TOM BARBER, District Judge.
This matter is before the Court on Plaintiff Joshua Statton's pro se "First Motion to Disqualify Judge Thomas Barber," filed on August 6, 2019. (Doc. # 67). On August 8, 2019, Defendants Chad Chronister, as Sheriff for Hillsborough County, Deputy Sheriff J. Smith, and Unnamed Deputies on Duty, filed an objection to the Motion to Disqualify. (Doc. # 68). On October 4, 2019, Mr. Statton filed his "Motion for Ruling on Plaintiff's Motion to Disqualify and Supplement to Motion to Disqualify" (Doc. # 70), containing new allegations to arguing for disqualification.
The Court addresses Mr. Statton's arguments under 28 U.S.C. § 455.
Although federal judges have a duty to recuse themselves when a disqualifying factor comes to light, a judge also has a duty to retain a case when faced with a meritless recusal motion. See In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988) ("A judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is."). This is "because the disqualification decision must reflect not only the need to secure public confidence through proceedings that appear impartial, but also the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons perhaps to obtain a judge more to their liking." In re Allied-Signal Inc., 891 F.2d 967, 970 (1st Cir. 1989); see Greenough, 782 F.2d at 1558 (explaining twin policies of the § 455(a) standard).
Under the federal disqualification procedure, a judge does not and should not accept as true the allegations or speculation of the moving party. See, e.g., Greenough, 782 F.2d at 1558; United States v. Bennett, 539 F.2d 45, 51 (10th Cir. 1976); United States v. Platshorn, 488 F.Supp. 1367, 1368-69 (S.D. Fla. 1980). This is very different from the disqualification procedure that currently exists in the Florida state courts where judges are required to accept all allegations as true and are prohibited from identifying and rejecting allegations that are misleading, inaccurate, or outright false. Under the Florida state court disqualification procedure, unscrupulous parties are free to abuse and manipulate the system to obtain a judge more to their liking simply by filing an affidavit containing demonstrably false allegations. The federal disqualification procedure operates differently. See Greenough, 782 F.2d at 1558 ("If a party could force recusal of a judge by factual allegations, the result would be a virtual `open season' for recusal.")
Nonetheless, in federal courts "the judge must still tread cautiously, recognizing, on the one hand, the great importance of the judicial institution of avoiding any appearance of partiality, while simultaneously remaining aware of the potential injustices that may arise out of unwarranted disqualification." In re Allied-Signal Inc., 891 F.2d at 970. "A judge, having been assigned to a case, should not recuse himself on unsupported, irrational, or highly tenuous speculation." Harris v. Geico Gen. Ins. Co., 961 F.Supp.2d 1223, 1227-28 (S.D. Fla. 2013) (quoting Carter v. West Pub. Co., No. 99-11959-EE, 1999 WL 994997, at *2 (11th Cir. Nov. 1, 1999)).
In his first motion for disqualification, filed on August 6, 2019, Mr. Statton alleges he is the president of a non-profit organization that engaged in various activities opposing my appointment to the federal bench. He also alleges that he submitted a FOIA request to the now defunct Federal Judicial Nominating Commission in an attempt to obtain a copy of the application I submitted to that body, and he ultimately filed suit in the Middle District of Florida to compel disclosure of that application. This action was dismissed due to lack of subject matter jurisdiction, and the appeal is currently pending before the Eleventh Circuit Court of Appeal.
Upon careful consideration, the Court finds that disqualification is not warranted in these circumstances. This is not the first time a case of this nature has come before the federal courts. In DeNardo v. Municipality of Anchorage, 974 F.2d 1200, 1201 (9th Cir. 1992), the plaintiff actively opposed the judge's judicial appointment by sending a letter to the Senate Judiciary Committee. The Ninth Circuit Court of Appeal held that disqualification was not necessary, explaining that "[s]uch a letter is probative of [the plaintiff's] dislike for [the judge], not the other way around." That is precisely the case here. I have never met Mr. Statton, nor have I ever presided over a case where he was a party in my prior position as a state court judge. His efforts in connection with my judicial appointment were of no consequence and immediately recognized by everyone involved in the process for what they were — a poorly-disguised attempt by his employer, convicted felon Christina Paylan, to retaliate against me for sentencing her to jail in 2014, when I presided over her criminal trial as a state court circuit judge. That 364-day jail sentence resulted from a jury verdict finding her guilty of two separate felony crimes, each punishable by up to five years in prison (Obtaining a Controlled Substance by Fraud, and Fraudulent Use of Personal Information).
