[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 17, 2004
No. 03-14745 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00010-CV-JTC-3
STACY ALLEN DRAPER,
Plaintiff-Appellant,
versus
CLINTON D. REYNOLDS,
Deputy,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 17, 2004)
Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and EDENFIELD*,
District Judge.
HULL, Circuit Judge:
*
Honorable B. Avant Edenfield, United States District Judge for the Southern District of
Georgia, sitting by designation.
Plaintiff Stacy Allen Draper sued Defendant Deputy Sheriff Clinton D.
Reynolds, individually, under 42 U.S.C. § 1983 and state law, for civil rights
violations arising out of a traffic stop and arrest. The district court granted
summary judgment for Reynolds on the federal claims and remanded the state law
claims to state court. We affirm.
I. Background
A. The Traffic Stop
At approximately 11:30 p.m. on July 19, 2001, Deputy Sheriff Clinton D.
Reynolds (“Reynolds”) stopped a tractor trailer truck (the “truck”) driven by
Plaintiff Stacy Allen Draper (“Draper”). While on patrol for the Sheriff’s Office
of Coweta County, Georgia, Reynolds observed Draper’s truck traveling
northbound on I-85 and stopped the truck allegedly because its tag light was not
appropriately illuminated under Georgia law.
After Draper pulled his truck to the side of the interstate, Reynolds stopped
his patrol car directly behind the truck. Reynolds on foot approached the
passenger side of the truck cab, as was his practice in all roadside stops. When
Reynolds reached the truck cab, the engine was running, the passenger window
was closed, and the cab was illuminated briefly by an interior light but then
became dark. Draper observed Reynolds at the passenger side and believed that
2
Reynolds was performing an inspection of the vehicle. From the passenger side,
Reynolds shined his flashlight at the truck cab twice.
For summary judgment purposes, we accept Draper’s version of what
happened.1 Draper was blinded by the flashlight the second time Reynolds shined
it in the cab. Draper rolled down the passenger window and politely asked
Reynolds to stop shining the flashlight at him. Reynolds then “said something like
god dammit, you don’t worry about what I’m doing over here.” Draper again
politely asked Reynolds to stop shining the light at him. Reynolds replied, “I told
you to get your fucking ass over here two times.” Draper then told Reynolds to
get his “god darn flashlight” out of his eyes.
Reynolds then instructed Draper to meet him behind the truck, a location in
view of a police camera that Reynolds had activated in his patrol car.2 Reynolds
also unholstered his TASER International ADVANCED TASER M26 (“taser
1
We recite the facts in the light most favorable to Plaintiff Draper. See Vinyard v.
Wilson, 311 F.3d 1340, 1343 n.1 (11th Cir. 2002). However, Reynolds hotly disputes Draper’s
version of the facts. Reynolds contends that he quickly “blinked” the flashlight into the cab
twice in an attempt to “let [Draper] know that I was standing over there on the side for him to
meet me over there, to know where I was at.” According to Reynolds, Draper then rolled down
the passenger window and said, “[W]hy the fuck are you shining that god damn flashlight in my
eyes[?]”
2
The police camera was located in Reynolds’s car parked behind the truck. Because of
the camera’s location, the encounter at the truck cab is not clearly visible and no sound is heard.
The police camera, however, recorded the actions and sound from the encounter behind the truck.
3
gun”),3 which he kept in his hand through the remainder of the encounter. Draper
got out of the truck cab and walked to the back of the truck.
The video camera in the patrol car recorded Draper’s and Reynolds’s speech
and actions behind the truck.4 Upon arrival behind the truck, Draper immediately
began shouting and complaining about Reynolds’s shining the flashlight in his
face. Reynolds calmly asked Draper for his driver’s license, but Draper continued
to complain about Reynolds’s prior use of the flashlight. Draper also insisted that
he had done nothing wrong. During the encounter, Draper was belligerent,
gestured animatedly, continuously paced, appeared very excited, and spoke loudly.
Reynolds repeatedly asked Draper to stop yelling and informed Draper that
he would be taken to jail if he continued to yell. Reynolds told Draper that he also
needed Draper’s log book and bill of lading. Draper began to walk toward the
truck cab while asking Reynolds if he needed anything else, but then turned
3
Reynolds’s taser gun is a Conducted Energy Weapon that uses propelled wire to conduct
energy to a remote target, thereby controlling and overriding the body’s central nervous system.
The taser gun fires two probes up to a distance of twenty-one feet from a replaceable cartridge.
These probes are connected to the taser gun by high-voltage insulated wire. When the probes
make contact with the target, the taser gun transmits electrical pulses along the wires and into the
body of the target, through up to two inches of clothing.
