Federal Judge David O. Carter Recuses From Baldwin Section 1983 Case; Baldwin Says “Not So Fast.”

January 8, 2012 § Leave a comment

On December 19, 2011, Plaintiff, Erin K. Baldwin filed an Appeal of U.S.District Judge David O. Carter’s December 2, 2011 Court Order, in her Section 1983 Civil Rights action against Bank of America, The State Bar of California, et al., Case No.  5:11-CV-01300-DOC.  As of December 19, 2011 jurisdiction of this case has been with the United States Ninth Circuit Court of Appeal, Case No. 11-57210.

On December 21, 2011, Judge Josephine Tucker denied Baldwin’s Motion to Disqualify Judge Carter claiming there was no legitimate reason for Judge Carter to consider doing so.  Miss Baldwin filed a Notice of Related Appeal on that Order because Judge Tucker did not have jurisdiction to enter the Order. 

On January 5, 2012, United States District Court Judge David O. Carter entered an Order dated January 4, 2012, wherein he appears to have changed his mind and decided to recuse “on the abundance of caution,”  claiming that he agrees with Judge Tucker that Miss Baldwin just names “every judge that has ever ruled against her as a defendant,” and that he is probably next.   See:  010412 Judge David O. Carter Disqualification

On Friday, January 7, Miss Baldwin filed a Second Notice of Related Appeal on that Order because Judge Carter did not have jurisdiction to enter the Order.  What?  Doesn’t she want Carter to take a hike?  Well, yes …. but this tactic has been used to moot the entire appellate process and that’s no bueno for Baldwin.   Here’s the text:

SECOND NOTICE OF RELATED APPEAL, Pursuant to Federal Rules of Appellate Procedure, Rule 28‑2.6 RELATING THE JANUARY 4, 2012 ORDER OF UNITED STATES DISTRICT COURT JUDGE DAVID O. CARTER TO THE RECORD ON APPEAL AND  STATEMENT OF FACTS

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; 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 “Second Notice of Related Appeal Relating the January 4, 2012 Order Of United States District Court Judge David O. Carter (“Judge Carter”) to the Record on Appeal; and Statement of Facts.”

            Plaintiff requests that the United States Court of Appeal, Ninth Circuit, relate this Order to the existing Orders currently before the Court of Appeal in Case No. 11-57210, [1] pursuant to Federal Rules of Appellate Procedure, Rule 28‑2.6. 

            Plaintiff asserts that Judge Carter’s January 4, 2012 Order arises out of the same case in the district court,[2] raises the same or closely related issues as the previous two Orders, and involves the same events. Accordingly, and in the interest of judicial economy, Plaintiff requests that Judge Carter’s January 4, 2012 Order be deemed related to Court of Appeal Case No. 11-57210 for future consideration.

            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 Carter’s January 4, 2012 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.”    Consequently, since the three 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 Carter’s January 4, 2012 Order comprises issues supporting Plaintiff’s existing Notice of Appeal as will be set forth, infra, in Plaintiff’s Statement of Facts.

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

            5.         In addition, it appears that judicial officers connected with this case are attempting to spoliate the Record on Appeal by intentionally filing Orders without jurisdiction and with the malicious intent of trivializing Plaintiff’s claims; theorizing on Plaintiff’s motives and state of mind sans competent analysis, authority or supporting evidence of same; and attacking her integrity to color and compromise her claims.  Plaintiff requests that the three Orders submitted to date [3] be vacated as official orders of the court but sustained as inculpatory evidence supporting intentional attempts by Judge Carter and Judge Tucker to prejudice Plaintiff’s Section 1983 case on Appeal and moving forward.     

STATEMENT OF FACTS

            6.         On December 19, 2011 at 10:05 a.m., Plaintiff filed a Notice of Appeal based, inter alia, on Judge Carter’s December 2, 2011 Order.[4]  At that precise moment, jurisdiction over this case shifted to the United States Court Of Appeals For The Ninth Circuit (the “Court”) (Case No. 11-57210) and the authority of the United States District Court, Central District of California (the “USDC”) (Case No. 5:11-CV-01300-DOC) was stayed pending the outcome of the Appeal. [5]

            7.         On December 21, 2011, Judge Tucker entered an Order Denying Plaintiff’s December 13, 2011 Motion to Disqualify Judge Carter.[6]  The Order was void, ab initio, for lack of jurisdiction. (See, ¶6, supra.)

