Kelly v. Pima County Sheriff's Department et al

Filing 54

ORDER DENYING AS MOOT 52 Motion to Stay Re: Recusal. IT IS ORDERED, Defendants Marchel and Lumia shall file responsive pleadings 21 days from the filing date of this Order. Signed by Senior Judge Cindy K Jorgenson on 1/8/25. (BAC)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Mark William Kelly,
Plaintiff,

10
11

v.

12

Pima County Sheriff's Department, et al.,

13

Defendants.

No. CV-24-00001-TUC-CKJ
ORDER

14
15

This is one of two cases filed by Plaintiff involving allegations against multiple

16

Defendants, including the Pima County Sheriff’s Department, its officers, and private

17

construction companies and their employees. In this action, Plaintiff generally alleges that

18

he was in a public space, filming and live-streaming a Richmond Construction site, and its

19

general contractor Desert Earth and its employees complained to the sheriff’s department

20

resulting in his removal from the public space and arrest. The action arose on January 18,

21

2022. The other action, CV 23-68 TUC-CKJ, involved the alleged removal of Plaintiff

22

from a public sidewalk at the construction site on July 29, 2021, and subsequent

23

interactions between Plaintiff and several Pima County Sheriffs Department deputies.

24

On December 19, 2024, Judge Martinez recused herself from this and Plaintiff’s

25

other cases, pursuant to 28 U.S.C. § 455(a), which requires recusal “‘in any proceeding in

26

which [her] impartiality might be reasonably questioned.’” (Order (Doc. 53) at 2 (quoting

27

28 U.S.C. § 455(a)). “This is true where there is an appearance of impropriety, whether or

28

not such impartiality actually exists.” (Order (Doc. 53) at 2.) The cases were all transferred

1

to this Court. Given the recusal, the Motion to Stay (Doc. 52) the action pending resolution

2

of the recusal request filed in this case is moot.

3

In reviewing the record in this case, the Court notes on October 4, 2024, the

4

Defendant, the Pima County Sheriff’s Department, was dismissed as a non-jural entity.

5

(Order (Doc. 50) at 6-9.) Likewise, the Court dismissed without prejudice Defendants

6

Richmond Construction, Desert Earth, and their employees, sua sponte, because

7

constitutional claims may only be brought against state actors. Id. at 10-15. The only

8

remaining Defendants are Lumia and Marchel. The operative pleading is the Second

9

Amended Complaint (Doc. 41), which is a noncompliant “marked-up” amended version of

10

document 8. (Order (Doc. 50) at 1-6.)

11

On May 21, 2024, the Court stayed the case as against Defendants Marchel and

12

Lumia under the Servicemembers' Civil Relief Act, 50 U.S.C.A. §§ 3932 and 3935, and

13

extended their responsive pleading deadline to be 21 days after December 30, 2024.

14

Because the October 4, 2024, Order established the operative SAC as document 41, not 8,

15

and the recusal question resulted in delay, the Court resets the time for these Defendants to

16

file responsive pleadings to the SAC (Doc. 41).

17

Accordingly,

18

IT IS ORDERED that the pending Motion to Stay Re: Recusal (Doc. 52) is

19
20

DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendants Marchel and Lumia shall file

21

responsive pleadings 21 days from the filing date of this Order.

22

Dated this 8th day of January, 2025.

23
24
25
26
27
28

-2-