Case 1:08-cv-01971-WSD Document 13 Filed 07/31/2008 Page 1 of 13

i 40 RLED IN CLERKS OFFICE

U.S. D .C . Atlanta

J UL 3 1 2008
JAMES N . H T N. C E
IN THE UNI TED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORG
Atlanta- Divisio n

JAMES B. STEGEMAN,
JANET D. MCDONALD, CIVIL ACTION
Plaintiffs FILE NO: 1 :08-CV-01971-WSD

vs.

SUPERIOR COURT et., al.,

Defendants

PLAINTIFFS' MOTION TO RECUSE OR DISQUALIFY

COMES NOW the above named Plaintiffs, James B . Stegeman and Janet D .

McDonald and timely moves to recuse/disqualify Judge William S . Duffey, Jr .

from the abo ve entitled matter pursuant to U .S.C. 28 §455 .

Plaintiffs file their Brief In Support contemporaneously herewith .

Respectfully submitted this 3 & day of July, 2008,

J S B. S
821 S
3

ANET D . MCDONALD, Pro Se

821 Sheppard Rd .
Stone Mountain, GA 30083
(770) 879-8737
 Case 1:08-cv-01971-WSD Document 13 Filed 07/31/2008 Page 2 of 13
L.J

IN THE UNTIED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA,
Atlanta Division

JAMES B . STEGEMAN,
JANET D. MCDONALD,
Plaintiffs CIVIL ACTION
vs. FILE NO.: 1 c 08-cv-19 71-WSD

SUPERIOR COURT, et., al .,

De fendants

CERTIFICATE OF SERVICE

I Certify that I have th is 30th day of July, 2008, served a t rue and correct
copy of the foregoing Plaintiffs' Motion and Brief In Support of Motion To

Recuse or Disqualify upon Defendants, through their attorney on file by causing

to be deposited with U .S.P .S ., First Class Mail, proper postage affixed thereto,

addressed as follows :

Daniel S. Reinhardt Devon Orlan d

Troutman Sanders, LLP State of Georgia Dept . of Law
Bank of America Plaza -- Suite 5200 40 Capitol Square, S .W.
600 Peachtree Street, NE Atla.WA, GA 30334-1300
Atlanta, GA 30308-2216

B ., S Se

JANET Pro Se
821 Sheppard Rd.
Stone Mountain, GA 30083
(770) 879-8737

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 Case 1:08-cv-01971-WSD Document 13 Filed 07/31/2008 Page 3 of 13

E
FM IN CLERKS OFFICE
U.3 . D. C. Atlanta

8
IN THE UNITED STATES DISTRICT COURT JUL 3 1 20
FOR THE NORTHERN DISTRICT OF GEORGIAAA ME S N, H , ,CL K
Atla nta Division

JAMES S STEGEMAN I
JANET D. MCDONALD, CIVIL ACTION
Plaintiffs FILE NO : 1 :08-CV-01971-WSD

vs,

SUPERIOR COURT et., al.,

Defendants

PLAINTIFFS' BRIEF IN SUPPORT OF

MOTION TO RECUSE OR DISQUALIFY

Plaintiffs file this Brief in Support of Plaintiffs Motion to Recuse or

Disqualify Judge William S . Duffey, Jr . pursuant to U.S.C. §455, and Marshall v.

Jerrico Inc., 446 US 238, 242, 100 S .Ct. 1610, 64 L . Ed. 2d 182 (1980) .

"The neutrality requirement helps to guarantee that life, liberty,

or property will not be taken on the basis of an erroneous or
distorted conception of the facts or the law . See Mathews v.
Eldridge, 424 U.S. 319, 344 (1976) . .., by ensuring that no person
will be deprived of his interests in the absence of a proceeding in
which he may present his case with assurance that the arbiter is
not predisposed to find against him ."

The above is applicable to this court by application of Article VI of the

United States Constitution and Stone v Powell, 428 US 465, 483 n. 35, 96 S . Ct .
 Case 1:08-cv-01971-WSD Document 13 Filed 07/31/2008 Page 4 of 13
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3037, 49 L . Ed. 2d 1067 (1 976). "State courts, like federal courts, have a

constitutional obligation to safeguard personal liberties and to uphold federal law ."

