Myer Sankary v. Greta Curtis ( 2015 )

FILED
NOT FOR PUBLICATION APR 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MYER J. SANKARY, No. 13-55040
Plaintiff - Appellee, D.C. No. 2:12-cv-10168-R-PLA
And
MEMORANDUM*
CALIFORNIA COURT OF APPEAL
SECOND APPELLATE DISTRICT,
Division Five, Presiding Justice Paul
Turner,
Plaintiff,
v.
JUSTIN RINGGOLD-LOCKHART,
Defendant,
And
GRETA CURTIS, Esquire, Defendants
Non-Parties; et al.,
Defendants - Appellants.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted April 9, 2015**
Pasadena, California
Before: REINHARDT, McKEOWN, and M. SMITH, Circuit Judges.
The Appellants, Greta Curtis, Law Offices of Greta Curtis, Nina Ringgold,
and the Law Offices of Nina Ringgold, appeal from the district court’s order
remanding this action to state court. The Appellants challenge: (1) the order
transferring this case to the docket of Judge Manuel Real; (2) the denial of the
Appellants’ motion to disqualify Judge Real; (3) the district court’s decision to
remand; and (4) the district court’s order assessing a fine against Nina Ringgold for
civil contempt.
We have jurisdiction to review the remand order pursuant to 28 U.S.C. §
1447(d). We have jurisdiction to review the other issues raised on appeal pursuant
to 28 U.S.C. § 1291. We reverse the fine against Nina Ringgold, and affirm in all
other respects.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
The Appellants have not pointed to any irregularity in how the case was
assigned. The case was assigned to Judge Real because it was related to an earlier-
filed case on Judge Real’s docket.
Judge Philip Gutierrez did not err in denying the Appellants’ application to
disqualify Judge Real. 28 U.S.C. § 144 provides that “if 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 a judge shall proceed no further . . . .” See also 28
U.S.C. § 455(a). A judge should be recused if “a reasonable person with
knowledge of all the facts would conclude that the judge’s impartiality might
reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.
2008) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)).
On appeal, the Appellants cite a number of previous interactions with Judge Real
that they contend cast doubt on the judge’s impartiality. These interactions did not
indicate that Judge Real held a “deep-seated favoritism or antagonism that would
make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555
(1994). It was therefore not an abuse of discretion to conclude that disqualification
was not warranted.
The district court correctly concluded that this case was not removable under
28 U.S.C. § 1443.
3
A petition for removal under § 1443(1) must satisfy the two-part test
articulated by the Supreme Court in Georgia v. Rachel, 384 U.S. 780, 788-
92, 794-804, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966) and City of Greenwood,
Miss. v. Peacock, 384 U.S. 808, 824-28, 86 S. Ct. 1800, 16 L. Ed. 2d 944
(1966). “First, the petitioners must assert, as a defense to the prosecution,
rights that are given to them by explicit statutory enactment protecting equal
racial civil rights.” California v. Sandoval, 434 F.2d 635, 636 (9th Cir.1970).
“Second, petitioners must assert that the state courts will not enforce that
right, and that allegation must be supported by reference to a state statute or
a constitutional provision that purports to command the state courts to ignore
the federal rights.” Id.
Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006). The case was not
removable under 28 U.S.C. § 1443(1) because the Appellants did not identify a
state law that prohibited them from enforcing their civil rights or “an equivalent
basis . . . for an equally firm prediction that the defendant would be ‘denied or
cannot enforce’ the specified federal rights in the state court.” Rachel, 384 U.S. at
804.
This case was also not removable under 28 U.S.C. § 1443(2), which “is
available only to federal officers and to persons assisting such officers in the
performance of their official duties,” and to state officers. City of Greenwood v.
Peacock, 384 U.S. 808, 815, 824 n.22 (1966). The Appellants did not demonstrate
that they were state or federal officers or persons assisting such an officer in the
performance of his or her official duties.
4
The district court erred by awarding an unconditional fine against Nina
Ringgold to redress civil contempt. Punitive sanctions are not available in civil
contempt proceedings. Hicks v. Feiock, 485 U.S. 624, 632-33 (1988). The
unconditional fine was punitive because it was not compensatory and did not
afford Nina Ringgold an opportunity to purge contempt. See United Mine Workers
of Am. v. Bagwell, 512 U.S. 821, 829 (1994) (“[A] ‘flat, unconditional fine’
totaling even as little as $50 announced after a finding of contempt is criminal if
the contemnor has no subsequent opportunity to reduce or avoid the fine through
compliance.” (quoting Penfield Co. of Cal. v. SEC, 330 U.S. 585, 590 (1947))).
Because the fine was punitive, it could only be imposed if Nina Ringgold
was afforded the protections the Constitution requires in criminal proceedings.
Hicks, 485 U.S. at 632. She was not.
We therefore reverse the fine against Nina Ringgold.
We deny the Appellants’ motion for judicial notice (Dkt. No. 47).
AFFIRMED IN PART, REVERSED IN PART.
5