            8.         On December 28, 2011, Plaintiff filed a “Notice of Related Appeal” [7]  to include Judge Tucker’s December 21, 2011 Order in the Record on Appeal initiated by Judge Carter’s December 2, 2011 Order.

            9.         On January 5, 2012, Judge Carter entered an Order entitled, “Voluntary Recusal.” [8]   Said Order was also void, ab initio, for lack of jurisdiction. (See, ¶6, supra.)

            10.       Plaintiff files herein a “Second Notice of Related Appeal” to include Judge Carter’s January 5, 2012 Order in the Record on Appeal initiated by Judge Carter’s December 2, 2011 Order.

            11.       Notwithstanding jurisdictional defects, Judge Carter’s late decision to voluntarily recuse himself is barred because the disqualification motion filed by Plaintiff on December 13, 2011 was denied on December 21, 2011 by final order of the court and made a permanent part of the record on Appeal on December 28, 2011.  Accordingly, Judge Carter’s time to self-recuse has passed.

            12.       This case on Appeal includes the disqualification motion of Judge Carter. It matters not that Judge Carter decided on January 4, 2012 to voluntarily recuse himself because the “voluntariness” is moot with respect to the chronology of the challenge and his ability to change the fixed record as of the date of Appeal, December 19, 2011. 

            13.       If good cause existed to recuse (which fact was affirmatively demonstrated in Plaintiff’s Motion to Disqualify) Judge Carter should have recused himself on his own motion:

                        a.         prior to Plaintiff filing an Appeal,

                        b.         prior to Judge Tucker entering her December 21, 2011 Order that sanctimoniously and deleteriously prejudiced Plaintiff’s credibility in bringing the disqualification motion;

                        c.         prior to Judge Tucker entering her December 21, 2011 Order that cast doubt (with no factual substantiation) that Plaintiff’s motivations in bringing her Section 1983 Complaint was wrought with bad faith, revenge, and an apparent psychological disorder;

                        d.         prior to Judge Carter entering his January 4, 2012 Order wherein he concurred with Judge Tucker’s positions set forth in “b.,” and “c.,” supra, and 

                        e.         prior to Judge Carter violating Plaintiff’s constitutional rights by denying her fundamental fairness and protection in lines with due process of law as a Section 1983 pro se litigant.

            14.       Now, all of the muck contained in ¶13, supra, unjustly and unfavorably colors Plaintiff claims moving forward and compromises Plaintiff’s standing as a viable civil rights plaintiff.  For what? Ego? Financial gain? Power and prestige?  The feeling of power derived from stomping on a pro se litigant that has serious, legitimate claims and injuries?

            15.       This misconduct is unconscionable and is an example of the public’s unfavorable perception of the judiciary.  The federal judicial disqualification process is mainly self-recusing due to the inherent belief that federal judicial officers can contain personal prejudices.  To that end, Title 28, Section 455, not only concerns whether a judge’s impartiality might reasonably be questioned, but also attempts to protect public confidence in the judiciary.   

            16.       In summary the Ninth Circuit held:

“While review after final judgment can (at a cost) cure the harm to a litigant, it cannot cure the additional, separable harm to public confidence that §455 is designed to prevent.”  [In re Cement Antitrust Litig., 673 F.2d 1020, 1025 (9th Cir. 1982)] 

            17.       In addition, the Ninth Circuit, in Kern Oil & Refining Co. v. Tenneco Oil Co., [9] held:  “The appellate court is entitled to review a fixed, rather than mobile record.”  Contrary to this decision, Judges Carter and Tucker continue to disregard these rules of law and in an attempt to unlawfully supplement the “fixed record,” to their advantage and to the advantage of their peer judges.