4
See Appendix 1 for a transcript of the conversation between Draper and Reynolds at the
back of the truck captured by the police video camera.
4
around and loudly accused Reynolds of harassing him. Reynolds replied that he
needed Draper’s license and insurance.
Draper handed his license to Reynolds and again began walking to the truck
cab, but turned around when Reynolds told him for the second time to retrieve his
bill of lading, proof of insurance, and log book. Draper still did not go to the truck
cab but instead walked back toward Reynolds and accused him again of
harassment.
For the third time, Reynolds told Draper to get the requested items, and
Draper responded by exclaiming, “How ‘bout you just go ahead and take me to
fucking jail, then, man, you know, because I’m not going to kiss your damn ass
because you’re a police officer.” Reynolds instructed Draper to calm down, but
Draper protested loudly that he was calm. Reynolds explained that he believed
Draper’s actions were “threatening” and “putting [Reynolds] on the defensive.”
For the fourth time, Reynolds told Draper to retrieve the requested
documents. Draper did not move to the truck cab to get them and loudly
complained that Reynolds was treating him like a “child” and disrespecting him.
Reynolds replied that he had not disrespected Draper, and then he signaled to his
back up, which had just arrived, with his flashlight. Draper continued to yell and
accuse Reynolds of disrespecting him.
5
For the fifth time, Reynolds told Draper to retrieve the documents and then
promptly discharged his taser gun at Draper’s chest. Draper fell to the ground out
of the police camera’s view. Reynolds told Draper to stay on the ground and
threatened to discharge the taser gun again if Draper did not comply. Reynolds
then yelled to his back-up officer who had just arrived: “Handcuff this son of a
bitch.” Draper was handcuffed, searched, and placed in the back of the police
car.5 The police also searched Draper’s truck at the arrest site.
After the other officers arrived and Draper was arrested, Reynolds stated to
the officers that he thought Draper was going “to fight me” and that he pulled
Draper over for a tag light violation. At the end of the video, the police camera
focused on the area of the tag, while Reynolds again explained that he pulled
Draper over for a tag light violation. Draper properly points out that at the end of
the video, all of his truck’s rear lights were turned off and were not shining, and
thus the video does not establish conclusively that his tag light was out.
5
While handcuffing Draper, one back-up officer placed a knee in Draper’s back, which
Draper claims forced a taser gun probe into his skin in the chest area. This back-up officer is not
a defendant. Draper states that this area (approximately one quarter of an inch in size) became
infected. Draper admits that he did not request medical treatment while in the Coweta County
jail but still claims that Reynolds was deliberately indifferent to Draper’s medical needs. Further,
Draper raises this medical needs claim for the first time on appeal, and thus we consider it
waived. See Ferrill v. Parker Group, Inc., 168 F.3d 468, 475 (11th Cir. 1999).
6
As noted in his incident report, Reynolds charged Draper with obstruction
of an officer, in violation of Ga. Code Ann. § 16-10-24, and with having an
improperly illuminated taillight, in violation of Ga. Code Ann. § 40-8-23.
B. Procedural History
Draper filed suit against Reynolds individually in the State Court of Coweta
County, Georgia under 42 U.S.C. § 1983 and state law. Draper’s complaint
contends that Reynolds improperly stopped him, falsely arrested him, and used
excessive force in his arrest, all in violation of his constitutional rights and state
law. Reynolds removed the case to the United States District Court for the
Northern District of Georgia.
Draper then filed a “Motion to Disqualify United States District Court Judge
Jack T. Camp as Judge in This Case,” which the district court denied. Reynolds
moved for summary judgment based on qualified immunity. The district court
granted Reynolds’s motion for summary judgment with regard to the federal
claims. The district court remanded the state law claims to state court. Draper
appeals the district court’s grant of summary judgment and its denial of his
disqualification motion.
II. Standard of Review
7
We review de novo a district court’s grant of summary judgment based on
qualified immunity and apply the same legal standards as the district court.
Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003). “We resolve all issues
of material fact in favor of the plaintiff, and then determine the legal question of
whether the defendant is entitled to qualified immunity under that version of the
facts.” Id.
We review for an abuse of discretion the district court’s denial of a recusal
motion. Byrne v. Nezhat, 261 F.3d 1075, 1100 (11th Cir. 2001); Jaffree v.
Wallace, 837 F.2d 1461, 1465 (11th Cir. 1988).
