Free Request - 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

REQUEST 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 respectfully request that this Court recuse itself and not

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rule on any further matters in this case.

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This is the first time during Plaintiffs' counsel's legal career that he has filed such

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a motion, and he does so with regret. However, the Court has made it abundantly clear

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that a bias exists in this case, leaving counsel no choice.

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The Court's continuing display of irritation with Plaintiffs' counsel for filing a

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separate, related action (Ramirez v. Soto, CV04-002908), has extended to other pending

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matters. While the Court may disagree with counsel's interpretation of the issues

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supporting this Motion, transferring the case would allay any and all concerns Plaintiffs

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have that they will not receive a fair hearing before this Court.

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FACTS

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Plaintiff Jose Ramirez is a mentally handicapped young man who was physically

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and sexually assaulted at school. This case is based upon that horrific assault. At the time

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of the assault, Jose was attending a mainstream program at Cortez High School, in the Glendale Union High School District. In September 2000, Jose was physically and sexually assaulted by other mentally handicapped students during P.E. class in the school gym. During the assault, neither the P.E. teacher, nor the teacher's aide responsible for supervising the students, Dominic Guzman, were present. The handicapped students were completely without adult

supervision for some period of time during the scheduled class. There was a six-month delay in reporting the assault, until March 2001, because Jose was terrorized by his attackers; the boys who assaulted Jose threatened to kill him and his family if he reported what they had done. Jose developed a persistent anal rash, which became acute. During one treatment, the distraught child finally disclosed to his parents the cause of his anal injury. Jose's parents, Joe and Ana Ramirez, immediately confronted school employees. The police were called, and they interviewed the three boys who perpetrated the assault on Jose (Ruben Ortega, Daniel Ramon Navarro, and Angel Sanchez). A lawsuit was filed against the Glendale Union High School District, alleging it had failed to protect Jose. There was considerable delay in moving the case forward, due to Plaintiffs' unsuccessful efforts to locate the three perpetrators for depositions. The whereabouts of the three perpetrators was the subject of two hearings before this Court. Plaintiffs were finally able to locate one of the perpetrators, Ruben Ortega. Two key facts were obtained from his deposition: (1) that another one of the perpetrators was still enrolled at Cortez High School, although Defendants, throughout all the hearings before this Court, had consistently claimed to have no information at all about his whereabouts; and, (2) that school personnel had learned of the assault on the day it occurred (not six months later when Jose's parents confronted the school) and the three perpetrators and Jose were interviewed multiple times by school personnel. A fact of lesser importance for this motion is that Ruben Ortega reaffirmed the content of the police report, that is, that

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Jose had been physically and sexually assaulted in the locker room of the gym, and that none of the school personnel responsible for the boys' supervision was present. Outraged at defense counsel's duplicity, Plaintiffs' counsel filed a motion asking for sanctions, expecting the Court to be, at a minimum, angry at defense counsel's deception, which had, at that point, caused several months of delay and taken up many hours of the Court's time. The Court declined to sanction Defendants for deliberately withholding the location of the witnesses. When Ruben Ortega was finally deposed, he testified that the school personnel had learned of the assault on the day it happened, yet had not reported it until Jose finally disclosed it to his parents, and Mr. and Mrs. Ramirez confronted the school. Based upon that testimony, Plaintiffs filed a Motion to Amend the Complaint to add distinct claims against the individual school personnel for not complying with their statutory duty to report the assault, which had resulted in a compounding of Jose's injuries, especially when understood within the context of Jose's mental limitations and inability to cope with the assault. In considering the Motion to Amend, the Court inappropriately weighed the content of Ruben Ortega's testimony, and his credibility. Although excerpts of Ruben Ortega's deposition testimony showed that he had clearly testified against his own interests, during the hearing on Plaintiffs' Motion to Amend, the Court said it was "not convinced" by the testimony. The Court failed at any point to explain why the principles of Rule 15 would not apply in this matter. Although there was no argument that the new claims had been uncovered during discovery, the Court refused to allow Plaintiffs to amend their Complaint. LAW The Court's refusal to permit the Complaint to be amended violated the rule and the spirit of Rule 15, ARCP. The basis of the Court's ruling, that is, weighing the substance and credibility of a witness' testimony, went beyond the authority of the Court on such