            18.       In Townsel v. Superior Court, [10] the court anticipated the same issues that are present today in Plaintiff’s case, i.e., Judge Carter’s and Judge Tucker’s attempts to:

interfere with Plaintiff’s 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.”     The jurisdictional bar protects the role of the reviewing court by preserving the status quo until the appeal can be decided.

            19.       In Griggs v. Provident Consumer Discount Co.,[11] 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.”     Are Judges Carter and Tucker above the law?

            20.       Plaintiff’s December 19, 2011 Notice of Appeal requested the Court’s review of thirty-two (32) issues brought to the attention of Judge Carter in Plaintiff’s pleadings.  These issues arose out of past, present and anticipated future obstacles to the equitable resolution of Plaintiff’s Section 1983 Civil Rights Complaint.  Plaintiff hoped to resolve these issues prior to embarking on protracted litigation so that all parties would be on the same page with a common set of facts guiding the litigation. 

            21.       For example, Plaintiff requested the validation of the Parsa Law Group and UDR, Inc. permanent injunctions issued against her on June 2, 2009 and December 11, 2009, respectively.  These two injunctions form the basis of Plaintiff’s First Amendment Retaliatory Prosecution claims and it would be a preposterous exercise in futility to plead these claims if, as Plaintiff suspects, the injunctions are not even valid orders.  Why engage in months of discovery if, with one stroke of the pen, Judge Carter could launch the necessary investigation, validation and certification to make a final determination as to the validity of these injunctions. (Attached hereto as Exhibit A). Nonetheless, this request was denied like all the rest without explanation of the basis of the adverse finding.

            22.       Judge Carter’s Order states:

“Before the Court are two presently pending motions in the above-captioned case: …”

                         a.         Judge Carter fails entirely to acknowledge the current status of the case, i.e., that it is presently within the jurisdiction of the United States Court of Appeal.                               

                          b.         Therefore his comment, “Before the Court are two presently pending motions in the above-captioned case: …”  is erroneous and misleading.  It is also completely irrelevant to the stated subject matter of Judge Carter’s Order, “Voluntary Recusal.”  

                        c.         If the purpose of his Minute Order is “Voluntary Recusal,” why wouldn’t Judge Carter’s Order begin with “Before the Court is a Motion to Disqualify in the above-captioned case …”

                        d.         In fact, there is nothing “presently pending” before the Court at all because the case is stayed pending appeal.  Perhaps the statement, “All pending motions in the above-captioned case are stayed pending appeal” would have been a more accurate statement and served to bring some semblance of clarity to this case.

            23.       Judge Carter’s Order states:

“… an Amended Request for Leave to Amend the “Corrected” Second Amended Complaint filed by Plaintiff Erin K. Baldwin (“Plaintiff”) (Docket 25) …”

                        a.         On December 6, 2011, Plaintiff filed an Amended Request for:

                                    (i)  Leave to Amend “Corrected” Second Amended Complaint;

                                    (ii) An Explanation for the Basis of Adverse Findings; and

                                    (iii) Declaration of Rights.

                        b.         Plaintiff filed this Amended Request in response to Judge Carter’s December 2, 2011 Order that stated, in relevant part:

            “First, Plaintiff’s request for leave to amend her “corrected” Second Amended Complaint is DENIED, as Plaintiff’s rambling set of facts in the Motion 17-24 provide no support for granting such a request. Plaintiff has simply not explained why any amendment is necessary.”

                        c.         In response, Plaintiff stated in tremendous detail the facts pertaining to new evidence she had discovered and the importance of including it an amended complaint to advance her claims for relief. 

                        d.         Five days later, Defendant Franz E. Miller filed a new Motion to Dismiss based on Plaintiff’s new evidence.  However, Judge Carter never ruled on Plaintiff’s Amended Request. 

                        e.         As a result, Plaintiff was prejudiced by responding with specificity to Judge Carter’s reasons for denying her request for leave to amend her complaint when, in fact, this detail is not required.

