a federal judge,” referring to U.S. District Court Judge Josephine Staten Tucker’s Court Order dated December 21, 2011.  For some reason, this pleading has not been scanned and uploaded on to PACER yet, so here it is directly. 

See previous post for PDFs of all the documents and more information:  “Federal Judge Josephine Acts Without Jurisdiction to Deny Disqualification of Judge David O. Carter – Erin Baldwin Appeals”:   https://cacorruptionwatch.wordpress.com/2011/12/30/federal-judge-josephine-tucker-acts-wo-jurisdiction-to-deny-disqualification-of-judge-david-o-carter-erin-baldwin-appeals/

NOTICE IS HEREBY GIVEN TO:  U.S. COURT OF APPEAL CHIEF JUDGE ALEX KOZINSKI;  U.S. DISTRICT COURT CHIEF JUDGE AUDREY B. COLLINS;  U.S. DISTRICT COURT JUDGE DAVID O. CARTER;  U.S. DISTRICT COURT JUDGE JOSEPHINE STATEN TUCKER; AND PARTY TO THIS ACTION, ORANGE COUNTY SUPERIOR COURT JUDGE FRANZ E. MILLER:

            Comes now Plaintiff, Erin K. Baldwin, appearing pro se, to file this Notice of Related Appeal of this Court’s Order dated December 21, 2011 denying Plaintiff’s December 13, 2011 Motion to Disqualify U.S. District Court Judge David O. Carter (“Judge Carter”), written by U.S. District Court Judge Josephine Staten Tucker (“Judge Tucker”), distributed to the parties on December 22, 2011 at 4:28 p.m. 

            Plaintiff requests that the United States Court of Appeal, Ninth Circuit, relate this action to the existing Appeal in Case No. 11-57210 pursuant to Federal Rules of Appellate Procedure, Rule 28‑2.6.  Plaintiff asserts that Judge Tucker’s December 21, 2011 Order arises out of the same case in the district court, raises the same or closely related issues, and involves the same events.  Accordingly, in the interest of judicial economy, Plaintiff requests that Judge Tucker’s December 21, 2011 Order be deemed related to Judge Carter’s December 2, 2011 Order for all purposes under Case No. 11-57210.

            Plaintiff bases her Notice of Appeal and Request to Relate on the following facts:

            1.         The Federal Rules of Civil Procedure do not expressly recognize motions for “reconsideration,” leaving Plaintiff the option to file a Motion for Relief under Federal Rules of Civil Procedure, Rule 60(b).  However, the hearing on said motion would be stayed pending appeal and would effectively bar Plaintiff from bringing the related claims contained in Judge Tucker’s Order to the U.S. Court of Appeal. 

            2.         Federal case law prohibits Plaintiff from “relitigating old issues, or motions for ‘initial consideration’ unless the arguments or evidence were not available earlier.” [1]  Consequently, since the two Orders are related pursuant to Federal Rules of Appellate Procedure, Rule 28‑2.6, the U.S. District Court could later bar Plaintiff’s Motion for Relief following appeal.

            3.         Judge Tucker’s Order comprises issues supporting Plaintiff’s existing Notice of Appeal as will be set forth, infra, in Plaintiff’s Statement of Related Facts.

            4.         Since Judge Tucker’s Order lacks jurisdiction, the District Court could simply set it aside as void barring Plaintiff from consolidating it with, and presenting it in support of, her present issues on appeal.

STATEMENT OF RELATED FACTS

I.

Introduction

            5.         On December 13, 2011 Plaintiff filed a Motion to Disqualify Judge Carter in accordance with Title 28 U.S.C. §455(b)(1) in reliance of Code of Judicial Conduct, Canon 3(C)(1)(a), that states: 

“A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.    

            6.         The first element, “…in which his impartiality might reasonably be questioned…” was satisfied by documentary evidence attached to Plaintiff’s motion, described here in ¶¶7-8, infra.

            7.         The second element, “…where he has a personal bias or prejudice concerning a party…” was satisfied by documentary evidence attached to Plaintiff’s motion as “Exhibit 1,” namely, a published interview [2]  in a trade association newsletter with a party to this action, U.S. District Court Judge Cormac J. Carney (“Judge Carney”).  Judge Carney described Judge Carter as good friend and jogging partner.  It matters not the date of the article [3] as the same “reasonable person” would not be privy to the current status of their relationship, only the facts as they appeared in 2004.

            8.         The third element, “…where he has personal knowledge of disputed evidentiary facts concerning the proceeding…” was satisfied by documentary evidence attached to Plaintiff’s motion as “Exhibit 2,” namely, a 2009 email identifying Judge Carter’s Courtroom Deputy, Dwayne Roberts, as a participant in a fraudulent scheme against Plaintiff and in favor of another party in this action, UDR, Inc.  The events surrounding this fraudulent scheme form the foundation of Plaintiff’s claims and accordingly, Mr. Roberts was named in the August 16, 2011 Complaint as a defendant. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

            9.         Plaintiff also relied on Title 28 U.S.C. §144 that states:

            “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

            “The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.

            “A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.” 

            10.       One hour after filing, Plaintiff’s Motion to Disqualify was assigned to United States District Court Judge Josephine Staten Tucker (“Judge Tucker”), a colleague of Judge Carter, as well as parties to the action, Judge Carney, and Orange County Superior Court Judge Franz E. Miller (“Judge Miller”).  Plaintiff gave verbal and written notice of her objection to Judge Tucker receiving this assignment to Chief Judge Audrey B. Collins (“Judge Collins”) and Judge Tucker but her objections were ignored.

            11.       On December 22, 2011 at 4:28 p.m., the Court distributed to the parties an Order dated December 21, 2011 Denying Plaintiff’s Motion to Disqualify United States District Court Judge David O. Carter (“Judge Carter”).  The third element of Plaintiff’s Motion (described in ¶8, supra) is entirely ignored in Judge Tucker’s Order; perhaps because Dwayne Roberts is also the Courtroom Deputy for Judge Tucker.

II.

Judge Tucker Lacked Jurisdiction to Enter the Order

            12.       On December 19, 2011 at 10:05 a.m., Plaintiff filed a Notice of Appeal of Judge Carter’s December 2, 2011 Order.  At that precise moment, jurisdiction over this case shifted to the United States Ninth Circuit Court of Appeal.  Judge Tucker entered her Order three days later with no jurisdiction to do so.

            13.       Jurisdiction over a case can only be in one place at a time. After a notice of appeal is filed, the trial court is divested of jurisdiction and no further proceedings can occur with one notable exception:  “A district court retains jurisdiction to correct ‘clerical’ or ‘ministerial’ errors involving the matter appealed.” [4] Because a trial court retains jurisdiction over its own records, it may exercise its power to correct clerical errors in the record despite a pending appeal.  Clearly, this exception is not applicable in the instant action

            14.       In Griggs v. Provident Consumer Discount Co.,[5] the United States Supreme Court held: “The timely filing of a notice of appeal in U.S. District Court transfers jurisdiction over orders and judgments encompassed by the notice to the Court of Appeals.”   Plaintiff’s Notice of Appeal requested the U.S. Court of Appeal to review thirty-two (32) issues all of which fall under the jurisdiction of Judge Carter who, on December 2, 2011, denied the same issues.  Accordingly, the Motion to Disqualify falls squarely within the Supreme Court ruling, “jurisdiction over orders and judgments encompassed by the notice to the Court of Appeals.”    

            15.       The Ninth Circuit, in Kern Oil & Refining Co. v. Tenneco Oil Co., [6] held:  “The appellate court is entitled to review a fixed, rather than mobile record.”  

            16.       Unlike California state law, this divestiture of jurisdiction does not rest on statute, but rather, is a judge-made doctrine designed to avoid the confusion and waste that would result from having the same issues before two courts at the same time.

            17.       Like California case law (set forth, infra) this rule exists to prevent a district court from materially modifying its decision pending appellate review.

            18.       In People v. Mendez, [7] the Court held:  “The filing of a valid notice of appeal is an event of jurisdictional significance that typically divests a trial court of jurisdiction and confers jurisdiction on an appellate court.”  The validity of Plaintiff’s Notice of Appeal is not at issue as the U.S. Court of Appeal has commenced the action by assigning a case number and serving Plaintiff with a briefing schedule.

            19.       In Valvo v. University of So. Cal., [8] the Court held: “Once a notice of appeal is filed, a trial court may not vacate or amend its own judgment or order or do any other act that would affect the rights of the parties or impact the issues on appeal – even with the parties’ consent.”