The facts as stated clearly satisfies the standards of the statute since any

reasonable person, apprised of these circumstances, would reasonably question the

Court's impartiality . See Lucky v. United States, 510 U.S . 540, 114 S .Ct. 1147,

127 L.Ed. 2d 474 (1994). The plain language of 28 U. S .C. 455(b)(2) is clear :

28 U.S .C . 455(b)(2) :
(a) Any justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.

I. FACTS

As the Defendants were quick to point out to the court, Plaintiff Stegeman '

has twice been before Judge Duffey . The first was a case Removed from Superior

Court by Defendants :2 Civil Action File No . : 1 :06-cv-247-WSD, Stegeman/

McDonald v. Wachovia Bank, N.A., et, a1..3 The second case, Civil Action File

No. : 1 : 06-cv-2954-WSD, Stegeman v. Georgia, A, al., is currently before the

Eleventh Circuit Court of Appeals, Appeal No. : 07-X3540-BB .

In the following, Plaintiffs show that Judge Duffey, Jr. is either bias and

prejudice against Pro Se litigants, against disabled pro se litigants, or against

' a disabled adult proceeding Pro Se

2 Judge Duffey Remanded the case .
3 Referred to hereinafter as "Wachovia"

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Plaintiff Stegeman personally ; and that a disinterested lay observer would doubt

the judge's impartiality .

"Disqualification is required if an objective observer would

entertain reasonable questions about the judge's impartiality . . .to
conclude that a fair and impartial hearing is unlikely, the judge
must be disqualified ." [Emphasis added] . Liteky v. U.S., 114
S .Ct. 1147, 1162 (1994) .

" . . .an objective, disinterested, lay observer fully informed . of the

facts underlying the grounds on which recusal was sought would
entertain a significant doubt about the judge's impartiality". See
Parker v. Connors Steel Co., 855 F .2d 1510 (11 " C ir.) (1988)
citing Potashnick v. Port City Cons Co ., 609 F .2d 1101, 1111
(Sd' Cir.), cert. deni ed, 449 U.S. 820, 101 S .Ct. 78, 66 L.Ed. 2d
22 (1980).

"justice must give the appearance of justice" Levine v. United

States, 362 U.S . 610, 80 S.Ct. 1038 (1960), citing 4ffutt v.
United States, 348 U.S. 11, 14, 75 S . Ct. 11, 13 (1954) .

A. The Wachovia Case

Plaintiffs acting pro se, had shown through documented evidence the

following facts to Judge Duffey before the case was Remanded to Superior Court .

Wachovia had purposely violated procedures in both Superior Court and U .S.

District Court, had improperly Removed the case,4 and had defaulted in both

4 Judge Duffey's Remand Order clearly stated that the case had been "improperly
removed", but failed to state the grounds for which he considered the case
"improperly removed" . Plaintiffs showed that on the 30'hday after being served
with Summons and Complaint, Wachovia had intentionally filed Notice of
Removal to the wrong Judge and thereby had not actually Removed the case .

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Courts ; Judge Hunter acting without jurisdiction, closed with strict stipulations to

reopen, the Superior Court case while Removal was pending ; Judge Hunter had

allowed several proeeduraJl violations before Wachovia filed Notice of Removal .

Judge Duffey failed to address these issues and failed to state pertinent facts

in his Remand Order, thereby allowing the Superior Court to also ignore the same

facts . Judge Duffey's actions and/or inactions resulted in Wachovia's ability to

further manipulate Superior Court and processes of the Court ; and further

violations of the Due Process Clause b y' both Wachovia and Superior Court .

"The Due Process Clause serves two purposes . . . One is to

produce, through the use of fair procedures to prevent the
wrongful deprivation of interests ; . . .the other is a guarantee of
basic fairness, i .e. : to make people feel that they have been
treated fairy ." Lectric Law Library http://www .lectlaw .com

B. Stegeman v. Georgia, et ., al.,

Plaintiff Stegeman, a Federally disabled adult, having been denied liberty

and property interests, meaningful access to the Courts, denied Rights and

immunities, filed suit against the State of Georgia and other entities as a Pro Se

litigant .

Further, Wachovia failed to file a timely pleading with their Notice of Removal
which was also improper, Plaintiffs filed Motion for Default which was ignored,
and the Remand Order failed to say anything about the failure to file aa timely
pleading.

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Plaintiff Stegeman provided unrebutted evidence to the Court that he had

been denied Programs for which he was qualified that would have protected his

interests . Stegeman is a disabled person, thereby a member of a protected class .

Judge Duffey's Order and Opinion dismissing the case denied 5 Stegeman's

disabilities.

