Friday, August 18, 2017
Ninth Circuit Says:
No Showing Judge Real Is Biased Against Yagman’s Ex-Wife
Panel Says Disqualification Motion Was Properly Denied in a Civil Rights Case In Which His Former Antagonist Is Merely in the Role of a Paralegal
By a MetNews Staff Writer
The long-running personal conflict between U.S. District Court Judge Manuel Real of the Central District of California and then-attorney Stephen Yagman, now disbarred and working for his former wife as a paralegal, was at the heart of a motion to disqualify Real from presiding over a civil rights case handled by ex-wife Marion Yagman, with the Ninth U.S. Circuit Court of Appeals now holding that recusal was correctly denied.
Its pronouncement came in a memorandum opinion filed Wednesday. The panel—comprised of Judges Andrew D. Hurwitz and Carlos Bea, joined by Kermit V. Lopez, a First Circuit judge, sitting by designation—affirmed Real’s dismissal of an action by one S.A. Thomas.
The plaintiff claimed he had been wrongfully denied access, during his 23-day incarceration at the Los Angeles County Jail, to a psychotropic drug that had been prescribed for him. Aside from contesting the denial of his disqualification motion, he argued that his causes of action under the Racketeer Influenced and Corrupt Organizations Act (RICO) and under federal constitutional provisions should not have been dismissed without leave to amend.
All of Thomas’s arguments were rejected.
The action was filed on Oct. 10, 2014. Stephen Yagman, disbarred on Dec. 22, 2010—following convictions in U.S. District Court for tax evasion, bankruptcy fraud and money laundering—had earlier served as an attorney for Thomas and co-plaintiff Eric Gipson in their successful action for damages based on being forced to sleep for three nights on the floor in the jail owing to lack of beds.
While Yagman was in law practice, he and Real—appointed to the District Court in 1966, and chief judge in 1982-93—were widely viewed as antagonists. Real in 1984 imposed a $250,000 sanction on Yagman for his courtroom conduct, sparking the lawyer’s public accusation that the judge suffered from “mental disorders.”
He charged that the judge “is a tyrant who is a disgrace to democracy—he is a modern-day Torquemada.”
Tomás de Torquemada was a friar who was in charge of the Spanish Inquisition.
“He suffers from boredom and indulges himself in infantile and harsh behavior to create situations to alleviate his boredom.”
The Ninth Circuit reversed the sanction order and directed that the matter be heard by another judge, and Real sought certiorari in the U.S. Supreme Court challenging that and another decision removing him from a case. Certiorari was denied.
It was Real, Yagman charged, who orchestrated his two-year suspension from practicing in the District Court based on his accusing U.S. District Judge William Keller of being an anti-Semitic bully.
It was Yagman who made a complaint in 2003 about Real’s handling a bankruptcy case—unrelated to Yagman—which five years later resulted in a public reprimand of the jurist.
Bias Not Shown
After Thomas’s present case was routed to Real, his disqualification was sought by the plaintiff, and the question of whether Real is biased was bounced to another judge of the same district, S. James Otero.
Wednesday’s opinion says, without further discussion, that Otero “reasonably determined that any alleged animosity held by Judge Real against Stephen Yagman, a former attorney acting as a paralegal for Thomas, did not amount to bias against Thomas, and that Thomas had failed to provide evidence of any bias by Judge Real against Marion Yagman, Thomas’s attorney.”
The question of the disqualification was alluded to but not discussed at oral argument in the case on June 7.
There, the bulk of the time was consumed by Hurwitz’s comments.
Hurwitz expressed his disagreement with Real having dismissed the first amended complaint without leave to amend as to a cause of action for cruel and unusual punishment, as proscribed by the Eighth Amendment to the United States Constitution, and made applicable to the states by the Fourteenth Amendment, based on denial of prescribed medication.
However, he pointed out to Marion Yagman, arguing for Thomas, that her opening brief “never expressly said why the judge erred in dismissing the Eighth Amendment claim.”
He asked the lawyer, rhetorically, “Don’t you have to do better than that in an appellate brief to challenge a judge’s ruling?”
The lawyer, of the firm of Yagman & Reichmann, responded:
“Obviously, yes, your honor.”
Hurwitz observed that she had spent 15 pages arguing viability of claims under the Racketeer Influenced and Corrupt Organizations Act—which provides for treble damages—and less than two pages discussing various constitutional claims.
Seventh Amendment Claim
The judge was particularly critical of the cause of action under the Seventh Amendment, which provides the right to a jury in a civil case. The plaintiff has attempted to tie his denial of medication to a denial of a meaningful trial before a jury.
“So what’s your Seventh Amendment complaint? He tried his civil case and won it. Would he have recovered more had he been given psychotropic medication during this period?”
Yagman answered in the affirmative, and the judge queried:
“And don’t you have to raise that in the other case?”
The lawyer said, “No you do not,” but before she could explain, Hurwitz interrupted, declaring:
“So what you’re asking the court to do is to retry your other case and say if your client had been given medication during that time period, he would have recovered more money. That’s an extraordinary procedural thing.
“Why don’t you go back to Judge [Dean] Pregerson in the other case, and say: ‘Your honor, we want a new trial—my client was under a disability at the time and want a new trial where he can testify again, maybe we’ll get more damages’?
“You can’t go to Judge Real and ask him to give you more damages in the first case, can you?”
Yagman said that she did not think that “in a million years” Pregerson would have granted a new trial.
Continuing his commentary, Hurwitz said:
“Correct. You won. You got a nice judgment.
“Your client got $10,000 for sleeping on the ground. I mean—I don’t want to minimize the constitutional violation—but that’s pretty good money for sleeping on the ground for three days.
“You were wildly successful on these individual claims.”
(Initially, the first case was a class action, but the class was decertified, and the Ninth Circuit affirmed the decertification order.)
Lawyer for County
Private practitioner Justin Clark—who has sparred with Yagman in various cases involving jail conditions—was asked by Hurwitz how he could “possibly” defend Real’s dismissal of the Eighth Amendment cause of action, without leave to amend, asking:
“Isn’t this a classic denial-of-Eighth Amendment medical treatment case?”
Clark—whom Hurwitz acknowledged had not opposed leave to amend in the trial court—responded that Thomas had not made multiple requests for the drug which a doctor had prescribed. In response to a single request, he said, he was seen by a doctor at the jail, and there was “a simple decision by a doctor not to give medication.”
Hurwitz asked if there was not error in Real not ordering the return to Thomas of his filing fee in light of his declaration of indigence. Clark responded:
“He just had $10,000 in his pocket from the Thomas I case.”
Wednesday’s opinion declared the constitutional arguments to have been forfeited in light of the shoddiness of Yagman’s opening brief. It says:
“Thomas’s opening brief presented no argument or record citations to support his contention that the court erred when it dismissed his constitutional claims. Therefore. Thomas waived these claims on appeal.”
With respect to the RICO claims, it declares:
“The district court properly dismissed Thomas’s claims against Defendants in their official capacities, as those claims are properly made against the Los Angeles County Sheriff’s Department….The district court also properly dismissed Thomas’s civil RICO claims against Defendants in their personal capacities. The [first amended complaint] proffered legal conclusions in support of these claims rather than specific factual allegations.”
The case is Thomas v. Baca, No. 15-55399.
Other appeals relating to jail conditions remain pending.
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