            20.       In Townsel v. Superior Court, [9] the Court held:  “The jurisdictional bar protects the role of the reviewing court by preserving the status quo until the appeal can be decided. Otherwise, a trial court could interfere with an appeal by changing the result or record under review, thereby possibly mooting the entire appellate process or significantly altering the presentation of the issues to be reviewed.”

            21.       “The trial court may not make any order which will lessen the effectiveness of the appellate court’s opinion.” [10]

            22.       “The district court’s retention of limited jurisdiction derives from both statute and decisional law and is designed to assist the appellate court by entering orders appropriate to preserving the status quo.”  [11]

            23.       “The perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” [12]

III.

Judge Tucker’s Assignment Was Defective

            24.       Judge Tucker began her December 22, 2011 Order Denying Plaintiff’s Motion to Disqualify Article III U.S. District Court Judge David O. Carter, as follows:

“Pursuant to [Central District] General Order 08-05 and Local Rule 72-5, the disqualification issue was referred to this Court for determination. (Referral, Doc. 28.)”

            25.       Contrary to Judge Tucker’s opening sentence, Local Rule 72-5 governs motions to disqualify magistrate judges, not Article III United States District Court Judges, to wit:

A motion to disqualify a Magistrate Judge pursuant to 28 U.S.C. §§144 or 455 shall be made to the assigned District Judge. If no District Judge has been assigned, the matter shall be handled by the appropriate duty District Judge. A copy of the motion shall be submitted to the assigned Magistrate Judge, and the Magistrate Judge shall not proceed with the matter until the motion has been determined. If the District Judge denies the motion, the case shall proceed as originally assigned. If the District Judge grants the motion, the case shall be returned to the Clerk for assignment to a different Magistrate Judge.”

            26.       Contrary to Judge Tucker’s opening sentence, General Order 08-05 does not apply to Plaintiff’s case either.  Section 4.0 of General Order 08-05 states:

“If a motion is made to disqualify a judge in any civil case, the motion shall be referred to the Clerk for random assignment to another judge. The judge to whom the motion is assigned shall promptly determine the motion.”

            27.       However, General Order 08-05 makes it clear that pro se civil rights cases are not considered “civil cases”; in fact, they are separated within the Order.

                        “a.         Section 1.0:     “Civil Cases”; and

                        “b.         Section 2.0:     “Habeas, Social Security & Pro Se Civil Rights Cases,” i.e., 194 Cases governed by General Order 05-07.” 

            28.       In General Order 08-05, pro se civil rights cases are not included under the definition of “civil cases.”  Since Plaintiff’s case is a pro se civil rights case, General Order 08-05 does not apply to Plaintiff at all, other than to establish that her case is segregated.  However, General Order 08-05 gives the hope for a hearing before an Article III Judge,  if …

“…a pro se civil rights plaintiff secures counsel or all the civil rights claims are dismissed without leave to amend, then the reference under this General Order shall be vacated automatically by the Clerk of the Court, and the case shall be returned to the assigned District Judge with the assigned Magistrate Judge re-designated as the discovery Magistrate Judge.”

            29.       What kind of case would you have if all your civil rights claims were dismissed without leave to amend?  What’s the point in transferring the case at that point to an Article III Judge; what’s he or she going to do?

            30.       Judge Tucker should have used General Order 05-07, entitled, “Assignment of Duties of Magistrate Judges,” as her authority, since it governs 194 Cases.  It states: “All references to this general order and any subsequent amendments may be referenced as General Order 194,” hence Plaintiff’s “194” case status. 

            31.       Within General Order 05-07, it states:

“IT IS HEREBY ORDERED that, unless restricted by General Order of this Court, United States Magistrate Judges of this Court are authorized to perform all of the duties and functions prescribed and authorized by 28 U.S.C. § 636, or any other statutes or Federal Rules of Procedure which authorize Magistrate Judges to perform judicial duties or functions. Magistrate Judges shall have the inherent power of judicial officers to implement and enforce their own orders and regulate proceedings before them, to the General Order No. 05-07 extent permitted by law.” 

“IT IS FURTHER ORDERED that the following civil and criminal matters shall be referred to the full-time Magistrate Judges:

1. Social Security disability cases;

2. Federal habeas corpus petitions;

3. Pro se §1983 and Bivens cases for pretrial purposes (except for cases where a federal judicial officer is named as a defendant)…”

            32.       Plaintiff was led to believe by Judge Carter’s October 11, 2011 Order that she was only required to submit to a Magistrate Judge for pretrial purposes only, i.e., non-dispositive motions.  The Order stated:

“Second, as Judge Pym explained, the consent of parties is not required when pretrial proceedings are referred to a magistrate judge in accordance with 28 U.S.C. § 636(b).” 

            33.       One week later Plaintiff asked Judge Carter for an Assignment Order to a District Court Judge and his clerk, Julie Barrera replied:

“Since this is not an MJ Direct Assignment Case (where they can opt out of having only an MJ hear the matter) we are not able to do what is being requested.  This is a regular 194 case.”      

            34.       At the very end of General Order 05-07, the Central District Court sneaks in a double negative to confuse pro se Section 1983 plaintiffs, to wit:

“IT IS FURTHER ORDERED that, except in cases pending before the particular Magistrate Judge for all purposes, the following civil and criminal matters shall not be referred to the Magistrate Judges: […]   

“8. Potentially dispositive motions listed in 28 U.S.C. § 636(b)(1)(A), EXCEPT in social security disability cases, non-capital state or federal habeas corpus petitions, and pro se § 1983 and Bivens cases.”          

            35.       United States Code §636(b)(1)(A) prohibits magistrate judges from hearing dispositive motions.  Nonetheless, the Central District Court of California modifies United States Code without permission. 

            36.       In effect, this Court has established a procedure to assign all pro se Section 1983 civil rights complaints to magistrate judges under the guise that “it is only for pretrial purposes only.”  However, as established, supra, General Order 05-07 allows magistrates to hear nondispositive and dispositive motions, i.e., all matters. 

            37.       Even worse, the pro se civil rights “194” plaintiffs are not entitled to withhold consent to a magistrate judge. They are trapped.  And if a magistrate judge rules against them which they probably will, the pro se civil rights “194” plaintiffs cannot appeal, because Orders of a magistrate judge are not appealable.

            38.       The Central District Court of California blatantly disobeys United States law and discriminates against pro se civil rights plaintiffs within its own written policies, customs, and procedures.  Since pro se civil rights plaintiffs are trapped with a magistrate judge, there would be no need to establish procedures about how a pro se litigant would go about filing a Motion to Disqualify a District Court Judge; because a pro se civil rights plaintiff will never get to see one.

IV.

Judge Tucker’s Order Exceeds Her Jurisdiction on Special 

Assignment with a Deliberate Intent to Prejudice Plaintiff

            39.       Judge Tucker failed to limit her evaluation and Order to Plaintiff’s disqualification motion and in so doing, defiled her Title 28 U.S.C §453 Oath of Office by documenting immaterial facts, spurting broad and maligning allegations, and espousing highly-inappropriate personal commentary with the sole objective of prejudicing Plaintiff.

            40.       Judge Tucker’s Order contains a multitude of allegations, misrepresentations, and facts immaterial to the jurisdiction of her special assignment to evaluate the merits of Plaintiff’s Motion to Disqualify. Judge Tucker’s intentional misconduct served a two-fold purpose: (a) to conceal the fact that she failed to address key issues raised in Plaintiff’s motion; and (b) to muddy the otherwise clear and simple arguments for disqualification set forth in ¶¶6, 7, and 8, supra. 

            41.       In the 2011 Spring/Summer Issue of the Orange County Federal Bar Association Newsletter Judge Tucker advocated simplicity in court documents claiming the lack of same could leave one questioning the substance of the document and/or whether the author even understands the facts or issues in the case.  However, Judge Tucker breaks her own rule in her December 21, 2011 Order, perhaps for the same reasons she cited in her interview, to wit:

“Judge Tucker’s advice for more senior attorneys is also succinct: ‘simplify’. She notes that, all too often, the arguments made by attorneys can become convoluted to the point that they leave the impression that the argument lacks substance or the attorney making the argument has little understanding of the facts or issues in the case. According to Judge Tucker, an advocate is most effective if he or she can simplify the arguments and get to the point.”

            42.       In the December 21, 2011 Order, Judge Tucker stops at nothing to portray Plaintiff as a vengeful vexatious litigant exhibiting signs of delusional paranoia in order to draw attention away from the fact that (a) she had no jurisdiction to enter the Order; (b) she intentionally ignored meritorious arguments; and (c) is embroiled in the action rendering her incapable of completing her special assignment as a neutral arbitrator.