                        f.          In Holmes v. Grubman [12] the Second Circuit 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.” [13]  However, “An abuse of discretion may be found if the court simply denies the motion to amend without offering any explanation.” [14] 

                        g.         Judge Carter’s “explanation” was that Plaintiff had rambling facts and failed to state why an amendment was necessary.  This is “misconduct by omission” and is an intentional tactic devised to confuse less experienced litigants, and as such,  is unconscionable for many reasons including the following: (i) Plaintiff is a pro se litigant with significant and complex Section 1983 issues; (ii) Her requests for effective assistance of counsel has been repeatedly denied by this Court; (iii) She cannot obtain counsel because one of her primary defendants is the California State Bar; and (iv) This Court has specific instructions never to rule against the California State Bar. 

                        h.         “Pro se pleadings are to be considered without regard to technicality; [ …]  they are not to be held to the same high standards of perfection as lawyers.” [15]

                        i.          “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.” [16]

                        j.          “… a pro se complaint requires a less stringent reading than one drafted by a lawyer.” [17]

                        k.         Plaintiff questions the relevance of characterizing her “Amended Request” as pending before the Court without including a statement acknowledging that the case is on Appeal. 

                        l.          Plaintiff questions the relevance of mentioning the “Amended Request” at all in an Order allegedly addressing “Voluntary Recusal.”

            24.       Judge Carter’s Order states:

“… and a Motion to Dismiss filed by Defendant Franz E. Miller (Docket 26).”            

                        a.         On December 12, 2011, Defendant Franz E. Miller filed a Motion to Dismiss Plaintiff’s Corrected Second Amended Complaint six (6) days after Plaintiff filed her Amended Request complete with detailed new evidence and support for same.

                        b.         This “Amended Request” was in response to Judge Carter’s December 2, 2011 Order denying the original request dated November 28, 2011 because he claimed Plaintiff’s arguments for leave to amend were unmeritorious.  Said December 2, 2011 Order forms the basis of the current appeal.

                        c.         Said Motion to Dismiss incorporates information gleaned from Plaintiff’s “Amended Request” unjustly solicited by Judge Carter and unjustly incorporated by Defendant Miller.  (See, ¶18, supra.)

                        d.         This Motion to Dismiss is also void due to lack of jurisdiction as it was brought by an officer of the court, Sarah L. Overton, Esq. (alleged attorney for Defendant Franz E. Miller), who is also a defendant in this action. 

                        e.         Ms. Overton’s appearance on behalf of Defendant Miller in any matter post-November 14, 2011[18] constitutes fraud upon the court as she does not have standing to represent a party to an action when she, herself, is a defendant.

                        f.          Plaintiff questions the relevance of characterizing Defendant Miller’s Motion to Dismiss” as pending before the Court without including a statement acknowledging that the case is on Appeal. 

                        g.         Plaintiff questions the relevance of mentioning Defendant Miller’s Motion to Dismiss” at all in an Order allegedly addressing “Voluntary Recusal.”

            25.       Judge Carter’s Order states:

“These motions have not yet been ruled upon because shortly after these motions were filed, Plaintiff filed a Motion to Disqualify Judge David O. Carter (Docket 27).”

                        a.         This is an intentional misrepresentation and malicious fabrication of undisputed facts easily verified by the record in this case.                             

                        b.         The first motion, Plaintiff’s “Amended Request for Leave to Amend “Corrected” Second Amended Complaint; An Explanation for the Basis of Adverse Findings; and Declaration of Rights,” was filed on December 6, 2011.  This is a full week before Plaintiff filed her December 13, 2011 Motion to Disqualify Judge Carter. 

                        c.         A full week is sufficient time to rule on a motion, particularly when it is an amended motion, and the judge is already familiar with the elements.  However, the truth is that Judge Carter was waiting for Judge Franz E. Miller (“Defendant Miller”) to file his new Motion to Dismiss based on Plaintiff’s new evidence. 

                        d.         The second motion, Defendant Miller’s Motion to Dismiss was filed on December 12, 2011, the day before Plaintiff filed her December 13, 2011 Motion to Disqualify Judge Carter.  However, Plaintiff’s Motion to Disqualify Judge Carter had nothing to do with this ruling because it was set for hearing on January 30, 2012.