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matters. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L.Ed. 2d 202, 4 Fed R. Serv 3d 1041 (1986). The denial of the Motion to Amend presented Plaintiffs' counsel with a dilemma: While the denial of the Motion to Amend was not yet an appealable Order, the statute of limitations continued to run on Plaintiffs' newly-discovered claims. ARS Sec. 12-821, et seq., requires that all state-based claims be filed within one year of discovery. This Court's denial of the Motion to Amend was not in the form of a final, appealable Order, and the statute of limitations was not tolled, necessitating an alternative course. To meet his professional obligations, Plaintiffs' counsel was left with only one alternative: File a new Complaint. The lawsuit was filed, and defense counsel promptly filed a Motion to Dismiss, citing as his only basis for dismissal this Court's ruling on the Motion to Amend. (See, Exhibit 1, transcript of June 7, 2005, hearing on Soto v. Ramirez, CV04-2908, before the Honorable Virginia A. Mathis). The second lawsuit, Ramirez v. Soto, was assigned to the Hon. Virginia Mathis, who specifically reviewed the ruling made by this Court in its decision on the Motion to Amend the Complaint. Judge Mathis heard Plaintiffs' counsel's reasons for filing the second lawsuit, commented specifically that this Court had inexplicably "prejudg[ed] [the] evidence" in its ruling (Exhibit 1, page 8, lines 20-21), and did not cite any legal obstacle that would have prevented amending the original Complaint. Based on this Court's ruling on the Motion to Amend, Judge Mathis denied Defendants' Motion to Dismiss outright, acknowledging not only the peculiar ruling on the Motion to Amend, but also the untenable situation in which Plaintiffs' counsel found himself. (Exhibit 1, page 11, lines 1-2). Discussion was held on the record regarding the lack of Rule 54(b) language in this Court's written Order, precluding an immediate appeal by Plaintiffs. (Exhibit 1, page 11, lines 9-23). Such language would have given Plaintiffs an avenue to avoid the running of the statue of limitations.

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Judge Mathis also refused to transfer Ramirez v. Soto to this Court, recognizing that this Court had the lower numbered case and the ultimate authority to consolidate the cases. (Exhibit 1, page 12, lines 1-3). This Court did choose to consolidate the cases. Plaintiffs' counsel believes this Court improperly weighed the substance of Ruben Ortega `s testimony, and integral to this, Ruben's credibility (which in this case would have included his veracity, his ability to recall, as well as any bias he would have in protecting his own interests). Ruben Ortega's admission of the facts of the assault during his deposition testimony was supported by the content of his earlier police interview, during which he described the assault and his role in the assault. His deposition testimony confirmed the facts. ORDER TO SHOW CAUSE After the two cases were consolidated, this Court set a status conference on March 8, 2006. During that hearing, the Court announced it was setting an Order to Show Cause

hearing on April 7, 2006, to consider sanctions to be imposed on Plaintiffs' counsel for filing the second lawsuit. In spite of case law, rules of court, and Judge Mathis' ruling, this Court made it clear that it intends to sanction counsel. The fact of sanctions is a foregone conclusion, since this Court has already instructed defense counsel to submit a statement of attorney's fees. It was evident at the hearing March 8, 2006, that this Court's displeasure with what it perceives as Plaintiffs' counsel's evasion of its previous ruling has adversely affected the Court's view of the entire case. Addressing Defendants' pending Motion for Summary Judgment, the Court, sua sponte, ordered that the already-scheduled deposition of a key witness, Dominic Guzman, the teacher's aide, would not be taken before the oral argument on the Motion for Summary Judgment. This ruling was made in spite of the fact that the Court had previously extended discovery to allow Mr. Guzman's deposition, since Defendants had deliberately withheld information about his whereabouts. Dominic Guzman was the teacher's aide responsible for supervising the students involved in Jose's assault. All along it has been known that