When did it become acceptable for a federal judge to release a written order misrepresenting the facts and law to “even the score” on behalf of colleague judges? 

            43.       Judge Tucker’s Order also creates the basis of Plaintiff’s Motion to Disqualify her due to extreme bad faith, gross dilatory motives, palpable prejudice against Plaintiff, deliberate indifference and reckless disregard for Plaintiff’s constitutional rights, and disrespect for the profound oath of office she took when appointed to the United States judiciary set forth in under Title 28 U.S.C §453, to wit:

“I, Josephine Staten Tucker, do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as a United States District Court Judge under the Constitution and laws of the United States. So help me God.” 

            44.       The only task assigned to Judge Tucker was to evaluate these issues:

                        a.         Does Judge Carter have an extrajudicial relationship with a party to the action?   Answer:  Yes, his good friend and jogging buddy, Judge Carney.

                        b.         Does Judge Carter have extrajudicial access to disputed evidentiary facts about the case?   Answer:  Yes, his Courtroom Deputy, Dwayne Roberts.

                        c.         Knowing the facts set forth in “a.” and “b.,” supra, would a reasonable person question his ability to be impartial?  Answer:  Most emphatically, yes.

            45.       Judge Tucker’s Order states:

“Plaintiff filed her Complaint in federal court alleging civil rights violations against approximately 174 defendants, including a number of state court judges, law firms, and other governmental and private entities and individuals.”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          Where Plaintiff filed her Complaint and what she alleged;

                                    ii.         The number of defendants named in Plaintiff’s initial Complaint; and                                 

                                    iii.        The type of defendants named in Plaintiff’s initial Complaint.                       

                     b.        The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            46.       Judge Tucker’s Order states:

“Also on August 16, 2011, Plaintiff was notified that the action was assigned to the calendar of the Honorable David O. Carter, United States District Judge. (Doc. 2.) Plaintiff was also given notice that, pursuant to General Order 05-07, the action was referred to United States Magistrate Judge Sheri Pym to “consider preliminary matters and conduct all further hearings as may be appropriate or necessary.”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          the case assignment to the calendar of Judge Carter; and

                                    ii.         the case referral to Magistrate Sheri Pym.

                        b.         If it was important to state the referral to Magistrate Pym, wouldn’t it be as important, if not more, to state that Magistrate Pym recused herself from the case based on Plaintiff’s allegations that she had improper extrajudicial ex parte communications with Judge Franz E. Miller’s counsel, Sarah L. Overton?

                        c.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

                        d.         This part of Judge Tucker’s Order is deceptive because it intentionally omits vital facts relevant to Plaintiff’s Motion to Disqualify.  Although Judge Tucker does not state the name of the document in her Order, she is quoting from the Court Order, entitled, “Notice of Reference to United States Magistrate Judge,” automatically generated at the time Plaintiff filed her Complaint officially placing her case in the “194” category. It states:

                        i.          Paragraph 1:  “Pursuant to General Order 08-05, the within action has been assigned to the calendar of the Honorable David O. Carter, U.S. District Judge. 

                        ii.         Paragraph 2:  “Pursuant to the provisions of General Order 05-07, the within action is referred to U.S. Magistrate Judge Sheri Pym, who is authorized to consider preliminary matters and conduct all further hearings as may be appropriate or necessary.

                        iii.        Paragraph 3:  “Thereafter, unless the Magistrate Judge determined that a trial by District Judge is required, the Magistrate Judge shall prepare a report and recommendation and file it with the Clerk of the Court together with proposed findings of fact and conclusions of law where necessary or appropriate, and a proposed written order or judgment, which shall be mailed to the parties. 

                        iv.        Paragraph 4:  “In the event the Magistrate Judge concludes that a trial by a District Judge is required, the Magistrate Judge shall so report to the District Judge.”

                        e.         Please note that Judge Tucker’s Order does not include Paragraphs 3 and 4, in her Order and for good reason.  Paragraphs 3 and 4 undermine her quoted statement.

                        f.          Judge Tucker’s quotes only, “Plaintiff was also given notice that, pursuant to General Order 05-07, the action was referred to United States Magistrate Judge Sheri Pym to ‘consider preliminary matters and conduct all further hearings as may be appropriate or necessary.'”  

                        g.         However, Judge Tucker’s quote does not include Paragraph 3, supra, specifically, that a Magistrate Judge has the power to decide whether “a trial by District Judge is required.”   Plaintiff asserts that this Court intentionally misrepresented to her that she was only assigned a magistrate for “non-dispositive pretrial proceedings.”  This statement is in excess of said representation.

                        h.         However, Judge Tucker’s quote does not include Paragraph 3, supra, specifically, that a Magistrate Judge has the power to “prepare a report and recommendation and file it with the Clerk of the Court.” Plaintiff asserts that this Court intentionally misrepresented to her that she was only assigned a magistrate for “non-dispositive pretrial proceedings.”  This statement is in excess of said representation.          

                        i.          However, Judge Tucker’s quote does not include Paragraph 3, supra, specifically, that a Magistrate Judge has the power to “prepare proposed findings of fact and conclusions of law where necessary or appropriate which shall be mailed to the parties.” Plaintiff asserts that this Court intentionally misrepresented to her that she was only assigned a magistrate for “non-dispositive pretrial proceedings.”  This statement is in excess of said representation.

                        j.          However, Judge Tucker’s quote does not include Paragraph 4, supra, specifically, that a Magistrate Judge has the power to “conclude that a trial by a District Judge is required and shall so report to the District Judge.”  Plaintiff asserts that this Court intentionally misrepresented to her that she was only assigned a magistrate for “non-dispositive pretrial proceedings.”  This statement is in excess of said representation.  

            48.       Judge Tucker’s Order states:

“Plaintiff then filed an ‘Opposition’ to the notice of reference to a United States Magistrate Judge.”  

[Footnote: This order does not purport to recite all requests and allegations made in Plaintiff’s filings, but only those that may be relevant to this motion.]

“For example, in her opposition to the reference of her case to a magistrate judge, Plaintiff also requested this Court to disqualify the judge hearing state court actions in which she is a party, vacate all of that judge’s orders, change venue to this Court, and suspend the powers of the state court judge and the Orange County Public Defender to act further in any matter involving Plaintiff. (Doc. 6.)”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          Plaintiff’s Opposition to a reference to a U.S. Magistrate Judge;

                                    ii.         Plaintiff’s [alleged] request to this Court to disqualify the judge hearing state court actions in which she is a party;

                                    iii.        Plaintiff’s [alleged] request to this Court to vacate all the orders of the judge hearing state court actions in which she is a party;

                                    iv.        Plaintiff’s [alleged] request to this Court to change venue of the state court actions to this Court;

                                    v.         Plaintiff’s [alleged] request to this Court to suspend the powers of the state court judge; and

                                    vi.        Plaintiff’s [alleged] request to this Court to suspend the powers of the Orange County Public Defender to act further in any matter involving Plaintiff.

                                    vii.       Reciting any other ‘requests and allegations made in Plaintiff’s filings’ when said references are outside her jurisdiction as a specially assigned neutral arbitrator on the subject of Judge Carter’s disqualification?

                                    viii.      The statement “but only those that may be relevant to her motion” when Judge Tucker’s entire Order is based on facts irrelevant to Plaintiff’s Motion to Disqualify Judge Carter in order to prejudice Plaintiff. 

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            49.       Judge Tucker’s Order states:

“In that opposition, she noted that she “does not oppose Magistrate Sheri Pym,” but rather opposes any reference to a magistrate judge. (Id. at 2.) She further stated, ‘Plaintiff respectfully submits her request to have her case brought directly before United States District Court Judge David O. Carter.”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          Plaintiff’s [alleged] “notation” that she did not oppose Magistrate Pym – rather opposed any reference to a magistrate judge.

                                    ii.         Plaintiff’s [alleged] statement that she “respectfully submits her request to have her case brought directly before United States District Court Judge David O. Carter.”

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            50.       Judge Tucker’s Order states:

“Plaintiff filed a First Amended Complaint on September 28, 2011, naming approximately 189 defendants. (Doc. 11.) Plaintiff thereafter requested leave to file a Second Amended Complaint (“SAC”). (Doc. 12.) Her request included a “Second Notice to the Court Withholding Consent to Referral to Magistrate Judge.” 

