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Dunn v. Secord

United States District Court, W.D. Wisconsin

September 30, 2017

PHILLIP S. DUNN, Plaintiff,
v.
RON SECORD, DAN ULRICH and NATHAN POKE, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Pro se plaintiff Phillip Dunn brought this lawsuit under 42 U.S.C. § 1983, asserting claims against various public officials and the City of La Crosse, Wisconsin. At different stages of the case, the court dismissed most of these claims as a matter of law, but the court permitted plaintiff to submit to a jury his claim that defendants Ron Secord, Dan Ulrich and Nathan Poke (all officers for the La Crosse Police Department) violated his Fourth Amendment rights by entering his locked bedroom without a warrant. Ultimately, the jury found in defendants' favor (dkt. #88) and the court entered judgment in accordance with that verdict. (Dkt. #94.) Plaintiff subsequently moved for a new trial (dkt. #101) and for the court's recusal (dkt. #102). For the reasons discussed below, the court will now deny both motions.

         BACKGROUND

         The claim the jury considered arose out of a response to a tip from a local resident of possible drug activity at 1929 Victory Street in La Crosse, Wisconsin. Defendants Secord, Ulrich and Poke went to the residence to investigate. After they arrived on the scene, a tenant at the residence, John Addis, allowed defendants to enter the home without a warrant. After speaking with Addis and looking around the common areas of the house, defendants kicked down a locked bedroom door. Defendants found plaintiff inside the room and arrested him for drug possession. The question at trial was whether defendants were justified in entering the bedroom without a warrant.[1]

         OPINION

         I. Motion for Recusal

         Plaintiff asks the court to recuse itself under 28 U.S.C. § 455, which requires a federal judge to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned, " § 455(a), or if he "has a personal bias or prejudice concerning a party, " § 455(b). Plaintiff supports his motion with declarations from himself and a relative who reports attending the trial. (Dkt. ##101, 102.)

         Most of plaintiff's grounds for recusal relate to rulings by the court during the course of the trial. As an initial matter, plaintiff (perhaps understandably) overlooks significant rulings that went in his favor, such as the denial of part of defendants' motion for judgment as a matter of law and the decision over defendants' objection to instruct the jury that a tenant at the residence, John Addis, had not given his consent to enter the bedroom where plaintiff was located. Instead, plaintiff seems to be objecting primarily to a ruling related to the "protective sweep" doctrine, which the court will discuss in the next section. In any event, adverse rulings generally are not grounds for seeking recusal, Collins v. Illinois, 554 F.3d 693, 697 (7th Cir. 2009), and plaintiff fails to identify any extraordinary circumstances in this case suggesting that any of the court's rulings show bias against him, nor am I aware of any.

         Plaintiff's only other ground for recusal is a comment made by the court at the conclusion of the trial, after the jury returned its verdict and was excused from the courtroom. In particular, the court acknowledged the difficult and dangerous work that police officers do and mentioned an incident in which a high school friend (not a relative, as plaintiff says in his declaration) was killed when responding to a domestic dispute. Plaintiff says that the comment shows "why the Judge would side with the defendants rather than be impartial." (Dunn Decl. ¶ 10, dkt. #104.) Plaintiff does not explain his objection further, but the court sees two possible bases for the objection: (1) the experience of my friend would make it difficult for the court to be impartial; and (2) regardless whether the court's relationship with the friend would show bias, the court's statement does.

         As an initial matter, plaintiff overlooks the context in which the court made the statement. The court had already acknowledged that plaintiff raised legitimate questions as to whether defendants should have acted as they did. It was only after those statements that the court also acknowledged that it understood why defendants (and the jury) adopted a different view.

         In any event, the law is clear that a judge's life experiences or relationships or sympathetic statements are generally not grounds for recusal. Carlson v. Bukovic, 621 F.3d 610, 623 (7th Cir. 2010) (referring to defendant in civil rights case as "this poor cop" during pretrial conference did not require recusal because it did "not display a deep-seated favoritism or antagonism that would make fair judgment impossible") (internal quotations omitted); United States v. Mansoori, 304 F.3d 635, 667 (7th Cir. 2002) (recusal not required in criminal drug case when judge's daughter was dating agent in Drug Enforcement Administration); Few v. Kerby, 39 F.3d 1462, 1479 (10th Cir. 1994) (recusal not required when judge's brother-in-law could have benefitted financially from particular outcome); United States v. Fisher, No. 11-40054-JAR, 2011 WL 4809806, at *4 (D. Kan. Oct. 11, 2011) (judge not required to recuse herself in drunk driving case even though judge's brother was killed by drunk driver); In re Disqualification of Farmer, 2014-Ohio-2046, ¶ 2, 10 N.E.3d 718 (recusal not required when judge was "married to a sergeant in the Alliance Police Department who is in a supervisory position over the officers who made the arrest in this case and are listed as witnesses for the trial"); Com. v. Urrutia, 653 A.2d 706, 710-11 (Pa. Sup. Ct. 1995) (recusal not required in stalking case even though judge had been victim of stalking in the past).

         In Del Vecchio v. Illinois Dep't of Corr., 31 F.3d 1363, 1372 (7th Cir. 1994), the court explained why a judge's life experiences generally are not grounds for recusal:

In the real world, "possible temptations" to be biased abound. Judges are human; like all humans, their outlooks are shaped by their lives' experiences. It would be unrealistic to suppose that judges do not bring to the bench those experiences and the attendant biases they may create. A person could find something in the background of most judges which in many cases would lead that person to conclude that the judge has a "possible temptation" to be biased. But not all temptations are created equal. We expect-even demand-that judges rise above these potential biasing influences, and in most cases we presume judges do. . . [O]nly a strong, direct interest in the outcome of a case is sufficient to overcome that presumption of evenhandedness.

         Thus, in Del Vecchio, 31 F.3d at 1675, the court concluded that a judge was not required to recuse himself in a criminal case even though that judge had been the prosecutor in a ...


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