It is common for convicted felons to blame the presiding judge in their cases for their predicaments. And it is not unusual for disgruntled criminals to attempt to retaliate in various ways against the judges that sentence them. It is well-established that a judge's adverse prior decisions, including sentencing a defendant to jail or prison, do not require disqualification in subsequent cases. See, e.g., Christo v. Padgett, 223 F.3d 1324, 1334 (11th Cir. 2000) (holding that a district court judge's prior sentencing of a civil plaintiff in a criminal proceeding, and the fact that the judge presided over other litigation involving the civil plaintiff's family, did not require disqualification from the civil action).
Moreover, parties sometimes conduct themselves in a manner that "predictably engender[s] a judge's animus, but such behavior does not trigger the need for disqualification. To hold otherwise would be to create an opportunity for parties to exhibit hostile behavior strategically, as a means to force disqualification." Charles Gardner Geyh, Fed. Judicial Ctr., Judicial Disqualification: An Analysis of Federal Law 46 (Markarian 2d ed. 2010). In this case, Mr. Statton's own public hostility counsels against disqualification, "lest we encourage tactics designed to force recusal." See United States v. Bertoli, 40 F.3d 1384, 1414 (3d Cir. 1994); In re Kozich, 534 B.R. 427, 429 (S.D. Fla. Bankr. 2015). "Forcing judges to recuse because a litigant has criticized the judge would give litigants veto power over judges and allow forum shopping. It would also stretch the recusal statutes far beyond their intended purpose and potentially force disqualifications in a large number of cases." Salt Lake Trib. Pub. Co., LLC v. AT&T Corp., 353 F.Supp.2d 1160, 1176 (D. Utah 2005).
As an additional argument in support of his disqualification request, Mr. Statton cites to the fact that he has filed a FOIA action seeking a copy of my application to the Federal Judicial Nominating Commission. However, this does not require my disqualification. "[A] judge is not disqualified merely because a litigant sues or threatens to sue him." In re Bush, 232 F. App'x 852, 854 (11th Cir. 2007) (quoting United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977)); accord United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986); see Cuyler v. Aurora Loan Servs. Inc., No. 12-11824-DD, 2012 WL 10488184, at *1 (11th Cir. Dec. 3, 2012). The connection to a lawsuit or threatened suit is even more tenuous here, where I am not even a named party to the actions.
In his second motion for disqualification, filed on October 4, 2019, Mr. Statton raises various additional grounds, including: (1) a claim I am a material witness in this action; (2) I have a "mentor-student relationship" with Judge Mark Kiser, a Defendant in this action; (3) I exhibited bias when moderating a panel by not selecting a question submitted by Mr. Statton; (4) I am friends with John Kynes (a non-party and non-witness to this action); (5) I, as well as my children, attended Jesuit High School, and share a "special allegiance" with Judge Kiser and John Kynes, who also attended Jesuit High School and have children that attend the school; and (6) I caused Mr. Statton and Ms. Paylan to be trespassed from the Hillsborough County Bar Association's building.
A material witness is "a witness who gives testimony going to some fact affecting the merits of the cause and about which no other witness may testify." Callahan v. Campbell, 427 F.3d 897, 919 (11th Cir. 2005) (internal citation and quotation omitted). I have no such information or knowledge and I am not a material witness in this action. "Unsubstantiated speculation about the possibility that the judge will be required to be a material witness concerning a disputed issue is not enough to require recusal." United States v. Fletcher, No. 3:09-00243, 2013 WL 3728792, at *5 (M.D. Tenn. July 2, 2013) (quoting United States v. Salemme, 164 F.Supp.2d 86, 111 (D. Mass. 1988)).
One of the Defendants in this action, Judge Mark Kiser, and I were previously colleagues during the time we both served as Circuit Judges in the Thirteenth Judicial Circuit. Mr. Statton's claims that a "mentor-student relationship" exists and that Judge Kiser is my "protégé and close personal friend" are pure fiction. Judge Kiser and I were work colleagues and nothing more. Acquaintance with a party is rarely a basis for compelled disqualification. See, e.g., In re Martinez-Catala, 129 F.3d 213, 221 (1st Cir. 1997); Parrish v. Board of Com'rs of Alabama State Bar, 524 F.2d 98, 102 (5th Cir. 1975); see also Carter v. West Pub. Co., No. 99-11959-EE, 1999 WL 994997, at *5 (11th Cir. Nov. 1, 1999). As the Seventh Circuit has explained:
United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985). Judge Kiser and I previously worked in the same building and shared the same job title. Although we had a cordial, professional relationship, no reasonable person would find anything even remotely close to a "mentor-student relationship" existed. As such, Mr. Statton has failed to identify the type of extensive personal contacts that would warrant disqualification.
The remainder of the grounds alleged by Mr. Statton in his second motion for disqualification do not merit further comment as none of them rise to the level requiring disqualification, even if true.