III. Discussion
A. Qualified Immunity
To determine whether Reynolds is entitled to qualified immunity, we apply
a two-part inquiry. First, applying the facts in the light most favorable to Draper,
we must ascertain whether Reynolds violated Draper’s constitutional rights. See
Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 2155 (2001); Vinyard v.
Wilson, 311 F.3d 1340, 1346-47 (11th Cir. 2002); Lee v. Ferraro, 284 F.3d 1188,
1194 (11th Cir. 2002). Second, if we decide that a constitutional violation
occurred, we then must determine whether the rights violated were “clearly
8
established.” Vinyard, 311 F.3d at 1346; Lee, 284 F.3d at 1194. We thus begin
by analyzing whether Reynolds violated Draper’s constitutional rights.
B. Probable Cause for Traffic Stop
Draper sues Reynolds for stopping his truck in violation of the Fourth
Amendment. Draper contends that Reynolds’s reason for stopping Draper – that
the tag light on Draper’s truck was not adequately illuminated – was pretextual.
According to Draper, Reynolds stopped his truck because Draper was African
American and Reynolds wanted to search vehicles for drugs with the hope of
having vehicles forfeited to the Sheriff of Coweta County.
As the district court correctly noted, the Supreme Court and this Court
previously rejected the use of such pretextual-stop analysis and concluded that
ulterior motives will not invalidate police conduct based on probable cause to
believe a violation of the law occurred. Whren v. United States, 517 U.S. 806,
812-13, 116 S. Ct. 1769, 1774 (1996); United States v. Holloman, 113 F.3d 192,
194 (11th Cir. 1997). Indeed, this Court in Holloman rejected a very similar
pretextual-stop argument. 113 F.3d at 194. In Holloman, a St. Petersburg, Florida
detective stopped Holloman’s pickup truck because the truck’s tag light was not
properly illuminated under Florida law. Id. at 193. Under the St. Petersburg
police department’s drug interdiction operation, after a vehicle was stopped for a
9
traffic violation, the detectives either would conduct a consensual search of the
vehicle or would summon a narcotics detection canine to sniff the exterior of the
vehicle. Id. After Holloman refused to consent to a search, a narcotics canine
sniffed his vehicle and alerted to drugs, which were found in the vehicle. Id.
Holloman was indicted with possession and intent to distribute narcotics. Id. at
193-94. Holloman moved to suppress the evidence of drugs, arguing that the
traffic stop was “‘unreasonably pretextual and unconstitutional.’” Id. at 194.
This Court in Holloman noted that the Supreme Court’s decision in Whren
“squarely rejected the pretextual stop analysis that had prevailed previously in the
Eleventh Circuit.” Id. This Court explained that, under Whren, “the constitutional
‘reasonableness’ of a traffic stop must be determined irrespective of ‘intent,’
whether of the particular officer involved or of the theoretical ‘reasonable
officer.’” Id. (quoting Whren, 517 U.S. at 811-16, 116 S. Ct. at 1773-76). We
further explained that Whren “conclusively refutes the notion that ulterior motives
may invalidate police conduct that is justified on the basis of probable cause to
believe that a violation of law has occurred.” Id. at 194. In Holloman, this Court
concluded that because the detectives “possessed probable cause to believe that a
traffic violation had occurred,” the stop complied with the Fourth Amendment
regardless of their desire to intercept drugs.
10
Thus, the only question for purposes of examining the constitutionality of
Reynolds’ stop is: Did Reynolds have probable cause to believe that a traffic
violation had occurred? Under Georgia law, a tag must be illuminated with a
white light so that it is legible from fifty feet to the rear. Ga. Stat. Ann. § 40-8-
23.6 At his deposition, Reynolds testified that he stopped Draper because he
observed that Draper’s tag light was out. At his deposition, Draper testified that
he picked up his truck at the wrecker yard between eleven a.m. and noon the next
day and that his tag light was working. That the tag light was working to an
unknown extent during daylight does not directly contradict Reynolds’s position
that the registration plate was not clearly legible from fifty feet away on the night
of the stop and is insufficient to create a genuine issue of material fact in this
record. We thus conclude that Reynolds had probable cause to stop Draper’s
truck.7
6
Section 40-8-23 states in relevant part:
Either a taillight or a separate light shall be so constructed and placed as to illuminate
with a white light the rear registration plate and render it clearly legible from a
distance of 50 feet to the rear. Any taillight or taillights, together with any separate
light for illuminating the rear registration plate, shall be so wired as to be lighted
whenever the headlights or auxiliary driving lights are lighted.
Ga. Code. Ann. § 40-8-23(d).