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          When Plaintiff filed a First Amended Complaint;

                                    ii.         The number of defendants named in Plaintiff’s First Amended Complaint;

                                    ii.         The fact that Plaintiff requested leave to file a Second Amended Complaint;

                                    iv.        The fact that Plaintiff’s request for leave to file a Second Amended Complaint included a “Second Notice to the Court Withholding Consent to Referral to Magistrate Judge.” 

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            51.       Judge Tucker’s Order states:

“Magistrate Judge Pym granted leave to amend and further explained that, as to Plaintiff’s non-consent to a magistrate judge, “the magistrate judge has not been assigned to conduct all proceedings in this case. Rather, pretrial proceedings have been referred to the magistrate judge in accordance with 28 U.S.C. § 636(b).” (Doc. 13.) Judge Carter then issued an order explicitly affirming Magistrate Judge Pym’s Order in all respects, including the referral. (Doc. 15.)

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          That Magistrate Judge Pym granted leave to amend;

                                    ii.         That Magistrate Pym [allegedly] explained the meaning of a nonconsensual referral to a Magistrate Judge;

                                    iii.        That Magistrate Pym [allegedly] stated that “the magistrate judge has not been assigned to conduct all proceedings in this case.”

                                    iv.         That Magistrate Pym [allegedly] stated that “pretrial proceedings have been referred to the magistrate judge in accordance with 28 U.S.C. § 636(b).” 

                                    v.         That Judge Carter [allegedly] issued an order explicitly affirming Magistrate Judge Pym’s Order in all respects, including the referral.

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            52.       Judge Tucker’s Order states:

“Two days later, she filed an Application to Request Leave to Correct Second Amended Complaint. (Doc. 17.) Although it is difficult to discern the entire basis for Plaintiff’s request, it appears she felt the need to file the SAC quickly because of statute of limitations issues, and in the process, and due to printer problems “did not include a complete record of facts, the claims for relief, the prayer for relief, nor did she have sufficient time to check for typographical or grammatical errors.”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          That Plaintiff [allegedly] filed an Application to Request Leave to Correct Second Amended Complaint two days later.

                                    ii.         That is was difficult for Judge Tucker to discern the entire basis for Plaintiff’s request.

                                    iii.        That it appeared to Judge Tucker that Plaintiff [allegedly] felt the need to file the SAC quickly because of statute of limitations issues.

                                    iv.        That it appeared to Judge Tucker that Plaintiff [allegedly] had printer problems.

                                    v.         That it appeared to Judge Tucker that Plaintiff [allegedly] “did not include a complete record of facts.”

                                    vi.        That it appeared to Judge Tucker that Plaintiff [allegedly] “did not include claims for relief.”

                                    vii.       That it appeared to Judge Tucker that Plaintiff [allegedly] “did not include a prayer for relief.”

                                    viii.      That it appeared to Judge Tucker that Plaintiff [allegedly] “did not have sufficient time to check for typographical or grammatical errors.”

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law.          

            53.       Judge Tucker’s Order states:

“Based on Plaintiff’s representations regarding time constraints and printer problems, Magistrate Judge Pym granted Plaintiff leave to file a corrected version of the SAC. However, Judge Pym also made clear that the court’s order did not operate to extend any statute of limitations, and in fact, explained that the court did not have sufficient information as to the relevant statute of limitations to make such a determination on an ex parte basis. (Doc. 18.)

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          That Magistrate Judge Pym [allegedly] granted Plaintiff leave to file a corrected version of the SAC based on Plaintiff’s representations regarding time constraints and printer problems.

                                    ii.         That Magistrate Judge Pym [allegedly] made clear that the court’s order did not operate to extend any statute of limitations;

                                    iii.        That Magistrate Judge Pym [allegedly] explained that the court did not have sufficient information as to the relevant statute of limitations to make such a determination on an ex parte basis.

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law.          

            54.       Judge Tucker’s Order states:

“On November 14, 2011, Plaintiff filed her Corrected SAC. (Doc. 20.) In the Corrected SAC, Plaintiff names 239 defendants, and, as relevant to this motion, adds as defendants United States Magistrate Judge Pym and United States District Judge Cormac Carney. “

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          When Plaintiff filed her Corrected SAC;

                                    ii.         The number of defendants [allegedly] named in the Corrected SAC;

                                    iii.        That Plaintiff added United States Magistrate Judge Pym to her Corrected SAC;

                                    iv.        That Plaintiff added United States District Judge Cormac Carney to her Corrected SAC;

                                    v.         That the fact that Plaintiff added Magistrate Judge Pym as a defendant to the Corrected SAC was [allegedly] relevant to Plaintiff’s Motion to Disqualify Judge Carter;

                                    vi.        That the fact that Plaintiff added United States District Judge Cormac Carney as a defendant to the Corrected SAC was [allegedly] relevant to the Plaintiff’s Motion to Disqualify Judge Carter.

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            55.       Judge Tucker’s Order states:

“The allegation as to Judge Pym is that this action was assigned to her because of Plaintiff’s pro se status. The allegations as to Judge Carney are based on his orders remanding two state court cases that Plaintiff, as defendant in those cases, had previously removed to federal court.”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          Judge Tucker’s personal opinion based on no fact whatsoever, that “the allegation as to Judge Pym is that this action was assigned to her because of Plaintiff’s pro se status.”

                                    ii.         Judge Tucker’s personal opinion based on no fact whatsoever, that “the allegations as to Judge Carney are based on his orders remanding two state court cases.”

                                    iii.        Judge Tucker’s personal opinion based on no fact whatsoever, that “Plaintiff, as defendant in those cases, had previously removed to federal court.”

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            56.       Judge Tucker’s Order states:

“On November 22, 2011, Judge Carter denied a request by Plaintiff for a preliminary injunction. (Doc. 22.) On November 28, 2011, Plaintiff filed a 24-page document requesting leave to amend the Corrected SAC, declaratory judgment, and an explanation of the basis of adverse findings. (Doc. 23.) Judge Carter denied her request on December 2, 2011. (Doc. 24.)”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          That on November 22, 2011, Judge Carter [allegedly] denied a request by Plaintiff for a preliminary injunction.

                                    ii.         That on November 28, 2011, Plaintiff [allegedly] filed a 24-page document requesting leave to amend the Corrected SAC, declaratory judgment, and an explanation of the basis of adverse findings. (Doc. 23.)

                                    iii.        That on December 2, 2011, Judge Carter [allegedly] denied Plaintiff’s request.

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            57.       Judge Tucker’s Order states:

“On December 6, 2011  Plaintiff filed an “Amended Request” seeking the same relief sought in her November 28, 2011, request. (Doc. 25.) One week later, Plaintiff filed the instant motion seeking the disqualification of Judge Carter. In her Motion, Plaintiff objects to Judge Carter’s “adverse actions” against her. (Motion at 3.) These actions appear to consist of the reference of the action to a magistrate judge for preliminary matters (id. at 2-3), and the denial of her request for leave to amend her Corrected SAC.”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          That on December 6, 2011, Plaintiff [allegedly] filed an “Amended Request” seeking the same relief sought in her November 28, 2011, request.

                                    ii.         That one week later, Plaintiff [allegedly] filed the instant motion seeking the disqualification of Judge Carter.

                                    iii.        That in Plaintiff Motion’s she [allegedly] objects to Judge Carter’s “adverse actions” against her.

                                    iv.        That based on Judge Tucker’s personal opinion based on no fact whatsoever, “these actions appear to consist of the reference of the action to a magistrate judge for preliminary matters.”

                                    v.         That based on Judge Tucker’s personal opinion based on no fact whatsoever, “these actions appear to consist of the denial of her request for leave to amend her Corrected SAC.”

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            58.       Judge Tucker’s Order states:

“Plaintiff further alleges that Judge Carter’s rulings were based on his friendship with Judge Carney, whom she had added as a defendant to the Corrected SAC.  She attaches an article published seven years ago in which Judge Carney purportedly stated that he jogs at lunchtime with his “good friend and colleague” Judge Carter.”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          That based on Judge Tucker’s personal opinion based on no fact whatsoever, “Plaintiff further alleges that Judge Carter’s rulings were based on his friendship with Judge Carney, whom she had added as a defendant to the Corrected SAC.”

                                    ii.         That Plaintiff attached an article [based on Judge Tucker’s personal opinion based on no fact whatsoever ] was published seven years ago in which Judge Carney purportedly stated that he jogs at lunchtime with his “good friend and colleague” Judge Carter.”

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            59.       Judge Tucker’s Order states:

“There are two procedural avenues by which a party may seek disqualification of a judge before whom a matter is pending.

