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Case 1:08-cv-01971-WSD

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Filed 08/07/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JAMES STEGEMAN, JANET STEGEMAN, Plaintiffs, v. SUPERIOR COURT STONE MOUNTAIN, et al., Defendants.

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CIVIL ACTION 1:08-CV-1971-WSD

RESPONSE TO PLAINTIFFS’ MOTION TO RECUSE OR DISQUALIFY Comes Now Judge Cynthia Becker and the Superior Court of the Stone Mountain Judicial Circuit through Thurbert Baker Attorney General for the State of Georgia, and file their response to Plaintiffs’ motion to recuse the Honorable William S. Duffy pursuant to 28 U.S.C. § 455. In their motion, Plaintiffs contend that Judge Duffey, Jr., should be recused or disqualified from their case because he is biased against pro se and disabled persons, and against Plaintiff James Stegeman specifically. Plaintiffs’ motion should be denied because they have failed to make the requisite showing. Under § 455, a judge should recuse himself if “his impartiality might be reasonably questioned” or if “he has a personal bias or prejudice concerning a party. 28 U.S.C. § 455(a), (b)(1). “A judge should be disqualified only if a reasonable person, apprised of all the facts and circumstances, would


Case 1:08-cv-01971-WSD

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Filed 08/07/2008

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question the judge’s impartiality.” United States v. Killough, 848 F.2d 1523, 1529 (11th Cir. 1988). Ordinarily, “[t]he bias or prejudice must be personal and extrajudicial.” United States v. Amedeo, 487 F.3d 823, 828-29 (11th Cir. 2007) (quotations and citations omitted). Thus, “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). In the instant case, a cursory review of the motion to recuse or disqualify shows that it is patently insufficient. Indeed, the Plaintiffs fail to provide support for their motion other than the fact that the judge has ruled against them in other matters. Therefore, it is apparent that the basis for recusal rests on judicial conduct, as opposed to extra-judicial conduct.

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Case 1:08-cv-01971-WSD

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Filed 08/07/2008

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CONCLUSION

For the above and foregoing reasons, Plaintiffs’ Motion to Recuse or Disqualify should be denied. Respectfully submitted this 7th day of August, 2008. THURBERT E. BAKER Attorney General

033887

KATHLEEN M. PACIOUS 558555 Deputy Attorney General /s/ Devon Orland_____________________ DEVON ORLAND 554301 Senior Assistant Attorney General Please Send Communications To: Devon Orland State of Georgia Department of Law 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304; E-mail: dorland@law.ga.gov

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Case 1:08-cv-01971-WSD

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Filed 08/07/2008

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CERTIFICATE OF SERVICE I hereby certify that on August 7, 2008, I electronically filed the State of Georgia’s RESPONSE TO PLAINTIFFS’ MOTION TO RECUSE OR DISQUALIFY with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to all attorneys of record: Daniel Reinhardt Sent through United States Mail to pro se Plaintiff: James Stegemam Janet McDonald/Stegeman 821 Sheppard Road Stone Mountain, Georgia 30083 This 7 day of August, 2008. s/Devon Orland Georgia Bar No. 554301 Senior Assistant Attorney General Please Send Communications To: Devon Orland State of Georgia Department of Law 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 463-8850 Facsimile: (404) 651-5304 E-mail: dorland@law.ga.gov


Beckerrerecuse