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Mr. Guzman was the person on campus charged with continually monitoring the activities of these young men, one of whom is blind, and one of whom has been suspended from school on three different occasions for assaulting other students. The Court's ruling was made without regard to the prejudice to Plaintiffs, who have had no part in delaying the scheduling of this deposition. Defendant School District had always represented that Mr. Guzman voluntarily resigned his position and moved to an unknown location, believed to be California. Recent disclosures showed inconsistencies regarding the information about Mr. Guzman and it was finally determined that Mr. Guzman "resigned" three days after the School District conducted its March 2001 investigation of the assault. When Defendants persisted in their representation that Mr. Guzman's whereabouts were completely unknown, Plaintiffs pressed for Mr. Guzman's last known address, so that they could attempt to locate him. Defendants then admitted, lo and behold, that Mr. Guzman never left Phoenix; in fact, he had never moved from his original address on file with Defendant School District. Defendants also emphasized, in that same disclosure, that Plaintiffs were not permitted to contact Mr. Guzman. Plaintiffs and Defendants coordinated Mr. Guzman's deposition through the Maricopa County Sheriff's Office, as Mr. Guzman was at the time incarcerated in the jail facility's psychiatric ward. The deposition was scheduled for March 23, 2006. During the discussion setting the hearing on sanctions, the Court then, sua sponte, cancelled Mr. Guzman's deposition. Plaintiffs' counsel explained to the Court the

relevancy of Mr. Guzman's testimony, especially as it related to the pending Motion for Summary Judgment, but the Court advised counsel that he could "avow" at the hearing on the Defendants' Motion for Summary Judgment as to the content of Mr. Guzman's expected testimony.

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Plaintiffs' counsel is at a loss to understand how, either substantively or procedurally, avowals of the testimony of a crucial witness would be acceptable to the Court at an important hearing. Avowals are not substantive evidence for an appeal. Also, counsel can only speculate about the circumstances surrounding Mr. Guzman's absence from the gym, what transpired when Mr. Guzman returned, and that his termination from the School District was the result of his failure to perform his job. If this Court proceeds with the argument on the Motion for Summary Judgment using avowals, then based upon Defendants' own documents, Plaintiffs' counsel could avow that Defendant School District considered the potential danger of these students to themselves and others and charged Mr. Guzman with "constantly monitoring" these mentally handicapped young men. The perpetrators testified that Mr. Guzman was not present during the assault on Jose Ramirez in the school's locker room. Mr. Guzman would acknowledge that, because of the real danger, constant monitoring of the boys was critical, especially outside the formal classroom setting. Either avowed response would defeat Defendants' Motion for Summary Judgment, as these circumstances fit easily within the basic principles of tort law: that duty is commensurate with danger perceived. Unless, as it appears, the Court intends to ignore this and rule that experts are required to interpret the facts of this case. Preemptively vacating the scheduled deposition of Mr. Guzman, and ordering that the substance of Mr. Guzman's testimony can be made by avowal, establishes that this Court has already decided this matter. This Court's attitude towards the pending Motion for Summary Judgment has been adversely affected by the Court's view that Plaintiffs' counsel somehow disobeyed the Court by filing the second lawsuit. The Court's personal anger with Plaintiffs' counsel has affected the right of Plaintiffs to have a fair proceeding. ... ... ...

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WHEREFORE, Plaintiffs respectfully request that this Court recuse itself from this case; and, transfer the matter to another Court for all further proceedings. RESPECTFULLY SUBMITTED this 29th day of March, 2006. /s/ Edward D. Fitzhugh Edward D. Fitzhugh Attorney for Plaintiffs

9 I hereby certify that on March 29, 2006, I electronically 10 transmitted the foregoing to the Clerk's Office using the CM/ECF 11 System for filing and transmittal of a Notice of Electronic Filing 12 to the following CM/ECF registrants: 13 J. Steven Sparks, Esq. Sanders & Parks, P.C. 14 3030 N. Third Street, Ste. 1300 Phoenix, Arizona 85012-3099 15 Attorneys for Defendants 16
___/s/S.J. Odneal____

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