“First, pursuant to 28 U.S.C. § 144, a party may file a ‘timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party.’ 28 U.S.C. § 144.   

“Once a timely and sufficient affidavit has been filed, the disqualification motion is decided by another district judge. United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). 

“Second, 28 U.S.C. §455 requires a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned” and in any proceeding in which “he has a personal bias or prejudice concerning a party …” 28 U.S.C. §§455(a), (b)(1).  

“The Ninth Circuit has held that “[u]nder both recusal statutes, the substantive standard is whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (citation and internal quotation marks omitted); see also Sibla, 624 F.2d at 867 (‘the substantive test for bias or prejudice is identical in sections 144 and 455’).”

                        a.         Section 144 conditions disqualification on the moving party filing a sufficient affidavit. If no affidavit is filed, disqualification will be denied.  However, in the landmark case, Berger v. United States,[13] the Supreme Court interpreted the statutory predecessor to §144 to require that the challenged judge accept all facts alleged in the affidavit as true, and not pass on the truth of the alleged facts.  Id.

                        b.         Rather, the judge’s role was limited to evaluating the facial sufficiency of the affidavit for the purpose of determining whether a reasonable person could find “fair support” for the charge that the judge was biased against the movant or in favor of another party. Id. at 33–34.

                        c.         Just because Plaintiff didn’t lodge a separate document entitled, “Affidavit,” does not mean that her claims were not sufficiently pled within the Motion to Disqualify. 

                        d.         Please note that Judge Tucker leaves out the fact that §455, on its own, is an objective standard,” in other words an “unbiased, unprejudiced, neutral, detached, and impartial standard.”  This is very important to this argument because the “substantive” standard only applies for “practical” purposes.

                        e.         Also important is the fact that Pesnell cites another Ninth Circuit ruling in United States v. Hernandez [14] holding “The government bears the burden to show that the disqualification error set forth in the motion to disqualify was harmless.”  The due process clause of the Fourteenth Amendment guarantees a trial before an impartial court, and the denial of that right can never be harmless error.  “A fair trial in a fair tribunal is a basic requirement of due process.” See, United States Supreme Court decisions:  In re Murchison, 349 U.S. 133, 136 (1955); Withrow v. Larkin, 421 U.S. 35 (1975); Ward v. Village of Monroeville, 409 U.S. 57 (1972).

                        f.          Please note that the above quote from Judge Tucker’s Order intentionally omits United States v. Hernandez by her words, “citation and internal quotation marks omitted,” because her argument has no merit.                         

                        g.         Plaintiff also posits that one of the primary purposes of the recusal statute is to instill public confidence in the impartiality of all judges, to wit:

“Deference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn on their acting without fear or favor.  Although judges should be independent, they must comply with the law and should comply with this Code. Adherence to this responsibility helps to maintain public confidence in the impartiality of the judiciary. Conversely, violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.”  [15]

                        h.         Nonetheless, here, Judge Tucker agrees with the primary thesis of Plaintiff’s Motion to Disqualify Judge Carter, i.e., that the standard to determine whether a judge should recuse himself is: “Whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.”  If Judge Tucker agrees with Plaintiff’s primary thesis, why is she denying Plaintiff’s Motion? 

                        i.          “Of all the facts” pertains to the facts set forth in Plaintiff’s primary three arguments:  “A judge should disqualify himself in a proceeding in which (1) his impartiality might reasonably be questioned, including but not limited to (2) instances where he has a personal bias or prejudice concerning a party, or (3) personal knowledge of disputed evidentiary facts concerning the proceeding.”

                        j.          The first element, “…in which his impartiality might reasonably be questioned…” was satisfied by documentary evidence attached to Plaintiff’s motion.                           

                        k.         The second element, “…where he has a personal bias or prejudice concerning a party…” was satisfied in “Exhibit 1” of Plaintiff’s motion, namely, a published interview (not hearsay article as Judge Tucker alleges) of Judge Carney wherein he described Judge Carter as good friend and jogging partner.  It matters not the date of the article as the same “reasonable person” would not be privy to the current status of their relationship, only the facts as they appeared in 2004.

                        l.          The third element, “…where he has personal knowledge of disputed evidentiary facts concerning the proceeding…” was satisfied in “Exhibit 2” of Plaintiff’s motion, namely a 2009 email verifying that Judge Carter’s (and Judge Tucker’s) Courtroom Deputy, Dwayne Roberts, was personally involved in events that form the basis of Plaintiff’s claims.  Judge Tucker must have believed this argument had substantial merit as she failed entirely to even address it in her December 21, 2011 Order.

                        m.        On January 11, 2011, the United States Court of Appeal affirmed Judge Carter’s ruling in United States v. Stephen Lindsey, stating:

            “The district court did not abuse its discretion in denying the Lindseys’ motion for recusal because the Lindseys failed to set forth facts demonstrating that the judge had a personal bias or prejudice that stemmed from an extrajudicial source and that was not based solely on information gained in the course of the proceedings.”

                        n.         Plaintiff’s facts stem from an extrajudicial source and are not based solely on information gained in the course of proceedings, because there has not been any “proceedings” in Plaintiff’s case.

            60.       Judge Tucker’s Order states:

“Although Plaintiff’s Motion only discusses the application of 28 U.S.C. § 455 (Motion at 7-8), Plaintiff states that she seeks “An Order For The Immediate Disqualification of U.S. District Court Judge David O. Carter Pursuant To 28 U.S.C. §§455 & §144 [sic].”

                        a.         Section 144 states: “It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”  Since Plaintiff is a pro se litigant, she submitted the Declaration as such.   Plaintiff also presented sufficient information within the Motion to serve the purposes of Section 144.

                        b.         “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.” [16]

                        c.         Here again, Section 144 recusal was not intended to be used as a tool of the litigant to “disqualify” the judge; rather, a guiding tool for the federal judge to be self-recusing, because: “Only the individual judge knows fully his own thoughts and feelings and the complete context of facts alleged.” [17]

                        d.         Judge Tucker erroneously cites Azhocar, 581 F.2d at 738, a criminal case with regard to procedural requirements, clearly not applicable.

                        e.         However, in Berger, the U.S. Supreme Court set forth three requirements to render an affidavit legally sufficient.  It must state facts which if true fairly support the allegation that bias or prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision on the merits. The focus is not only on the source of the facts and their distorting effect on a decision on the merits, as required by Grinnell, but also on (3) the substantiality of the support given by these facts to the allegation of bias, as required by Berger.  

                        f.          Plaintiff more than adequately satisfied the Berger test in her December 13, 2011 Motion to Disqualify Judge Carter satisfied by documentary evidence attached to Plaintiff’s motion:

                                    i.          “Exhibit 1,” namely, a published interview of Judge Carney in a trade association newsletter in which Judge Carney described Judge Carter as good friend and jogging partner.  It matters not the date of the article as the “reasonable person” would not be privy to the current status of their relationship, only the facts as they appeared in 2004. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

                                    ii.         “Exhibit 2,” namely, a 2009 email identifying Judge Carter’s Courtroom Deputy, Dwayne Roberts, as a participant in a fraudulent scheme against Plaintiff and in favor of another party in this action, UDR, Inc.  The events surrounding this fraudulent scheme form the foundation of Plaintiff’s claims and accordingly, Mr. Roberts was named in the August 16, 2011 Complaint as a defendant. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

            61.       Judge Tucker’s Order states:

“Later in her Motion, she reiterates that she seeks immediate disqualification of Judge Carter pursuant to 28 U.S.C. § 455, 28 U.S.C. § 144, and the Judicial Code of Conduct. (Id. at 13.) Therefore, it appears that by invoking § 144, Plaintiff “desir[es] referral to a second judge . . . .” Sibla, 624 F.2d at 868.”   

“[Footnote 2: The Court notes that by filing this Motion and by citing § 455, Plaintiff “prompt[ed] Judge Carter to determine independently whether all of the circumstances call for recusal under the self-enforcing provisions of section 455(a) & (b)(1) . . . .” Sibla, 624 F.2d at 868. Because the substantive test for bias or prejudice under § 455 and § 144 is identical, it does not appear that there is any basis for recusal under § 455.]”

                        a.         Section 144 states: “It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”  Since Plaintiff is a pro se litigant, she submitted the Declaration as such.   Plaintiff also presented sufficient information within the Motion to serve the purposes of Section 144.

