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Turner v. Pleasant, 04-30406 (2005)

Court: Court of Appeals for the Fifth Circuit Number: 04-30406 Visitors: 20
Filed: Mar. 31, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 31, 2005 Charles R. Fulbruge III Clerk No. 04-30406 Summary Calendar ADA D. TURNER; ET AL., Plaintiffs, ADA D. TURNER, individually and as administrator of the estate of her minor children Devin Duval and Daniel Daigle; RONNIE TURNER, Plaintiffs-Appellants, versus NEAL E. PLEASANT; ET AL., Defendants, NEAL E. PLEASANT; RPIA OF DELAWARE INC.; STANDARD FIRE INSURANCE CO., Defend
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 31, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-30406
                         Summary Calendar


ADA D. TURNER; ET AL.,

                                    Plaintiffs,

ADA D. TURNER, individually and as administrator of the
estate of her minor children Devin Duval and Daniel Daigle;
RONNIE TURNER,

                                    Plaintiffs-Appellants,

versus

NEAL E. PLEASANT; ET AL.,

                                    Defendants,

NEAL E. PLEASANT; RPIA OF DELAWARE INC.; STANDARD FIRE
INSURANCE CO.,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                     USDC No. 2:01-CV-3572-T
                       --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Ronnie and Ada Turner filed a complaint alleging that the

M/V 24 KARAT navigated at an unsafe speed causing an excessive

wake that caused the Turners’ small bass boat “to go airborne”


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 04-30406
                                 -2-

injuring Ada Turner’s low back.   Following a bench trial, the

district court entered judgment in favor of the defendants.    The

Turners challenge that judgment on appeal.   A trial court’s

findings respecting negligence, cause, and proximate cause are

findings of fact reviewed under the clearly erroneous standard.

Gavagan v. United States, 
955 F.2d 1016
, 1019 (5th Cir. 1992).

     The Turners alleged that their boat encountered a large wake

from the M/V 24 KARAT as it was passing the M/V GENERAL E. LEE.

Based on the deposition testimony of the master of the M/V

GENERAL E. LEE, Captain Ronald Babin, the district court

concluded that the M/V 24 KARAT was not traveling at an unsafe

speed nor had it created an unusual wake as it passed the M/V

GENERAL E. LEE.   The district court also noted the testimony of

an expert witness, Arthur Sargeant, that the accident could not

have happened as described by the Turners.   The Turners have not

shown that the district court was clearly erroneous in finding

that they failed to prove that the M/V 24 KARAT was not operating

in a safe and reasonable way at the time of the alleged injury.

     After the trial, the Turners moved to recuse the district

court.   The Turners contend the district court erred by denying

their request.    Below, the Turners suggested five reasons for the

court to recuse itself.   Three of those reasons arise from

unrelated investigations that do not create a doubt about the

court’s impartiality.   The Turners do not suggest how the fourth

reason–that the defense firm hired the court’s law clerk–casts
                             No. 04-30406
                                  -3-

doubt on the court’s impartiality.     The last reason–that the

court has a social relationship with the defense attorney–is

unsupported.     The only evidence produced to show bias is the

court’s judgment.     In light of the evidence supporting the

judgment, this showing is insufficient.     The district court did

not abuse its discretion in denying the 28 U.S.C. § 455 motion to

recuse.   See Levitt v. University of Texas at El Paso, 
847 F.2d 221
, 226 (5th Cir. 1988).

     AFFIRMED.

Source:  CourtListener

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