                        e.         And finally, these Motions have not been ruled on because the case is on Appeal not because Plaintiff filed a Motion to Disqualify Judge Carter.  By virtue of Judge Carter’s statement, “These motions have not yet been ruled upon because shortly after these motions were filed, Plaintiff filed a Motion to Disqualify Judge David O. Carter,” is ample validation that the effect of Plaintiff’s Motion to Disqualify stayed all further action in the case, i.e, the “motions that have not yet been ruled upon.”         

            26.       Judge Carter’s Order states:

“Judge Josephine Tucker denied the Motion to Disqualify on December 21, 2011 (Docket 31).”

                        a.         As stated in the first Notice of Related Case, Judge Tucker lacked jurisdiction to enter this December 21, 2011 Order for the same reasons Judge Carter lacks jurisdiction to enter his January 4, 2012 Order stated herein.

                        b.         Once an Appeal has been filed, the case is stayed and no further action can be taken, lest the Record on Appeal is spoliated.

            27.       Judge Carter’s Order states:

“Plaintiff alleges in her Motion to Disqualify that this Court has “committed egregious acts of judicial misconduct” and “took actions to jeopardize Plaintiff’s case.”  

                        a.         Please refer to the balance of this pleading and Plaintiff’s Motion to Disqualify Judge Carter for facts and law to corroborate the truth of these statements.

                        b.         Why can’t Plaintiff petition the federal court for redress of grievances arising from violations of her constitutional rights without being subjected to more of the same in the federal court where she brought her Complaint?

            28.       Judge Carter’s Order states:

“Plaintiff goes on to argue that she was “denied the right to withhold consent to a magistrate judge hearing her case” by this Court in its October 11, 2011 Order. Motion to Disqualify, 26.

                        a.         Judge Carter’s October 11, 2011 Order, in relevant part, states:

“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).” 

                        b.         Judge Carter’s statement, specifically, “when pretrial proceedings are referred to a magistrate judge,” is sufficient evidence that the intent of the full statement was to lead Plaintiff to believe that she was only required to submit to a Magistrate Judge for pretrial purposes only, i.e., non-dispositive motions. 

                        c.         However, as fully set forth in Plaintiff’s first Notice of Related Appeal, the Central District Court of California has established a custom, policy and procedure to assign all pro se Section 1983 civil rights complaints to magistrate judges under the guise that “it is for pretrial purposes only.”  These cases are categorized as “194” cases.

                        d.         In careful consideration of General Order 05-07, it is clear that magistrates, in Pro Se Section 1983 cases are authorized to hear nondispositive and dispositive motions, i.e., all matters.  Pro se civil rights “194” plaintiffs are not entitled to withhold consent to a magistrate judge. This fact is corroborated by Judge Carter’s Courtroom Clerk, Julie Barrera, in her email to Plaintiff that states, in relevant part:

“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.”      

                        e.         What was “being requested” by Plaintiff was an “Assignment Order to a District Court Judge.”  Ms. Barrera validated that Plaintiff’s “194” case status was not an “MJ Direct Assignment Case,” status which would have entitled her to “opt out of having only an MJ hear the matter.”

                        f.          Furthermore, General Order 05-07, in relevant part, states:

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.          

                        g.         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 and by so doing intentionally and directly discriminates against pro se litigants in their attempt to bring claims for violations of their civil rights to federal court.  The only way a Pro Se Section 1983 litigant will receive equal treatment as other Section 1983 litigants is set forth in General Order 08-05:

“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.”

                        h.         In summary, the only way a Pro Se Section 1983 litigant will receive equal protection under the law at Central District Court of California is if they are not a Pro Se Section 1983 litigant, i.e., if they get an attorney; or if their complaint is dismissed without leave to amend.  If a complaint is dismissed without leave to amend isn’t that the end of the road?

            29.       Judge Carter’s Order states:

“These allegations, along with Judge Tucker’s recognition of Plaintiff’s apparent ‘pattern to name as a defendant any and every judge who issues an unfavorable ruling against her’ suggests that if this Court is not yet a defendant in the above-captioned case, it soon will be. Order on Motion to Disqualify, 6.”