                        b.         “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.” [18]

                        c.         Here again, Section 144 recusal was not intended to be used as a tool of the litigant to “disqualify” the judge; rather, a guiding tool for the federal judge to be self-recusing, because: “Only the individual judge knows fully his own thoughts and feelings and the complete context of facts alleged.” [19]

                        d.         Judge Tucker erroneously cites Azhocar, 581 F.2d at 738, a criminal case with regard to procedural requirements, clearly not applicable.

                        e.         However, in Berger, the U.S. Supreme Court set forth three requirements to render an affidavit legally sufficient.  It must state facts which if true fairly support the allegation that bias or prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision on the merits. The focus is not only on the source of the facts and their distorting effect on a decision on the merits, as required by Grinnell, but also on (3) the substantiality of the support given by these facts to the allegation of bias, as required by Berger.  

                        f.          Plaintiff more than adequately satisfied the Berger test in her December 13, 2011 Motion to Disqualify Judge Carter satisfied by documentary evidence attached to Plaintiff’s motion:

                                    i.          “Exhibit 1,” namely, a published interview of Judge Carney in a trade association newsletter in which Judge Carney described Judge Carter as good friend and jogging partner.  It matters not the date of the article as the “reasonable person” would not be privy to the current status of their relationship, only the facts as they appeared in 2004. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

                                    ii.         “Exhibit 2,” namely, a 2009 email identifying Judge Carter’s Courtroom Deputy, Dwayne Roberts, as a participant in a fraudulent scheme against Plaintiff and in favor of another party in this action, UDR, Inc.  The events surrounding this fraudulent scheme form the foundation of Plaintiff’s claims and accordingly, Mr. Roberts was named in the August 16, 2011 Complaint as a defendant. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

            62.       Judge Tucker’s Order states:

“To the extent Plaintiff intends to bring this motion pursuant to 28 U.S.C. § 144, it fails. She has not made and filed a “timely and sufficient affidavit that the judge before

whom the matter is pending has a personal bias or prejudice against [her] or in favor of any adverse party” as required by § 144. See 28 U.S.C. § 144.”

                        a.         Section 144 states: “It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”  Since Plaintiff is a pro se litigant, she submitted the Declaration as such.   Plaintiff also presented sufficient information within the Motion to serve the purposes of Section 144.

                        b.         “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.” [20]

                        c.         Here again, Section 144 recusal was not intended to be used as a tool of the litigant to “disqualify” the judge; rather, a guiding tool for the federal judge to be self-recusing, because: “Only the individual judge knows fully his own thoughts and feelings and the complete context of facts alleged.” [21]

                        d.         Judge Tucker erroneously cites Azhocar, 581 F.2d at 738, a criminal case with regard to procedural requirements, clearly not applicable.

                        e.         However, in Berger, the U.S. Supreme Court set forth three requirements to render an affidavit legally sufficient.  It must state facts which if true fairly support the allegation that bias or prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision on the merits. The focus is not only on the source of the facts and their distorting effect on a decision on the merits, as required by Grinnell, but also on (3) the substantiality of the support given by these facts to the allegation of bias, as required by Berger.  

                        f.          Plaintiff more than adequately satisfied the Berger test in her December 13, 2011 Motion to Disqualify Judge Carter satisfied by documentary evidence attached to Plaintiff’s motion:

                                    i.          “Exhibit 1,” namely, a published interview of Judge Carney in a trade association newsletter in which Judge Carney described Judge Carter as good friend and jogging partner.  It matters not the date of the article as the “reasonable person” would not be privy to the current status of their relationship, only the facts as they appeared in 2004. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

                                    ii.         “Exhibit 2,” namely, a 2009 email identifying Judge Carter’s Courtroom Deputy, Dwayne Roberts, as a participant in a fraudulent scheme against Plaintiff and in favor of another party in this action, UDR, Inc.  The events surrounding this fraudulent scheme form the foundation of Plaintiff’s claims and accordingly, Mr. Roberts was named in the August 16, 2011 Complaint as a defendant. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

            63.       Judge Tucker’s Order states:

“The affidavit “must state facts which if true fairly support the allegation that bias or prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision on the merits. The focus is not only on the source of the facts and their distorting effect on a decision on the merits . . . but also on (3) the substantiality of the support given by these facts to the allegation of bias.” United States v. Azhocar, 581 F.2d 735, 739-40 (9th Cir. 1978).”

                        a.         Section 144 states: “It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”  Since Plaintiff is a pro se litigant, she submitted the Declaration as such.   Plaintiff also presented sufficient information within the Motion to serve the purposes of Section 144.

                        b.         “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.” [22]

                        c.         Here again, Section 144 recusal was not intended to be used as a tool of the litigant to “disqualify” the judge; rather, a guiding tool for the federal judge to be self-recusing, because: “Only the individual judge knows fully his own thoughts and feelings and the complete context of facts alleged.” [23]

                        d.         Judge Tucker erroneously cites Azhocar, 581 F.2d at 738, a criminal case with regard to procedural requirements, clearly not applicable.

                        e.         However, in Berger, the U.S. Supreme Court set forth three requirements to render an affidavit legally sufficient.  It must state facts which if true fairly support the allegation that bias or prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision on the merits. The focus is not only on the source of the facts and their distorting effect on a decision on the merits, as required by Grinnell, but also on (3) the substantiality of the support given by these facts to the allegation of bias, as required by Berger.  

                        f.          Plaintiff more than adequately satisfied the Berger test in her December 13, 2011 Motion to Disqualify Judge Carter satisfied by documentary evidence attached to Plaintiff’s motion:

                                    i.          “Exhibit 1,” namely, a published interview of Judge Carney in a trade association newsletter in which Judge Carney described Judge Carter as good friend and jogging partner.  It matters not the date of the article as the “reasonable person” would not be privy to the current status of their relationship, only the facts as they appeared in 2004. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

                                    ii.         “Exhibit 2,” namely, a 2009 email identifying Judge Carter’s Courtroom Deputy, Dwayne Roberts, as a participant in a fraudulent scheme against Plaintiff and in favor of another party in this action, UDR, Inc.  The events surrounding this fraudulent scheme form the foundation of Plaintiff’s claims and accordingly, Mr. Roberts was named in the August 16, 2011 Complaint as a defendant. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

            64.       Judge Tucker’s Order states:

“Plaintiff simply attaches a declaration which includes the sentence, “I bring in good faith and in full consideration the within request for the immediate disqualification of U.S. District Court Judge David O. Carter.” (Motion at 33.) Her “failure to follow . . . procedural requirements” defeats any claim of bias under § 144. Azhocar, 581 F.2d at 738.”

                        a.         Section 144 states: “It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”  Since Plaintiff is a pro se litigant, she submitted the Declaration as such.   Plaintiff also presented sufficient information within the Motion to serve the purposes of Section 144.

                        b.         “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.” [24]

                        c.         Here again, Section 144 recusal was not intended to be used as a tool of the litigant to “disqualify” the judge; rather, a guiding tool for the federal judge to be self-recusing, because: “Only the individual judge knows fully his own thoughts and feelings and the complete context of facts alleged.” [25]

                        d.         Judge Tucker erroneously cites Azhocar, 581 F.2d at 738, a criminal case with regard to procedural requirements, clearly not applicable.

                        e.         However, in Berger, the U.S. Supreme Court set forth three requirements to render an affidavit legally sufficient.  It must state facts which if true fairly support the allegation that bias or prejudice stemming from (1) an extrajudicial source (2) may prevent a fair decision on the merits. The focus is not only on the source of the facts and their distorting effect on a decision on the merits, as required by Grinnell, but also on (3) the substantiality of the support given by these facts to the allegation of bias, as required by Berger.   

                        f.          Plaintiff more than adequately satisfied the Berger test in her December 13, 2011 Motion to Disqualify Judge Carter satisfied by documentary evidence attached to Plaintiff’s motion:

                                    a.         “Exhibit 1,” namely, a published interview of Judge Carney in a trade association newsletter in which Judge Carney described Judge Carter as good friend and jogging partner.  It matters not the date of the article as the “reasonable person” would not be privy to the current status of their relationship, only the facts as they appeared in 2004. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

                                    b.         “Exhibit 2,” namely, a 2009 email identifying Judge Carter’s Courtroom Deputy, Dwayne Roberts, as a participant in a fraudulent scheme against Plaintiff and in favor of another party in this action, UDR, Inc.  The events surrounding this fraudulent scheme form the foundation of Plaintiff’s claims and accordingly, Mr. Roberts was named in the August 16, 2011 Complaint as a defendant. A reasonable person with knowledge of these facts might question Judge Carter’s ability to be impartial.