Numerous times Plaintiff Stegeman requested appointment of counsel, at

one point Stegeman requested that the appointment be for the sole purpose of

asking legal questions to ; all requests were ignored .

Plaintiff Stegeman filed Motion to Waive Pacer fees only for viewing his

own case . Seven months after filing the Motion, when the case was dismissed,

fudge Duffey DENIED the Motion . The Motion was Denied saying :

"Plaintiff requests . . .exempting him from payment of PACER

User Fees . . .Pro se litigants are required to file documents with
the Court in paper form. If Plaintiff desires free access to the
electronic docket, it is available at the Clerk's Office ."

In other words, Stegeman's disability status and physical limitations didn't matter

and that he could go downtown to keep up with his case even though other

5 Judge Duffey refused to address the disability altogether . This could be for
several reasons ; Stegeman had asked for the appointment of counsel which Judge
Duffey never addressed ; Stegeman showed that statute of limitations should be
tolled for multiple disabilities; Stegeman had shown that he had attempted to gain
legal assistance through every entity that provides legal-aid or pro bono services
and had been turned down.

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Plaintiffs can afford to keep up with their case via computer access . Judge Duffey

treated Stegeman differently than others in similar situations .

Judge Duffey sits on the Supreme Court's Equal Justice Commission

Committee On Civil Justice . The "Minutes" of the December 4, 2006 Meeting:

" . . .in August 2006, the ABA endorsed the right to counsel in
certain civil cases, also known as the civil Gideon . . .The kinds of
cases of which the ABA endorses a civil right to counsel . . ."
"The ABA's principles endorse the inclusions of all persons in a
state's system for the delivery of civil legal aid, including . . .the
disabled . . . vulnerable populations . . ."
"Fourth, . . .promote . . .the judiciary and court personnel in
reforming rules, procedures and services to expand and facilitate
access to justice-to support pro se litigants ."
"Clients that most touch the public's sympathy are
children. . . . and the disabled ."

"Ms. Fairbanks. . .defined an equal justice community as `a group

of individuals and organizations united through common,
expressed vision and a shared set of values, who are bound
together by a sense of fidelity to the promise of justice and
equality, and who are willing to put personal, professional and
organizational allegiances aside in pursuit of a common justice
ideal."'

"An equal justice community requires. . . `You have to walk the

walk, not just talk the talk ."'.

The January 26, 2007 Meeting Minutes :

"Judge Duffey believed that it would greatly benefit the system if

pro se individuals were represented in court ."
"Judge Duffey . . .expressed doubt as to the wisdom of providing
free legal service in the justice system ."

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From the Minutes of May 23, 2007 :

"The final vision statement is as follows :

`The cornerstone of a free society is a population that has faith

that its legal system will assist them in their daily lives and a
judiciary that will resolve disputes in a fair and impartial manner .
We envision a civil legal assistance system which is inclusive,
responsive and accountable to the needs of all . To be responsive,
each person should have timely access to services, information
and tools to promote their interest and present their case to an
informed, responsible and accountable judiciary ."'

Judge Duffey's Order and Opinion dismissing the case shows obvious

prejudicelbias against pro se litigants, and/or discrimination against disabled

persons, and/or personal prejudice bias against Plaintiff Stegeman . In District

Court especially, the Court most often addresses when a lit igant is Pro Se and /or

disabled, the Judge will usually reference or state something similar to :

"Based on these allegations and in deference to Plaintiff s fro se

status, the Court finds . . ." Howard v. Wiley, et., al., N.D.Ga.
1 :06-CV-00648-TWT (2007), pg.6

"The Court has construed Plaintiff's claims liberally in view of

Plaintiffs' pro se status ." Stanley v. Stready, N.D.Ga. 1 :05-cv-
42057-WSD (2006), pg .5 fn6

When addressing a litigant that is not a person within a protected

class:

"Plaintiff is not a member of a class that is afforded special

protection under . . .or that Congress intended to protect when it
passed the st atute." Sanders v. Langley, N.D.Ga . 1 :03-CV-
0163 1 -wsD (2006), pg . 13, fn7
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Plaintiff Stegeman filed Notice of Appeal to The United States Eleventh

Circuit Court of Appeals, then filed Motion To Proceed On Appeal In Forma

Pauperis . Judge Duffey, Jr . denied the Motion on the grounds of frivolous . The

Appeal is currently pending, Plaintiffs believe this gives Judge Duffey a personal

interest in the present case .