7
Given our conclusion that Reynolds had actual probable cause and no constitutional
violation occurred, we need not discuss the arguable probable cause doctrine and whether a law
enforcement officer reasonably could have believed that probable cause existed for purposes of
determining the second prong of the qualified immunity test. See Holmes v. Kucynda, 321 F.3d
1069, 1079 (11th Cir. 2003); Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997). “Even law
11
C. Probable Cause to Arrest Draper
Even if the stop was constitutional, Draper contends that Reynolds violated
his Fourth Amendment rights by arresting him. Probable cause to arrest exists
“‘when the facts and circumstances within the officer’s knowledge, of which he or
she has reasonably trustworthy information, would cause a prudent person to
believe, under the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.’” Durruthy, 351 F.3d at 1088
(quoting McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir.
2003)). As discussed earlier, Reynolds had probable cause to stop Draper for a tag
light violation, and that probable cause was also sufficient to permit Reynolds to
arrest Draper for that violation. Thus, we now focus on the obstruction-of-justice
charge.8
Under Georgia law, it is unlawful to knowingly and willfully obstruct or
hinder any law enforcement officer in the lawful discharge of his official duties.
enforcement officials who ‘reasonably but mistakenly conclude that probable cause is present’
are entitled to immunity.” Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536 (1991)
(citation omitted); Holmes, 321 F.3d at 1079 (quoting Hunter); Montoute, 114 F.3d at 184
(same).
8
The parties do not dispute that a custodial arrest may be made for both a misdemeanor
offense and traffic violations. See Atwater v. City of Lago Vista, 532 U.S. 318, 355, 121 S. Ct.
1536, 1557 (2001).
12
Ga. Code Ann. § 16-10-24(a).9 The undisputed facts in this case show that at least
five times Reynolds instructed Draper to retrieve certain relevant documents.
Each time Reynolds requested these items, Draper failed to comply with the
request. Instead, Draper accused Reynolds of harassing him and even yelled at
Reynolds, “How ‘bout you just go ahead and take me to fucking jail . . . .” Draper
acted in a confrontational and agitated manner, paced back and forth, and
repeatedly yelled at Reynolds while they were at the back of the truck. By
repeatedly refusing to comply with Reynolds’s reasonable instructions, and by
acting belligerently and confrontationally, Draper hindered Reynolds in
9
Section 16-10-24(a) states in relevant part: “[A] person who knowingly and willfully
obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is
guilty of a misdemeanor.” Ga. Code Ann. §16-10-24(a).
13
completing the traffic stop.10 Thus, Reynolds had ample probable cause to arrest
Draper for violating Ga. Code Ann. § 16-10-24.11
D. Excessive Force
Draper also asserts that Reynolds used excessive force in effectuating the
arrest by discharging a taser gun at Draper’s chest. Draper argues that Reynolds
did not need to use any force in arresting him because Draper gladly would have
10
For examples of the application of § 16-10-24(a), see Evans v. State, 250 Ga. App. 70,
71, 550 S.E.2d 118 (2001) (“This court has previously held that certain verbal exchanges
between a defendant and officers can authorize a conviction for misdemeanor obstruction.”);
Pinchon v. State, 237 Ga. App. 675, 676, 516 S.E.2d 537 (1999) (“Argument, flight, stubborn
obstinance, and lying are all examples of conduct that may satisfy the obstruction element.”);
Johnson v. State, 234 Ga. App. 218, 507 S.E.2d 13 (1998) (affirming obstruction conviction
where defendant refused to obey police officer’s command to exit vehicle); Carter v. State, 222
Ga. App. 397, 397-98, 474 S.E.2d 228 (1996) (concluding that whether defendant’s making
“loud, unruly statements and using profane language” when police questioned her in her home
constituted misdemeanor obstruction was a question for the trier of fact); Duke v. State, 205 Ga.
App. 689, 689-90, 423 S.E.2d 427 (1992) (concluding that misdemeanor obstruction does not
require “evidence of forcible resistence or opposition”); Hall v. State, 201 Ga. App. 328, 411
S.E.2d 274 (1991) (refusing to produce drivers’ license and beginning to walk towards car were
sufficient for obstruction conviction); Bailey v. State, 190 Ga. App. 683, 683-84, 379 S.E.2d 816
(1989) (stating that defendant’s refusal to identify himself was not merely discourteous but was
sufficient for obstruction conviction).
11
Draper also argues that Reynolds violated his First Amendment right to freedom of
speech because Reynolds arrested him for proclaiming his innocence. Draper’s claim is without
merit because Reynolds had probable cause to arrest Draper regardless of Reynolds’s motivation.
See Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir. 2002) (“Whatever the officers’ motivation,
however, the existence of probable cause to arrest [the plaintiff] defeats her First Amendment
claim.”). Further, Draper’s claim in the district court that the inventory search of his truck was
unconstitutional is not raised as an issue on appeal, and thus we do not address it.
14
complied with Reynolds’s arrest requests if Reynolds had just verbally told him he
was under arrest.12
“The Fourth Amendment’s freedom from unreasonable searches and
seizures encompasses the plain right to be free from the use of excessive force in
the course of an arrest.” Lee, 284 F.3d at 1197 (citing Graham v. Connor, 490 U.S.
386, 394-95, 109 S. Ct. 1865, 1871 (1989)). A court looks to the “totality of
circumstances” to determine whether the manner of arrest was reasonable. See
Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S. Ct. 1694, 1700 (1985). “[I]n
determining if force was reasonable, courts must examine (1) the need for the
application of force,13 (2) the relationship between the need and amount of force
used, and (3) the extent of the injury inflicted.” Lee, 284 F.3d at 1198 (citing
Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986)); see also Vinyard, 311
F.3d at 1347. It is well settled that the right to make an arrest “necessarily carries
12
Draper also asserts in passing that excessive force was used in handcuffing him and in
placing him in the police car. However, his brief on appeal fails to argue the merits of these
claims, and we view them as waived. See Chavis v. Clayton County Sch. Dist., 300 F.3d 1288,
1291 n.4 (11th Cir. 2002) (citing Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6
(11th Cir. 1987) (stating that “issues not argued on appeal are deemed waived, and passing
reference in an appellate brief is insufficient to raise an issue”)). To the extent that these claims
are not waived, they lack merit in any event.
13
As this Court recently explained in Lee v. Ferraro, the need for the application of force
is measured by this test: “the force used by a police officer in carrying out an arrest must be
reasonably proportionate to the need for that force, which is measured by the severity of the
crime, the danger to the officer, and the risk of flight.” 284 F.3d at 1198 (interpreting Graham).
15
with it the right to use some degree of physical coercion or threat thereof to effect
it.” Graham, 490 U.S. at 396, 109 S. Ct. at 1871-72; Vinyard, 311 F.3d at 1347;
Lee, 284 F.3d at 1197. Moreover, “[t]he calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second
judgments – in circumstances that are tense, uncertain, and rapidly evolving –
about the amount of force that is necessary in a particular situation.” Graham, 490
U.S. at 396-97, 109 S. Ct. at 1872.
In the circumstances of this case, Reynolds’s use of the taser gun to
effectuate the arrest of Draper was reasonably proportionate to the difficult, tense
and uncertain situation that Reynolds faced in this traffic stop, and did not
constitute excessive force. From the time Draper met Reynolds at the back of the
truck, Draper was hostile, belligerent, and uncooperative. No less than five times,
Reynolds asked Draper to retrieve documents from the truck cab, and each time
Draper refused to comply. Rather, Draper accused Reynolds of harassing him and
blinding him with the flashlight. Draper used profanity, moved around and paced
in agitation, and repeatedly yelled at Reynolds. Because Draper repeatedly
refused to comply with Reynolds’s verbal comments, starting with a verbal arrest
command was not required in these particular factual circumstances. More
importantly, a verbal arrest command accompanied by attempted physical
16
handcuffing, in these particular factual circumstances, may well have, or would
likely have, escalated a tense and difficult situation into a serious physical struggle
in which either Draper or Reynolds would be seriously hurt. Thus, there was a
reasonable need for some use of force in this arrest.
Although being struck by a taser gun is an unpleasant experience, the
amount of force Reynolds used – a single use of the taser gun causing a one-time
shocking – was reasonably proportionate to the need for force and did not inflict
any serious injury. Indeed, the police video shows that Draper was standing up,
handcuffed, and coherent shortly after the taser gun stunned and calmed him. The
single use of the taser gun may well have prevented a physical struggle and serious
harm to either Draper or Reynolds. Under the “totality of the circumstances,”
Reynolds’s use of the taser gun did not constitute excessive force, and Reynolds
did not violate Draper’s constitutional rights in this arrest.14
E. Recusal Motion
14
Draper also argues that Reynolds violated his Fourteenth Amendment rights to equal
protection and substantive due process. To state an equal protection claim, Draper must allege
that “through state action, similarly situated persons have been treated disparately,” Thigpen v.