            65.       Judge Tucker’s Order states:

“However, even if the claims had been included in a sufficient affidavit, there would be no basis for disqualification, as a reasonable person with knowledge of all the facts would not conclude that the assigned district court judge’s impartiality might reasonably be questioned. Instructive in this regard is Canon (C)(1) of the Code of Conduct for United States Judges.  This Canon closely tracks the language of § 455, and requires recusal when, among other things, “the judge’s impartiality might reasonably be questioned.”

                        a.         Judge Tucker’s argument runs in a circle here, to wit:

                                    i.          First she says that “even if the claims had been included in a sufficient affidavit, there would be no basis for disqualification, as a reasonable person with knowledge of all the facts would not conclude that the assigned district court judge’s impartiality might reasonably be questioned.”  However, she provides no basis for her claim.

                                    ii.         Next, she comes full circle back to Plaintiff’s own argument, to wit, “Instructive in this regard is Canon (C)(1) of the Code of Conduct for United States Judges.  This Canon closely tracks the language of § 455, and requires recusal when, among other things, “the judge’s impartiality might reasonably be questioned.”

            66.       Judge Tucker’s Order states:

“Code of Conduct for United States Judges, Canon (C)(1). The Advisory Opinion of the Committee on Codes of Conduct states the following in Opinion 103: If one or more of an assigned judge’s judicial colleagues—but not the assigned judge—is named as a defendant in a civil action, the assigned judge need not automatically recuse from the case . . . . Whether it would be appropriate for a judge to handle a matter naming judicial colleagues depends on the surrounding circumstances, including the factors identified above.”

                        a.         First of all, the Code of Conduct for United States Judges comprises Canon Nos. 1-5, none of which begin with a (C).  Judge Tucker cites “Code of Conduct for United States Judges, Canon (C)(1),” therefore Plaintiff cannot address that particular point.

                        b.         However, Advisory Opinion No. 103 is entitled, “Disqualification Based on Harassing Claims Against Judge.”  This only applies to attorneys or litigants that file repeated complaints against a judge.  Plaintiff is simply using the court system to the best of her ability.

                        c.         Advisory Opinion No. 103 states:

“Recusal is also not automatically warranted when an attorney has filed a complaint against the judge before whom the attorney is appearing.

“In such an instance, the judge must determine whether the judge holds a personal bias or prejudice against the attorney, or whether the circumstances would create a reasonable question of the judge’s impartiality.”

                        d.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            67.       Judge Tucker’s Order states:

“In typical harassing litigation, a claim against a judge is barred by the doctrine of judicial immunity, and the complaint is subject to prompt dismissal on judicial immunity or other grounds. Review of a complaint against a judicial colleague where the litigation is patently frivolous or judicial immunity is plainly applicable will not ordinarily give rise to a reasonable basis to question the assigned judge’s impartiality, and disqualification would rarely be appropriate.”

                        a.         Judge Tucker once again quotes a case without stating its citation, and once again, it is clear why.  Judge Tucker is quoting a U.S. Supreme Court case, Pulliam v. Allen 466 U.S. 522.  She lifts out of context the above passage.

                        b.         However, Pulliam v. Allen, also states:

“The history of judicial immunity in the United States is fully consistent with the common-law experience. There never has been a rule of absolute judicial immunity from prospective relief, and there is no evidence that the absence of that immunity has had a chilling effect on judicial independence.  

“Limitations on obtaining equitable relief serve to curtail or prevent harassment of judges through suits against them by disgruntled litigants.

“Collateral injunctive relief against a judge, particularly when that relief is available through §1983, also raises a concern relating to the proper functioning of federal-state relations, but that concern has been addressed directly as a matter of comity and federalism, independent of principles of judicial immunity.

“While there is a need for restraint by federal courts called upon to enjoin actions of state judicial officers, there is no support for a conclusion that Congress intended to limit the injunctive relief available under §1983 in a way that would prevent federal injunctive relief against a state judge.  

“Rather, Congress intended § 1983 to be an independent protection for federal rights, and there is nothing to suggest that Congress intended to expand the common-law doctrine of judicial immunity to insulate state judges completely from federal collateral review. Pp. 536-543.” 

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            68.       Judge Tucker’s Order states:

“The Opinion’s reference to “harassing litigation” is a reference to complaints filed by a party against a judge or judges “in retaliation for unfavorable judicial decisions or setbacks in their legal proceedings.” A review of the Corrected SAC leads this Court to the conclusion that the claim against Judge Carney is based solely on his remand decisions in two state court actions that Plaintiff attempted to remove to federal court.”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          That based on Judge Tucker’s personal opinion based on no fact whatsoever, ” The Opinion’s reference to “harassing litigation” is a reference to complaints filed by a party against a judge or judges “in retaliation for unfavorable judicial decisions or setbacks in their legal proceedings.”

                                    ii.         That based on Judge Tucker’s personal opinion based on no fact whatsoever, “A review of the Corrected SAC leads this Court to the conclusion that the claim against Judge Carney is based solely on his remand decisions in two state court actions that Plaintiff attempted to remove to federal court.”

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law. 

            69.       Judge Tucker’s Order states:

The naming of Judge Carney appears to be simply part of Plaintiff’s pattern to name as a defendant any and every judge who issues an unfavorable ruling against her. The fact that Plaintiff has named Judge Carney as a defendant does not require recusal of Judge Carter. Plaintiff’s reference to a hearsay article from seven years ago does not change the analysis.”

                        a.         Plaintiff questions the relevance of the following statements to Judge Tucker’s special assignment of evaluating a motion to disqualify U.S. District Court Judge David O. Carter based on 28 U.S.C. §455(b)(1), Title 28 U.S.C. §144, and Code of Judicial Conduct, Canon 3(C)(1)(a):

                                    i.          That based on Judge Tucker’s personal opinion based on no fact whatsoever, “The naming of Judge Carney appears to be simply part of Plaintiff’s pattern to name as a defendant any and every judge who issues an unfavorable ruling against her.”

                                    ii.         That based on Judge Tucker’s personal opinion based on no fact whatsoever, “The fact that Plaintiff has named Judge Carney as a defendant does not require recusal of Judge Carter.”

                                    iii.        That based on Judge Tucker’s personal opinion based on no fact whatsoever, ” Plaintiff’s reference to a hearsay article from seven years ago does not change the analysis.” A published person-to-person interview is not a “hearsay article.”  The Federal Rules of Evidence generally defines hearsay as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  Since Judge Carney (here, declarant) made all the statements and they were published in a trade association newsletter, Plaintiff cannot conceive how Judge Tucker could declare the statements made as “hearsay.”

                        b.         The only task assigned to Judge Tucker was to evaluate whether Judge Carter’s impartiality could be questioned based on (a) his personal relationship with a party to the action, Judge Carney; and (b) his access to disputed evidentiary facts about the case from his (and her) Courtroom Deputy, Dwayne Roberts. Nonetheless, Judge Tucker not only entered an Order without jurisdiction to do so but entered an Order that exceeded her special assignment and contained misrepresentations of fact and law.         

            70.       Judge Tucker’s Order states:

Conclusion: For the foregoing reasons, Plaintiff’s Motion for Disqualification is DENIED.  Initials of Preparer: __dr___.

                        a.         The preparer here is Dwayne Roberts, the subject of Plaintiff’s second primary argument, supra.  He is the Courtroom Deputy for both Judge Carter and Judge Tucker.

                        b.         As Mr. Roberts has personal knowledge of disputed evidentiary issues, both Judge Carter and Judge Tucker must recuse themselves.

V.

Judge Carter Was Required By Law to

Recuse HIMSELF pursuant to 28 U.S.C. §455

            71.       Congress never intended Section 455 to be used by litigants seeking disqualification of a federal judge; rather, it was established as a guide for federal judges to determine whether self-recusal was appropriate. Section 455 has Judicial Code of Conduct counterparts that assist litigants in seeking disqualification of a federal judge who refuses to voluntarily recuse himself. 

            72.       “Recusal under Section 455 is self-executing; a party need not file affidavits in support of recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances.” [26]

            73.       Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals further stated that “We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed.” [27]

            74.       Judges do not have discretion not to disqualify themselves. By law, they are bound to follow the law. Should a judge not disqualify himself as required by law, then the judge has given another example of his “appearance of partiality” which, possibly, further disqualifies the judge.

            75.       Should another judge not accept the disqualification of the judge, then the second judge has evidenced an “appearance of partiality” and has possibly disqualified himself/herself.

            76.       Should a judge not disqualify himself, then the judge is in violation of the Due Process Clause of the U.S. Constitution. [28] (“The right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause.”).

