                                                                              FILED
                           NOT FOR PUBLICATION                                APR 30 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MYER J. SANKARY,                                 No. 13-55040

              Plaintiff - Appellee,              D.C. No. 2:12-cv-10168-R-PLA

  And
                                                 MEMORANDUM*
CALIFORNIA COURT OF APPEAL
SECOND APPELLATE DISTRICT,
Division Five, Presiding Justice Paul
Turner,

              Plaintiff,

 v.

JUSTIN RINGGOLD-LOCKHART,

              Defendant,

  And

GRETA CURTIS, Esquire, Defendants
Non-Parties; et al.,

              Defendants - Appellants.


                    Appeal from the United States District Court


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                             Submitted April 9, 2015**
                               Pasadena, California

Before: REINHARDT, McKEOWN, and M. SMITH, Circuit Judges.

      The Appellants, Greta Curtis, Law Offices of Greta Curtis, Nina Ringgold,

and the Law Offices of Nina Ringgold, appeal from the district court’s order

remanding this action to state court. The Appellants challenge: (1) the order

transferring this case to the docket of Judge Manuel Real; (2) the denial of the

Appellants’ motion to disqualify Judge Real; (3) the district court’s decision to

remand; and (4) the district court’s order assessing a fine against Nina Ringgold for

civil contempt.

      We have jurisdiction to review the remand order pursuant to 28 U.S.C. §

1447(d). We have jurisdiction to review the other issues raised on appeal pursuant

to 28 U.S.C. § 1291. We reverse the fine against Nina Ringgold, and affirm in all

other respects.




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
      The Appellants have not pointed to any irregularity in how the case was

assigned. The case was assigned to Judge Real because it was related to an earlier-

filed case on Judge Real’s docket.

      Judge Philip Gutierrez did not err in denying the Appellants’ application to

disqualify Judge Real. 28 U.S.C. § 144 provides that “if the judge before whom

the matter is pending has a personal bias or prejudice either against him or in favor

of any adverse party, such a judge shall proceed no further . . . .” See also 28

U.S.C. § 455(a). A judge should be recused if “a reasonable person with

knowledge of all the facts would conclude that the judge’s impartiality might

reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.

2008) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)).

On appeal, the Appellants cite a number of previous interactions with Judge Real

that they contend cast doubt on the judge’s impartiality. These interactions did not

indicate that Judge Real held a “deep-seated favoritism or antagonism that would

make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555

(1994). It was therefore not an abuse of discretion to conclude that disqualification

was not warranted.

      The district court correctly concluded that this case was not removable under

28 U.S.C. § 1443.


                                          3
   A petition for removal under § 1443(1) must satisfy the two-part test
   articulated by the Supreme Court in Georgia v. Rachel, 384 U.S. 780, 788-
   92, 794-804, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966) and City of Greenwood,
   Miss. v. Peacock, 384 U.S. 808, 824-28, 86 S.Ct. 1800, 16 L.Ed.2d 944
   (1966). “First, the petitioners must assert, as a defense to the prosecution,
   rights that are given to them by explicit statutory enactment protecting equal
   racial civil rights.” California v. Sandoval, 434 F.2d 635, 636 (9th Cir.1970).
   “Second, petitioners must assert that the state courts will not enforce that
   right, and that allegation must be supported by reference to a state statute or
   a constitutional provision that purports to command the state courts to ignore
   the federal rights.” Id.

Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006). The case was not

removable under 28 U.S.C. § 1443(1) because the Appellants did not identify a

state law that prohibited them from enforcing their civil rights or “an equivalent

basis . . . for an equally firm prediction that the defendant would be ‘denied or

cannot enforce’ the specified federal rights in the state court.” Rachel, 384 U.S. at

804.

       This case was also not removable under 28 U.S.C. § 1443(2), which “is

available only to federal officers and to persons assisting such officers in the

performance of their official duties,” and to state officers. City of Greenwood v.

Peacock, 384 U.S. 808, 815, 824 n.22 (1966). The Appellants did not demonstrate

that they were state or federal officers or persons assisting such an officer in the

performance of his or her official duties.




                                             4
      The district court erred by awarding an unconditional fine against Nina

Ringgold to redress civil contempt. Punitive sanctions are not available in civil

contempt proceedings. Hicks v. Feiock, 485 U.S. 624, 632-33 (1988). The

unconditional fine was punitive because it was not compensatory and did not

afford Nina Ringgold an opportunity to purge contempt. See United Mine Workers

of Am. v. Bagwell, 512 U.S. 821, 829 (1994) (“[A] ‘flat, unconditional fine’

totaling even as little as $50 announced after a finding of contempt is criminal if

the contemnor has no subsequent opportunity to reduce or avoid the fine through

compliance.” (quoting Penfield Co. of Cal. v. SEC, 330 U.S. 585, 590 (1947))).

      Because the fine was punitive, it could only be imposed if Nina Ringgold

was afforded the protections the Constitution requires in criminal proceedings.

Hicks, 485 U.S. at 632. She was not.

      We therefore reverse the fine against Nina Ringgold.

      We deny the Appellants’ motion for judicial notice (Dkt. No. 47).

      AFFIRMED IN PART, REVERSED IN PART.




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