George N. Allen v. Mayberg et al

Filing 276

ORDER DENYING 275 Motion to Recuse AS MOOT signed by Magistrate Judge Gary S. Austin on 12/13/2018. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE N. ALLEN, et al.,

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Plaintiff,

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vs.

1:06-cv-01801-AWI-GSA-PC
ORDER DENYING MOTION TO RECUSE AS
MOOT
(ECF No. 275.)

MAYBERG, et al.,

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Defendants.

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I.

BACKGROUND

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Jackie Robinson (“Plaintiff”) is proceeding with counsel in this civil rights action

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pursuant to 42 U.S.C. § 1983. On December 12, 2018, Plaintiff filed a motion to recuse the

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assigned Judge B. Lynn Winmill, Chief District Judge for the District of Idaho, as district judge

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in this case pursuant to 28 U.S.C. § 144. (ECF No. 275.) Plaintiff states that he would prefer

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that this case be reassigned to a judge sitting in the State of California.

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II.

BIAS OR PREJUDICE OF JUDGE -- 28 U.S.C. § 144

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Federal statute 28 U.S.C. § 144 provides that: “Whenever a party to any proceeding in a

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district court makes and files a timely and sufficient affidavit that the judge before whom the

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matter is pending has a personal bias or prejudice either against him or in favor of any adverse

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party, such judge shall proceed no further therein, but another judge shall be assigned to hear

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such proceeding.” 28 U.S.C. § 144 (emphasis added).
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Plaintiff’s motion is moot because this case is no longer pending before Chief District

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Judge B. Lynn Winmill. On November 27, 2018, this case was reassigned from Chief District

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Judge B. Lynn Winmill and Magistrate Judge Larry M. Boyle, to District Judge Anthony W.

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Ishii and Magistrate Judge Gary S. Austin. (Court Docket.) Judges Ishii and Austin are both

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judges for the United States District Court, Eastern District of California. Therefore, Plaintiff’s

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motion is moot and shall be denied as such.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion to recuse

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Chief District Court Judge Lynn B. Winmill and reassign the case to another district judge

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pursuant to 28 U.S.C. § 144, filed on December 12, 2018, is DENIED as moot.

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IT IS SO ORDERED.
Dated:

December 13, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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