It is therefore
1. I am over the age of 18 and I make the statements herein based on my own personal knowledge and can and will testify to these facts if called upon to do so,
2. I am employed by Dr. Paylan. I deliver papers to the courthouse as requested by Dr. Paylan
3. On September 20, 2018, at approximately 1.00 PM, I arrived on the 6
4. A female deputy came out and informed me that she would be getting someone for me to hand the motion to. This female duty was about S'2 with short brown hair and brown eyes.
5. When the same deputy came back out, she was accompanied with judicial assistant for Judge Ward, Shelanda Moore. As I was standing in the lobby, in front of the door leading to Judge Kiser's chambers, a conversation ensued between myself and the female deputy in the presence of Ms. Moore.
6. This conversation pertained to confirmation by the deputy that prosecutors Christine Brown and Darrell Dirks do have unrestricted access to Judge Kiser's chambers and that they do have conversations with the judge on days where there are hearings prior to commencement of the hearings on the
7. When I asked the deputy whether there are public defenders or other criminal defense attorneys present during these conversations between Judge Kiser and Darrell Dirks and Christine Brown, the deputy responded by stating that "no, because they are not allowed access back there".
8. During this conversation, Deputy Bass came out and unlocked the courtroom doors. After I handed the motion to Ms. Moore who was standing next to the deputy, I then left.
9. On my way out walking through the annex, approximately around 1:30 PM, I walked past Judge Kiser who was walking in the annex. Judge Kiser was not wearing his judicial robe and was in street clothes We both said "hello" to each other.
10. As I was leaving, I also realized that I forgot to get the name of the deputy whom I was talking to.
11. I called the Security Office and was told that I could not be provided the last name of the deputy over the phone and that I needed to come in person in order to be provided with the fast name of this deputy
12. The next day I returned to the courthouse with Dr. Paylan and went back to the 6
13. Within a few minutes after my inquiry about identity of this female deputy, another female deputy arrived by the name of Deputy J. Smith. She asked whether we could talk in the comer. Deputy Smith started to read me Miranda rights. When I asked her why she was reading me my Miranda rights, and whether I was being arrested, Deputy Smith responded that it was protocol for her to read me Miranda rights. I asked her to identify what it was that she needed to read me Miranda rights for. Deputy Smith did not respond,
14. After reading Miranda rights to me, Deputy Smith told me that she had looked at the video surveillance from the day before and observed that I had taken a photograph of Judge Kiser as I walked past him in the annex at around 1:30 PM.
15. When I told her that she was wrong that I took a photograph of Judge Kiser during the 10 seconds of me walking past him in the annex bridge, Deputy Smith informed me that Judge Kiser had made a report of this incident of walking past me as a "security breach" because he believed that I had taken a photograph of him. I told Deputy Smith again that I did not take a photograph of Judge Kiser, but if I had, during this walk-by in the annex when Judge Kiser was walking in a public area, there would be nothing illegal about that
16. Throughout the interrogation, I continued to ask to leave but Deputy Smith told me that I was not free to leave.
17. Deputy Smith then insisted that if I do that again, that I would be ejected from the courthouse. I then asked Deputy Smith for the last name of the female deputy from the day before which was the reason I had come back to find out, Deputy Smith told me that she would not tell me.
18. After about an hour, Deputy Smith-gave me back my driver's license, took my address and cell phone number in case "materials needed to be sent to me"
19. I then left with Dr. Paylan.
20. Dr. Paylan was sitting on the bench within feet of where I was with Deputy Smith during this detainment of me by Deputy Smith.
21. I declare under penalty of perjury that all of the foregoing is true and correct under and pursuant to section 92.525 Fla. Stats on this 24
SWORN TO AND SUBSCRIBED BEFORE ME this 24th day of September 2018, by JOSHUA STATTON who is personally known to me or who has produced
Witness my hand and official seal in the county and stete aforesaid
FLORIDA FOR TRANSPARENCY, INC.
The undersigned incorporator, for the purpose of forming a Florida not-forprofit corporation, hereby adopts the following Articles of Incorporation:
The name of the corporation is:
The principal place of business address:
The mailing address of the corporation is:
The specific purpose for which this corporation is organized is:
The manner in which directors are elected or appointed is:
The name and Florida street address of the registered agent is:
I certify that I am familiar with and accept the responsibilities of registered agent.
Registered Agent Signature: JOSHUA STATTON
The name and address of the incorporator is
Electronic Signature of Incorporator: CHRISTINA PAYLAN, MD
I am the incorporator submitting these Articles of Incorporation and affirm that the facts stated herein are true. I am aware that false information submitted in a document to the Department of State constitutes a third degree felony as provided for in s.817.155, F.S. I understand the requirement to file an annual report between January 1st and May 1st in the calendar year following formation of this corporation and every year thereafter to maintain "active" status.
The initial officers) and/or director(s) of the corporation is/are:
The effective date for this corporation shall be:
