Free Reply - District Court of Arizona - Arizona

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EDWARD D. FITZHUGH P.O. Box 24238 Tempe, Arizona 85285-4238 (480) 752-2200 Bar No. 007138 Attorney for Plaintiffs IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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vs. Joe Ramirez and Ana Ramirez, Individually and as Parents and Legal Guardians of Jose Ramirez; Plaintiffs, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV03-0060 PHX-ROS REPLY IN MOTION FOR RECUSAL

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Glendale Union High School District No. 205; John Doe and Jane Doe I-X; ABC Corporations I-X; and XYZ Partnerships I-X, Defendants.

(Assigned to the Honorable Roslyn O. Silver)

COME NOW Plaintiffs and submit their Reply in Motion for Recusal.

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Pursuant to 28 USC 455(a), a judge must recuse herself if her impartiality might

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reasonably be questioned. The standard is whether a reasonable person would perceive

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a risk that the judge will resolve the issue on a basis other than on the merits. The

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standard is that of a well-informed, thoughtful observer, rather than an unduly sensitive

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one. See, Liljeberg v. Health Servs. Aquisition Corp., 486 US 847, 865 (1988).

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The issue is not simply that the Court intends to sanction counsel, without legal or

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factual basis. Added to this is the Court's irritation with counsel, which has clearly affected

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other crucial issues in this case.

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Addressing Defendant's pending Motion for Summary Judgment, the Court, without

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explanation, cancelled the pending deposition of Dominic Guzman, who is far and away

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the key witness in this case, informing Plaintiffs' counsel that he could make avowels of

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what Mr. Guzman's testimony would be. The Court ordered the use of avowals, which

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counsel believes are almost meaningless for the purpose of these proceedings and appeal.

Case 2:03-cv-00060-ROS

Document 129

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The Court's bias was then manifested when the Court asked Plaintiffs' counsel at the oral argument on the Motion for Summary Judgment, specific questions about the bases of Plaintiffs' claims (i.e., the lack of training, or policy or procedure). Without the deposition testimony of Dominic Guzman, Plaintiffs' counsel could rely only on the proffer of avowals, and was not in a position to answer the Court's inquiries fully and completely. At the oral argument on April 27, 2006, the Court also made an issue of Mr. Guzman's training and state of mind on the day of the assault. The Court questioned why Mr. Guzman was not present during the assault, and then further asked if Plaintiffs were contending this was a reflection of the school district's inadequate training; or a policy that Mr. Guzman believed allowed him to get away with not being present to do his job; or whether the P.E. teacher did not believe he had to be present or insure that Mr. Guzman would be present to supervise the young men. The Court stated it would rule on Plaintiffs' 1983 claim based on "the law." Yet, the very issues that the Court saw as determinative were the same issues that lacked deposition testimony. Plaintiffs' counsel candidly admitted at the oral argument that Mr. Guzman's absence from the scene of the assault, as well as the absence of the P.E. teacher, could be evidence of inadequate training, a defective practice, and/or a defective policy. Plaintiffs were without Mr. Guzman's sworn testimony on these issues. Plaintiffs' counsel could have avowed that Mr. Guzman was not trained; or that, disobeying a policy, he regularly left the young men unattended; or, that Defendant had not instituted a policy of protecting these young men from at least one in their group who had a repeated history of violent assaults on his fellow students. On March 8, 2006, the Court set a hearing on the sanctions scheduled for April 7, 2006, three weeks prior to the oral argument on the Motion for Summary Judgment. Plaintiffs filed their Request for Recusal asking that the Court recuse itself and not hear

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any further matters. The Court then postponed the sanctions hearing until after the hearing on Defendant's Motion for Summary Judgment. The Court intends to hear arguments and rule on the Motion for Summary Judgment prior to the hearing on sanctions or ruling on the request for recusal. The shuffling and rescheduling in this case causes Plaintiffs legitimate concern and further demonstrates the Court's bias. Aside from appearances, the standard for recusal is that, if an issue is "close," the Court must recuse itself. Bryce v. Episcopal Church of the Diocese of Colorado, 289 F3d 648, 659 (10th Cir. 2002). WHEREFORE, Plaintiffs respectfully request that this Court recuse itself from this case. RESPECTFULLY SUBMITTED this 28th day of April, 2006. /s/ Edward D. Fitzhugh Edward D. Fitzhugh Attorney for Plaintiffs

18 I hereby certify that on April 28, 2006, I electronically 19 transmitted the foregoing to the Clerk's Office using the CM/ECF 20 System for filing and transmittal of a Notice of Electronic Filing 21 to the following CM/ECF registrants: 22 J. Steven Sparks, Esq. Sanders & Parks, P.C. 23 3030 N. Third Street, Ste. 1300 Phoenix, Arizona 85012-3099 24 Attorneys for Defendants 25
___/s/S.J. Odneal____

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