Sanchez v. Booth et al

Filing 23

ORDER denying 21 "Motion to Appeal Courts illegal and Wrongful Decision Under 28 U.S.C. 2201 and 2202 And under rule 65 Fed. R. Crim. P." by Judge Raymond P. Moore on 3/30/15.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-02113-RM-KMT
FELIBERTO SANCHEZ,
Plaintiff,
v.
OFFICER WERTH,
Defendant.
______________________________________________________________________________
ORDER DENYING
“MOTION TO APPEAL COURT[‘]S ILLEGAL AND WRONGFUL DECISION UNDER
28 U.S.C. 2201 AND 2202 AND UNDER RULE 65 FED. R. CRIM. P.” (ECF NO. 21)
______________________________________________________________________________
THIS MATTER is before the Court on Plaintiff’s “Motion to Appeal Courts illegal and
Wrongful Decision Under 28 U.S.C. 2201 and 2202 And under rule 65 Fed. R. Crim. P.”
(“Motion”) (ECF No. 21), appealing alleged “biased decisions” by this court. Plaintiff appears
pro se; therefore, the Court reviews his pleadings and other papers liberally and holds them to a
less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 52021 (1972); see also Trackwell v. United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citation omitted). As there has been no final judgment in this case, and Plaintiff’s Motion is
seeking relief before this Court, and not the United States Court of Appeals for the Tenth Circuit,
the Court construes Plaintiff’s Motion as an objection to, and/or a request for reconsideration of,
orders previously issued in this case. Upon consideration of Plaintiff’s Motion and the previous
orders, the Court finds no basis to reconsider or otherwise overturn those orders.

First, to the extent Plaintiff is requesting reconsideration of Senior District Judge Lewis
T. Babcock’s October 9, 2014, Order (“First Order”) dismissing certain defendants and claims
(ECF No. 9), Plaintiff’s earlier filed “Motion to Correct Corrupt (illegal) ruling” (ECF No. 13)
was construed as such a request and denied by Order dated November 10, 2014 (“Second
Order”) (ECF No. 15) by Magistrate Judge Kathleen M. Tafoya. Having failed to show
reconsideration is warranted, see Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000) (setting forth grounds warranting a motion to reconsider), the First Order will not be
reconsidered further.
Second, to the extent Plaintiff is challenging the Magistrate Judge’s Second Order,
Plaintiff has failed to set forth facts, allegations, or arguments to show any error in that order.
Third, to the extent Plaintiff is challenging the Magistrate Judge’s December 22, 2014,
Order (“Third Order”) (ECF No. 20) denying Plaintiff’s “Motion of Recuse” (ECF No. 18), the
bare assertion that decisions are “biased” is insufficient. Nonetheless, the Court has
independently reviewed the case file and finds no evidence that prior decisions were the product
of actual bias, or that suggests there is an appearance of bias. See 28 U.S.C. § 455; Bryce v.
Episcopal Church in the Diocese of Colo., 289 F.3d 648, 659 (10th Cir. 2002). The Court
recognizes, however, that Plaintiff’s Motion of Recuse was also filed under 28 U.S.C. § 144,
which provides that when a party “makes and files a timely and sufficient affidavit that 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 judge shall proceed no further….” (Emphasis added.) In this case,
however, no affidavit or its equivalent was filed with Plaintiff’s motion. In summary, the Court
finds no basis for the recusal of the Magistrate Judge.
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Finally, in essence, Plaintiff also appears to contend he has sufficiently alleged claims
against certain individuals at the Sterling Correctional Facility, and, indeed, requests judgment
and relief in his favor. Whether Plaintiff has sufficiently alleged any claim, however, is the
subject of Defendant’s Motion to Dismiss (ECF No. 16) and may be determined once that
motion is decided. It is therefore
ORDERED that Plaintiff’s “Motion to Appeal Courts illegal and Wrongful Decision
Under 28 U.S.C. 2201 and 2202 And under rule 65 Fed. R. Crim. P.” is DENIED.
DATED this 30th day of March, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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