                        a.         A message delivered from a famous quote, infra, is instructive: 

“There is a principle which is a bar against all information, which is proof against all arguments and which cannot fail to keep man in everlasting ignorance — that principle is contempt prior to investigation.” — Herbert Spencer 

                        b.         With all due respect, the statements contained in ¶29, supra, simply demonstrate the embarrassing ignorance of both Judge Carter and Judge Tucker.   This is not to state that Judges Carter and Tucker are stupid; rather, uninformed.  They have not invested the requisite time to investigate the written claims in their Orders before publishing them. 

                        c.         The guiding pleading in any controversy is the Complaint.  Had Judges Carter and Tucker read Plaintiff’s Complaint, it would be difficult to imagine the same prejudicial statements.  

                        d.         Below is a list of the judges (aside from the three judicial officers properly named as defendants in Plaintiff’s Complaint) that have ruled against Plaintiff during the past three years relevant to Plaintiff’s Section 1983 claims, none of whom are included in Plaintiff’s Complaint as defendants

                        e.         Therefore, Judges Carter and Tucker’s theory that Plaintiff demonstrates a pattern of behavior wherein she “names as a defendant any and every judge who issues an unfavorable ruling against her,” is moot in light of Plaintiff’s supporting evidence to the contrary.  Rather, their theory is just another prejudicial avenue to intentionally compromise Plaintiff’s Complaint.  It is akin to Judge Tucker’s statement that Plaintiff is a “harassing civil litigant.”

            30.       Here come the judges:

            a.         Orange County Superior Court Commissioner Richard E. Pacheco, Harbor Justice Center, Newport Beach;

            b.         Orange County Superior Court Judge Craig E. Robison, Harbor Justice Center, Newport Beach; 

            c.         Orange County Superior Court Judge Derek Johnson, Harbor Justice Center, Newport Beach;

            d.         Orange County Superior Court Judge Karen Robinson, Harbor Justice Center, Newport Beach;

            e.         Orange County Superior Court Judge Steven Perk, Central Justice Center, Santa Ana;

            f.          San Bernardino Superior Court Judge Steven Malone, Victorville, California;

            g.         San Bernardino Superior Court Judge Gilbert Ochoa, Big Bear, California;

            h.         San Bernardino Superior Court Judge Kenneth Barr, San Bernardino, California;

            i.          San Bernardino Superior Court Judge Kyle Brodie, San Bernardino, California;

            j.          San Bernardino Superior Court Judge Michael Dest, San Bernardino, California;

            k.         San Bernardino Superior Court Judge Ronald Christiansen, San Bernardino, California;

            l.          San Bernardino Superior Court Judge Donna Gunnell Garza, San Bernardino, California;

            m.        San Bernardino Superior Court Judge Thomas Garza, San Bernardino, California;

            n.         Los Angeles Superior Court Judge Carolyn Kuhl, Los Angeles, California;

            o.         California Ninth Circuit Court of Appeal Fourth District, Division Three, Associate Justice Kathleen E. O’Leary;

            p.         California Ninth Circuit Court of Appeal Fourth District, Division Three, Associate Justice William F. Rylaarsdam;

            q.         California Ninth Circuit Court of Appeal Fourth District, Division Three, Associate Justice Richard M. Aronson;

            r.          California Ninth Circuit Court of Appeal Fourth District, Division Three, Associate Justice Richard D. Fybel;

            s.          United States District Court, Central District of California, District Judge David O. Carter; and

            t.          United States District Court, Central District of California, District Judge Josephine Staton Tucker.

            31.       Judge Carter’s Order states:

“Accordingly, out of an abundance of caution, this Court chooses to voluntarily recuse itself at the present time.”

                        a.         Here again, Judge Carter intentionally casts Plaintiff in a false light by mischaracterizes her as someone who arbitrarily takes action without forethought or meaningful consideration. 

                        b.         As Judge Tucker theorized before him, Judge Carter contemplates that Plaintiff’s Motion to Disqualify is charged with personal animosity.  Contrary to this flawed reaction, Plaintiff’s decision to file a disqualification motion is a well thought-out decision based only on Plaintiff’s belief that Judge Carter could not be impartial based on 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.”