            77.       Federal law requires the automatic disqualification of a Federal judge under certain circumstances.  In 1994, the U.S. Supreme Court held that “Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality. If a judge’s attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified.” [29]

            78.       Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality. What matters is not the reality of bias or prejudice but its appearance.  [30]

            79.       Federal judges in United States v. Balistrieri [31], held that 28 U.S.C. §455(a) is “not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process… it is directed against the appearance of partiality, whether or not the judge is actually biased.” 

VI.

Judge Tucker is Disqualified as a Matter of Law 

            80.       Judge Tucker’s December 22, 2011 Order reveals her personal bias and prejudice against Plaintiff, personal knowledge of disputed evidentiary facts concerning the proceeding, and inability to be impartial.

            81.       Judge Tucker December 21, 2011 Order demonstrated more than an intangible bias, it is deeply-rooted in her desire to protect third parties at the expense of her duty under Article III.  Judge Tucker has perverted her role as a special assignment neutral arbitrator to cast Plaintiff in a false light to advance the interests of these third parties and as such, are as culpable as they are.

            82.       Judge Tucker’s disturbing Order in which she accuses Plaintiff of harassing judges and of demonstrating a “pattern to name as a defendant any and every judge who issues an unfavorable ruling against her,” personifies her embroilment, not Plaintiff’s misconduct.       

            87.       In Liteky, et al. v. United States,  the U.S. Supreme Court held:

“Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.

“Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”

            88.       Judge Tucker is embroiled in this action in light of her relationship with Orange County Superior Court Judge Franz E. Miller.  Judge Tucker and Judge Miller were appointed to the Orange County Superior Court on the same day in 2002 by Governor Gray Davis.  In 2002, Tom Layton, California State Bar Investigator was on the Judicial Selection Committee of Governor Gray Davis.

            89.       Judge Tucker is embroiled in this action in light of her relationship with the California State Bar including but not limited to:

                        a.         her past financial interest in becoming a superior court judge;

                        b.         a district-wide edict from Chief Judge Audrey Collins to never rule against the California State Bar, and

                        c.         her present relationship with the California State Bar.

            90.       Judge Tucker is embroiled in this action in light of her past association with the Orange County Superior Court, Judge Franz Miller, and her present financial interest in protecting her association with the  Orange County Superior Court,

            91.       Judge Tucker is embroiled in this action in light of her past association with Richard Fine and the California State Bar.

            92.       Judge Tucker is embroiled in this action in light of her relationship with Tom Layton, Investigator of the California State Bar who sat on Governor Gray Davis’s Judicial Selection Committee in 2002, the same year Judge Tucker was appointed to the Orange County Superior Court. 

VIII.

Conclusion 

            93.       Last year, the Federal Judicial Center wrote “Judicial Disqualification: An Analysis of Federal Law” that begins:

“For centuries, impartiality has been a defining feature of the Anglo-American judge’s role in the administration of justice. The reason is clear: in a constitutional order grounded in the rule of law, it is imperative that judges make decisions according to law, unclouded by personal bias or conflicts of interest.”

            94.       However, instead of constitutional orders grounded in the rule of law, Plaintiff has been subjected to unconstitutional orders grounded in the rule of protecting the California State Bar and other judges.  

            95.       Instead of Plaintiff bringing her substantial constitutional issues before judges making decisions according to the law, they are making their decisions according to politics.

            96.       Instead of making decisions unclouded by personal bias or conflicts of interest, decisions are being made influenced by personal agendas, belittling bias, and flagrant conflicts of interest. 

            97.       And finally, instead of this Court holding up to Plaintiff the value of impartiality as the defining feature of the Anglo-American judge’s role in the administration of justice; this Court holds up to Plaintiff its utter disdain for her and ridicules her in their written Orders advancing the very claims Plaintiff brought to this Court for redress in her August 16, 2011 Section 1983 Civil Rights Complaint.

            98.       What Plaintiff finds the most troubling is that the above quote and its accompanying treatise was written by Judge David O. Carter, along with seven other federal judges across the country that make up the Board of Directors of the Federal Judicial Center.  All, including Judge Carter, claim they believe in those ideals.  To date, that has not been Plaintiff’s experience.

            99.       For example, in Judge Carter’s December 2, 2011 Order where he denied, inter alia, Plaintiff’s request for leave to amend her Complaint, Judge Carter gave no explanation and when Plaintiff requested an explanation of adverse findings, Judge Carter denied same.  In Holmes v. Grubman the U.S. Court of Appeal held:

“A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” [32]  However, “An abuse of discretion may be found if the court simply denies the motion to amend without offering any explanation.” [33] 

            100.     That sort of misconduct is unconscionable for many reasons including:

                        a.         Plaintiff is a pro se litigant with significant and complex Section 1983 issues. 

                        b.         Her requests for effective assistance of counsel has been repeatedly denied by this Court. 

                        c.         She cannot obtain counsel because one of her primary defendants is the California State Bar. 

                        d.         This Court has specific instructions never to rule against the California State Bar. 

            101.     Nonetheless, Plaintiff perseveres and pursues her claims pro se.  As such, this Court is mandated to shed itself of dilatory motives, bias, prejudice and seedy tactical advantages.  It is so written in federal case law ad infinitum.  For example,

                        a.         “… the right to file a lawsuit pro se is one of the most important rights under the constitution and laws.” [34]

                        b.         “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.” [35]

                        c.         “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.” [36]

                        d.         “… a pro se complaint requires a less stringent reading than one drafted by a lawyer.” [37]

                        e.         “There can be no sanction or penalty imposed upon one because of his exercise of Constitutional Rights.” [38]

                        e.         “Due to sloth, inattention or desire to seize tactical advantage, lawyers have long engaged in dilatory practices… the glacial pace of much litigation breeds frustration with the Federal Courts and ultimately, disrespect for the law.” [39]

Dated: December 28, 2011                                              

Respectfully submitted,

Erin K. Baldwin

Plaintiff, Pro Se


[1]               See, Sigsworth v. City of Aurora, 487 F.3d 506, 512 (7th Cir. 2007); National Ecological Fund. v. Alexander, 496 F.3d 466, 477 (6th Cir. 2007).

[2]               This fact was misrepresented in Judge Tucker’s Order as a “hearsay article,” rather than its proper description, a published interview.” 

[3]               Judge Tucker found Plaintiff’s argument defective because the article was published in 2004.

[4]     Boylan v. Marine, 104 Cal.App.2d 321 (1951).

[5]     459 U.S. 56 (1982).

[6]     840 F.2d 730 (9th Cir. 1988).

[7]     19 Cal.4th 1084 (1999).

[8]     67 Cal.App.3d 887 (1977).

[9]     20 Cal.4th 1084 (1999).

[10]     In re Marriage of Varner, 68 Cal.App.4th 932 (1998).

[11]     Davis v. United States, 667 F.2d 822 (1982).

[12]     Code of Civil Procedure Section 916(a)

[13] 255 U.S. 22 (1921).

[14]             109 F.3d 1450, 1453 (9th Cir. 1997).

[15] In Commentary of Code of Conduct for Federal Judges, Canon 1.

[16]             Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233.

[17]             United States v. Mitchell, 377 F.Supp. 1312, 1315-16 (D.D.C.1974)

[18]             Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233.

[19]             United States v. Mitchell, 377 F.Supp. 1312, 1315-16 (D.D.C.1974)

[20]             Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233.

[21]             United States v. Mitchell, 377 F.Supp. 1312, 1315-16 (D.D.C.1974)

[22]             Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233.

[23]             United States v. Mitchell, 377 F.Supp. 1312, 1315-16 (D.D.C.1974)

[24]             Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233.

[25]             United States v. Mitchell, 377 F.Supp. 1312, 1315-16 (D.D.C.1974)

[26]             Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989).

[27]             United States v. Balistrieri, at 1202. 779 F.2d 1191 (7th Cir. 1985).

[28] United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996)

[29] Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).

[30] (See, Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988)            

[31] 779 F.2d 1191 (7th Cir. 1985).

[32]             Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009).

[33]             Id., and 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1484, at 598-600 (2d ed. 1990).

[34]             Elmore v. McCammon (1986) 640 F. Supp. 905.

[35]             Jenkins v. McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233.

[36]             Maty v. Grasselli Chemical Co., 303 U.S. 197 (1938)

[37]             Conley v. Gibson 355 U. S. 41 (1957; Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA)

[38]             Sherar v. Cullen, 481 F. 2d 946 (1973)

[39]             Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)

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