C. Constitutional Rights

The history of bias and prejudice against pro se litigants within the Courts is

long . Stephen Elias who had been with Nolo Press, the nation's leading publisher

of self-help law books, back in 1997, in an article Bias Against Pro Per

Litigants . . . stated:

"From the moment they first contact the court system, most
people who want to represent themselves, without a lawyer,
encounter tremendous resistance . Within the closed universe of
the courts, this bias is as pernicious as that based on race, ethnic
origins or sex ."

"People who cannot afford a lawyer are a rebuke to the

organized bar's monopoly . . ., because that monopoly is
morally-if not legally-justified-the ABA has admitted that
100 million Americans can't afford lawyers ."

" ... the right to file a lawsuit pro se is one of the most important
rights under the constitution and laws ." Elmore v. McCammon
(1986) 640 F . Supp. 905

Judge Becker's personal interest caused Dismissal of Plaintiffs' Superior Court

case in retaliation against Plaintiffs

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At present, Plaintiffs still believe in the judicial system in this Country, in

their pursuit of truth and justice, and their quest to seek redress within the Court

systems, they have continually been denied meaningful access to the Courts .

"Redress : to set right, remedy or rectify .., to make a fair

adjustment; to see that justice is done" . - Webster's New World
Dictionary

Justice Bradley in Boyd v. United, 116 U.S. 616 at 635 ( 1$8S) : "
It is the duty of the Courts to be watchful for the Constitutional
Rights of the Citizens, and against any stealthy encroachments
thereon . Their motto should be Obsta Principiis ."

"It will be an evil day for American Liberty if the theory of a

government outside supreme law finds lodgement in our
constitutional jurisprudence . No higher duty rests upon this
Court than to exert its full authority to prevent all violations of
the principles of the Constitution ." Downs v. Bidwell, 182 U.S.
244 (1901)

"It is the only supreme power in our system of government, and

every man who, by accepting office participates in its functions,
is only the more strongly bound to submit to that supremacy, and
to observe the limitations which it imposes on the exercise of the
authority which it gives." U.S. v. Lee, 106 U.S . 196, 220 1 S. Ct.
240, 261, 27 L. Ed 1 71 (1882)

CONCLUS ION

The above paragraphs show that Judge Duffey has an obvious bias/prejudice

against pro se litigants ; and perhaps a bias/prejudice against disabled pro se

litigants; or maybe just a personal bias/prejudice against Plaintiff Stegeman or both

Plaintiffs .

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Further, the above mentioned Judge has deliberately violated disabled

Plaintiff Stegeman's Rights and personal liberties and/or has wantonly refused to

provide due process and equal protection to both Stegeman and McDonald in a

manner inconsistent with that which is needed for full, fair, impartial hearings

before an unbiased, unprejudiced tribunal . The United States Constitution

guarantees an unbiased Judge who will always provide litigants with full protection

of ALL RIGHTS .

Therefore, Petitioners respectfully Moves Judge Duffey, Jr . to

recuse/disqualify himself.

Respectfully Submitted this 30'' day of duly, 2008,

B . GE o
$21 Sheppar
Mountain, GA 30083
(770) 879- 8737

NET D . MC'DONALD, Pro Se

821 Sheppard Rd.
Stone Mountain, GA 30083
(770) 879-8737

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IN T HE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA,
Atlanta Division

JAMES B. STEGEMAN,
JANET D, MCDONALD,
Plainti ffs CIVIL ACTIO N
vs. FILE NO.: 1 :08-cv-1 971 -WSD

SUPERIOR COURT, et., a[.,

Defendants

CERTLF'ICATE OF SERVICE

I Certify that I have this 304' day of July, 2008, served a true and correct
copy of the foregoing Plaintiffs' Motion and Brief In Support of Motion To
Recuse or Disqualify upon Defendants, through their attorney on file by causing
to be deposited with U .S .P.S ., First Class Mail, proper postage affixed thereto,
addressed as follows :
Daniel S. Reinhardt Devon Orland
Troutman Sanders, LLP State of Georgia Dept, of Law
Bank of America Plaza -- Suite 5200 40 Capitol Square, S .W.
600 Peachtree Street, NE Atlanta,,GA 30334-1300
Atlanta, GA 3U308-2216

CIGIES B . STEGE ro Se
.- i 'i
E
" (
NET D. DO D, Pro Se
821 Sheppard Rd.
Stone Mountain, GA 3 0083
(770) 879- 8737

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