Bibb County Sheriff’s Dep’t., 223 F.3d 1231, 1237 (11th Cir. 2000), and put forth evidence that
Reynolds’s actions were motivated by race. See Vill. of Arlington Heights v. Metro. Housing
Dev. Corp., 429 U.S. 252, 265-66, 97 S. Ct. 555, 563 (1977). Draper presented no evidence that
Reynolds treated white truck drivers differently from African-American truck drivers and no
evidence showing that Reynolds’s actions were motivated by race.
17
Plaintiff Draper also appeals the district court’s denial of his motion seeking
its recusal under 28 U.S.C. § 455 and 28 U.S.C. § 144. The bases for Draper’s
motion are: (1) Draper’s counsel’s previous involvement in a case before Judge
Camp, in which Judge Camp reduced the attorney’s fees sought by Draper’s
counsel; (2) Judge Camp’s ownership interest in certain property located in
Coweta County, Georgia, for which Judge Camp previously filed and
subsequently withdrew an application seeking zoning reclassification; (3) Judge
Camp’s previous membership in the Glover & Davis law firm, a member of which
now serves as the Coweta County Attorney; and (4) Judge Camp’s alleged general
bias in favor of governmental attorneys and Coweta County, and against African
American litigants. The district court properly denied Draper’s motion.
1. Section 455
Draper argues that Judge Camp’s presiding over his case violates 28 U.S.C.
§§ 455(a), (b)(1), (b)(4), and (b)(5). Section 455 provides, in relevant part:
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding;
....
18
(4) He knows that he, individually or as a fiduciary, . . . has
a financial interest in the subject matter in controversy or
in a party to the proceeding, or any other interest that could
be substantially affected by the outcome of the proceeding;
(5) He or his spouse . . . [i]s known by the judge to have an
interest that could be substantially affected by the outcome
of the proceeding . . . .
28 U.S.C. § 455 (emphasis added).
First, Draper asserts that Judge Camp’s reduction of his attorney’s fees in a
previous case establishes bias against Draper’s counsel, requiring recusal under
§§ 455(a) and (b)(1). The United States Supreme Court has instructed that
“judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157
(1994). Liteky makes clear that a judge’s decision to “benefit” one party over
another in a previous judicial proceeding, without more, can never form the basis
of a § 455(a) recusal motion unless the decision displays a “deep-seated favoritism
or antagonism that would make fair judgment impossible.” Id. Draper has cited
no facts indicating that Judge Camp’s reduction of Draper’s counsel’s fees evinces
such favoritism or antagonism. We further note that “bias against a lawyer, even if
found to exist, without more is not bias against his client.” In re Drexel Burnham
Lambert Inc., 861 F.2d 1307, 1314 (2d Cir. 1988). Thus, Judge Camp’s previous
ruling clearly does not require recusal under § 455(a) or (b)(1).
19
Second, Draper argues that Judge Camp’s ownership interest in real
property located in Coweta County requires his disqualification under §§ 455(a),
(b)(4), and (b)(5). Draper asserts that Judge Camp seeks to curry favor with
Coweta County and the Coweta County Commissioners because (1) he filed a
zoning application in the past and (2) at some point he may file another zoning
application that, if granted, would increase the value of his real property.
We conclude that Judge Camp’s ownership interest in property in Coweta
County does not require recusal unless Coweta County and the Coweta County
Commissioners are parties to the case and unless his zoning application is
currently pending before Coweta County and the Coweta County Commissioners.
Because Coweta County and the Coweta County Commissioners are not parties to
this case, Judge Camp was not required to recuse because of his ownership interest
in property in Coweta County.
We note that our conclusion is consistent with that reached by the
Committee on the Codes of Conduct of the Judicial Conference of the United
States. The Committee addressed a similar situation under Canon 3C of the Code
of Conduct for United States Judges, which contains language almost identical to
20
the relevant provisions of § 455.15 The Committee advised that a judge who is
seeking action from a city zoning commission should recuse from cases involving
the zoning commission. Guide to Judiciary Policies and Procedures, Vol. II, Ch.
V, Compendium § 3.6-1(e) (2003). The Committee also advised, however, that
recusal was not required in cases involving the city or its other agencies unless an
appeal from the zoning commission was taken to the city council; in that case, the
judge would be required to recuse from cases in which the city was a party. Id.
The Committee further advised that a judge who has a dispute with a city agency
should recuse for a reasonable time after the dispute is fully resolved. Id.
This Court is not bound by the opinions of the Committee on Judicial Codes
of Conduct. In the past, however, courts have considered those opinions to some
15
Canon 3C(1) provides, in relevant part:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not limited to instances
in which:
(a) the judge has a personal bias or prejudice concerning a party . . .;
....