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

                        d.         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 [19]  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 [20] as the same “reasonable person” would not be privy to the current status of their relationship, only the facts as they appeared in 2004.

                        e.         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.

                        f.          Plaintiff also relied on Title 28 U.S.C. §144 which is considered the litigant’s tool in seeking judicial disqualification as compared to Title 28 U.S.C. §455 that is intended as a tool for judges to evaluate the merits of self-recusal.    Title 28 U.S.C. §144 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.”

                        g.         Judge Carter (not “the Court”) cannot choose to voluntarily recuse himself (not “itself”) at the present time, as he has no jurisdiction to do so.  A judge is not “the Court,” he or she is an officer of the court the same as attorneys.   

                        h.         Again, this case is on Appeal and no action can be taken nor Order entered that alters the record on Appeal.  Since one of the elements of this Appeal is the denial of Plaintiff’s constitutional rights by Judge Carter via his December 2, 2011 Order, a self-recusal cannot be recognized.          

            32.       Judge Carter’s Order states:

“The two currently pending motions will thus remain pending until the above-captioned case is reassigned to a different judge, perhaps outside of the Santa Ana courthouse.” 

                        a.         Actually, “the two currently pending motions will thus remain pending” until the Appeal in this matter is complete.

                        b.         Actually, this case will not “be reassigned to a different judge” until the Appeal in this matter is complete.

                        c.         The venue of the judge and the criteria for same will not be decided until the Appeal in this matter is complete.     

                        d.         Since Plaintiff originally filed her Complaint in the Eastern Division, she expected to be heard in the Eastern Division.  It is unknown why she was assigned to Judge Carter in “the Santa Ana courthouse,” particularly since he has not been “randomly assigned” a Pro Se Section 1983 case since May of 2008.

            33.       Plaintiff has lodged valid and pointed arguments, supra, to sustain a request for notice and related appeal pursuant to Federal Rules of Appellate Procedure, Rule 28‑2.6.  A such, the January 4, 2012 Order of Judge Carter shall be incorporated into the Record on Appeal of Case No. 11-57210, forthwith.

Dated:    January 6, 2012                               

Respectfully submitted,

Erin K. Baldwin

Plaintiff, Pro Se


[1]               Judge Carter’s December 2, 2011 Order; Judge Tucker’s December 21, 2011 Order and this present Order from Judge Carter dated June 4, 2011.

[2]               United States District Court, Central District Court of California, Case No. 5:11-CV-01300-DOC.

[3]               Judge Carter’s December 2, 2011 Order; Judge Tucker’s December 21, 2011 Order; and Judge Carter’s January 4, 2012 Order.

[4]               Docket No. 29, filed on December 19, 2011; available on PACER on December 20, 2011.  Three of eight pages  were missing and the complete record was not available on PACER until December 29, 2011.

[5]               With the exception of clerical or ministerial duties.  See, Boylan v. Marine, 104 Cal.App.2d 321 (1951).

[6]               Docket No. 31, dated on December 21, 2011; distributed to the parties on December 22, 2011

[7]               Docket No. 35, filed on December 28, 2011 but not available on PACER until January 4, 2012.

[8]               Docket No. 36, dated January 4, 2012 but not available on PACER until January 5, 2012.

[9]               840 F.2d 730 (9th Cir. 1988).

[10]             Townsel v. Superior Court (People) (1999), 20 Cal. 4th 1084 [86 Cal. Rptr. 2d 602, 979 P.2d 963]

[11]             459 U.S. 56 (1982).

[12]             568 F.3d 329, 334 (2d Cir. 2009).

[13]             568 F.3d 329, 334 (2d Cir. 2009).

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

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

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

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

[18]             November 14, 2011 is the date Sarah L. Overton, Esq. was added as a defendant to this action in Plaintiff’s “Corrected” Second Amended Complaint. 

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

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

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You are currently reading Federal Judge David O. Carter Recuses From Baldwin Section 1983 Case; Baldwin Says “Not So Fast.” at cacorruptionwatch.

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