(c) the judge knows that the judge . . . has a financial interest in the
subject matter in controversy or in a party to the proceeding, or any
other interest that could be affected substantially by the outcome of
the proceeding;
(d) the judge . . .
(iii) is known by the judge to have an interest that
could be substantially affected by the outcome of the
proceeding . . . .
Code of Conduct for United States Judges Canon 3C(1) (2003).
21
extent.16 In this case, the line drawn by the Committee appropriately balances the
need for recusal where a judge’s impartiality might reasonably be questioned with
the need to discourage litigants from presenting “speculative and ethereal
arguments for recusal and thus arrogat[ing] to themselves a veto power over the
assignment of judges.” Thomas v. Trs. for Columbia Univ., 30 F.Supp. 2d 430,
431 (S.D.N.Y. 1998); see also Gas Utils. Co. v. Southern Natural Gas Co., 996
F.2d 282, 283 (11th Cir. 1993) (concluding that a “‘remote, contingent, and
speculative interest is not a financial interest within the meaning of the recusal
statute . . . nor does it create a situation in which a judge’s impartiality might
reasonably be questioned’”) (quoting In re Placid Oil Co., 802 F.2d 783, 786 (5th
Cir. 1986)).
Although Coweta County and the Coweta County Commissioners are not
parties to this case, Draper also alleges that Coweta County has a financial interest
in the outcome of the litigation because it purchased an insurance policy that
provides law enforcement liability coverage, which has a $25,000 deductible.
Under some circumstances, a judge’s interest in a non-party with a financial
16
See Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710, 715 (7th Cir.
1986) (“In matters of judicial ethics we are bound to give some weight to the view of the
committee of judges that the Judicial Conference of the United States has established to advise
federal judges on ethical questions.”); see also Weingart v. Allen & O’Hara, Inc., 654 F.2d 1096,
1107 (5th Cir. 1981) (citing committee advisory opinions regarding recusal in addressing § 455
recusal issue).
22
interest in a case may require the judge’s recusal from that case. See Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 867-68, 108 S. Ct. 2194, 2206
(1988) (concluding that judge who was a trustee of a university was required to
recuse from case in which the university had an interest, although the university
was not a party). However, there is no showing by Draper that Coweta County
would pay the deductible, as Officer Reynolds is sued in his individual capacity
and works for the Coweta County Sheriff’s Department and not the Coweta
County Commissioners. In any event, even assuming Draper has established that
Coweta County somehow has an indirect financial interest in the outcome of this
case, he has made no showing that the Coweta County Commissioners have any
interest. Even if both Coweta County and the Coweta County Commissioners
have an indirect financial interest in this case, Judge Camp’s recusal still would
not be required because his zoning application was withdrawn prior to the filing
date of this case, and the filing of any future zoning application is entirely
speculative.17
Third, there is no merit in Draper’s assertion that Judge Camp’s previous
affiliation with the Glover & Davis law firm suggests bias. Although Asa Powell,
17
In addition, Judge Camp’s general interest as a resident, taxpayer, and property owner in
Coweta County does not require recusal in cases where Coweta County or the Coweta County
Commissioners are not parties. See In re Houston, 745 F.2d 925, 929-30 (5th Cir. 1984).
23
the current Coweta County Attorney, is a member of that firm, Judge Camp has
not been affiliated with Glover & Davis for over 15 years.18 Accordingly, Judge
Camp’s impartiality could not reasonably be questioned on that basis.
Finally, Draper asserts in effect that Judge Camp is a racist. Draper sets
forth no facts to support these allegations. Draper’s unsupported, inflammatory
allegations alone would not cause a reasonable person to question Judge Camp’s
impartiality and do not entitle him to a new judge.
2. Section 144
Draper also asserts that Judge Camp was disqualified under 28 U.S.C.
§ 144. Section 144 provides, in relevant part:
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.
28 U.S.C. § 144 (emphasis added). Draper’s motion to disqualify Judge Camp
under § 144 fails for the same reasons it fails under § 455. Draper presents no
evidence that Judge Camp harbored a “personal bias or prejudice either against
18
The fact that Asa M. Powell, the current Coweta County Attorney, joined Davis &
Glover in 1992 – three and a half years after Judge Camp left the law firm in 1988 – makes this
argument even more frivolous. Further, assuming that a judge is no longer receiving financial
payment from a former law firm, a two-year recusal period is generally reasonable. Guide to
Judiciary Policies and Procedures, Vol. II, Ch. V, Compendium § 3.3-1(b) (2003).
24
him or in favor of any adverse party.” 28 U.S.C. § 144. Thus, the district court
did not err in denying Draper’s motion to disqualify the district court judge.19
IV. Conclusion
For all these reasons, we affirm the district court’s grant of summary
judgment in favor of Reynolds on Draper’s federal claims, its remand of Draper’s
state law claims to the state court, and its denial of Draper’s motion to disqualify
the district court judge.
AFFIRMED.
19
Draper also seems to assert that Judge Camp is disqualified because he wrote a letter to
the Coweta County Attorney on June 19, 2002. In the letter, Judge Camp explained that he
previously had recused himself from cases involving the Coweta County Commissioners during
the pendency of his zoning application. Judge Camp’s letter further explained that his zoning
application was no longer pending, that he did not intend to seek a change in the zoning
classification of his property in the future, and that, as a result, he did not intend to recuse from
further cases involving the Commissioners, and asked that Attorney Powell discuss this
information with his client and let him know if either he or his client objected. Nothing in this
letter requires Judge Camp’s disqualification.
25
Appendix 1
Draper: [Inaudible] Man, I don’t know. I can’t see no more.
Reynolds: Got your driver’s license?
Draper: Yeah. I got my driver’s license.
Reynolds: What’s wrong?
Draper: Man, you’re shining and blinding me, you know . . . . [Inaudible]
Reynolds: I’m shining at you to come out.
Draper: You ain’t saying nothing. You just . . . .
Reynolds: You got the window up.
Draper: Whatever. Of course I can’t. All I see is somebody standing there.
Reynolds: Look, you got the wrong answers out here, sir.
Draper: No I don’t . . . [Inaudible] I just got . . . [Inaudible] in my eyes . . .
Reynolds: Quit yelling at me. Quit yelling at me.
Draper: I ain’t doing nothing wrong. I’m just going down the road, minding my
own business.
Reynolds: You don’t know why I stopped you. And if you keep yelling at me,
you’re going to be in jail.
26
Draper: Oh, for what? Now I’m going to go to jail for what?
Reynolds: Cause of the way you’re acting out here . . .
Draper: Answer my question.
Reynolds: . . . You’re not going to sit here and yell at me, sir. I’m going to tell you
that right now.
Draper: Oh, but you’ll let another guy . . . [Inaudible] with a . . . I ain’t even going
to go there . . . [Inaudible] all right . . . here . . .
Reynolds: Now I need your log book. I need your bill of lading.
Draper: [Begins to walk toward truck cab, then turns back.] You need anything
else? I don’t know why you’re harassing me. You’re, first of all, I guess you’re . .
. [Inaudible]
Reynolds: Let me see your driver’s license and your insurance.
Draper: . . . Picking on me or something . . . I don’t know . . . [Inaudible] Maybe,
what . . . [Inaudible] I don’t know what your problem is . . . [Inaudible]
Reynolds: Sir, you need to go get your bill of lading and your proof of insurance.
And bring it back to me. I also need your log book.
Draper: I think this is . . . [Inaudible]
27
Reynolds: I also need your log book, sir.
Draper: [Inaudible] . . . I’ll bring everything you need, okay?
Reynolds: Sir, you’re going to. Thanks.
Draper: Oh, I know, and I will. But I don’t understand what your problem is with
me. You see, because I think you’re harassing me.
Reynolds: I think you need to go get what I asked you to get, sir.
Draper: How bout you just go ahead and take me to fucking jail, then, man, you
know, because I’m not going to kiss your damn ass because you’re a police
officer. I’m a law abiding . . . [Inaudible]
Reynolds: You need to calm down, sir.
Draper: I am calm. I am calm.
Reynolds: No you’re not.
Draper: I am calm.
Reynolds: No you’re not. You’re . . . [Inaudible] yelling at me and you’re
threatening me.
Draper: No, I’m not threatening you . . . [Inaudible] Why you saying I’m
threatening you? Did I say I was going to hurt you or something?
28
Reynolds: You ain’t going to. I’m not worried about that.
Draper: [Inaudible]
Reynolds: Cause of the way you’re acting. You’re putting me on the defensive.
Draper: How am I acting? I’m . . . [Inaudible]
Reynolds: I asked you to go get what I asked you to get, sir.
Draper: [Inaudible] . . . talking to me as if I’m a little child or something . . .
[Inaudible] That’s what I’m talking about . . . [Inaudible] have no respect for the
public out here or something . . . [Inaudible]
Reynolds: I haven’t disrespected you, sir.
Draper: You did. You . . . [Inaudible] shining a light in my face . . .
Reynolds: Sir . . .
Draper: . . . get out of the truck . . .
Reynolds: Go get what I asked you to get now, sir.
29