v. Bronstein et al

Filing 7

ORDER granting in part and denying in part 6 Motion for Extension of Time and Motion to Recuse, by Magistrate Judge Gordon P. Gallagher on 05/26/15.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-827-GPG

BYRON R. BRONSTEIN, Plaintiff
v.
SOCIAL SECURITY ADMINISTRATION, Defendant

ORDER

On May 22, 2015, Plaintiff Byron R. Bronstein filed a “Motion to Void the Time
Limit Ordered by Magistrate Judge Gordon P. Gallagher to ‘Cure’ an Alleged Deficiency
in My Complaint.” (ECF No. 6). In the document, Plaintiff first requests additional time
to cure the deficiencies in his Complaint, as ordered by the Court on April 23, 2015.
The Court’s April 23, 2015 Order to Cure Deficiency informed Plaintiff that he needed to
submit his complaint on the court-approved form. (ECF No. 5). After requesting
additional time to comply with the April 23, 2015 Order, Plaintiff next asserts that he did
use the proper legal format as provided in the United States District Court’s filing
packet. (ECF No. 6 at 2). He requests that the court provide him “with a valid statute
that requires litigants to file Complaints on the very same forms provided by the Court,
and a statute that declares it illegal for litigants to copy the formss (sic) and format . . .
on to the litigants (sic) own paper . . . .” (ECF No. 6 at 2). Plaintiff then alleges that the
court is singling him out and “uksing (sic) the flimsiest excuses to deny [him his] right to
justice.” (ECF No. 6 at 3). He recommends “that Magistrate Gallagher recuse himself

from handling this case, and any and all other cases that I chooose (sic) to file in the
Untied States District Court.” (ECF No. 6 at 3).
The Court must construe the document liberally because Plaintiff is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10 th Cir. 1991).
Therefore, the document will be liberally construed as a Motion for Extension of Time
and a Motion for Recusal.
I. Motion for Extension of Time
Plaintiff alleges that he is “disabled, debilitated, and severely handicapped,” and,
therefore, “no judicial statute and/or judicial time restraint, or limitation set on my period
of response is legal . . . .” (ECF No. 6 at 1). The Court disagrees and finds otherwise.
A claim of disability, by itself, does not excuse a plaintiff from following court
orders and complying with deadlines. See Gometz v. U.S., 334 Fed. Appx. 889 (holding
district court did not abuse its discretion by dismissing Plaintiff’s case when he failed to
file an amended complaint in the time allowed even where Plaintiff claimed he was
disabled). However, if good cause is established, a Court may grant a motion for an
extension of time to comply with a court order. See Fed. R. Civ. P. 6(b)(1)(A) (“When an
act may or must be done within a specified time, the court may, for good cause, extend
the time: with or without motion or notice if the court acts, or if a request is made, before
the original time or its extension expires.”) In this case, based on Plaintiff’s assertions
that his disabilities cause him to need more time to complete tasks, Plaintiff’s Motion for
Extension of Time will be granted. Plaintiff will have thirty days from the date of this

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Order to cure the deficiency as noted in the Court’s April 23, 2015 Order.
II. Motion for Recusal
Next, Plaintiff requests that I recuse myself from this case because I am
“singling” him out and that I “desperately want[] to dismiss [his] case.” (ECF No. 6 at 3).
Plaintiff also makes allegations that I am discriminating against him because he is
“handicapped,” “disabled,” “of the Jewish pursuasion (sic),” “or of Jewish ethncity (sic).”
(Id.). He asserts that he is being harassed by an “insensitive, and unlawfully
discriminating Magistrate[]” and that he believes I “will [d]ismiss [his] case no matter
what [he] do[es].” (Id.)
A judge is to recuse himself when "a party to any proceeding in a district court
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." 28 U.S.C. § 144. Further, under 28 U.S.C. § 455(a), a judg e "shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.”
In this case, Plaintiff has failed to file a timely and sufficient affidavit that I have a
personal bias or prejudice against him. His motion includes unsubstantiated and
unsupported allegations that I am discriminating against him by requiring him to submit
his Complaint on the court-approved form. However, D.C.ColoL.Civ R. 5.1c specifically
states that “an unrepresented . . . party shall use the procedures, forms, and
instructions posted on the court’s website.” It is this Court’s normal practice to review a
pro se party’s pleadings under D.C.Colo.LCivR. 8.1(a) and insure that the appropriate
forms were used. Further, failure to cure deficiencies, such as submitting a Complaint

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on the current court-approved form, can lead to dismissal. See Kosterow v. U.S.
Marshal’s Service, 345 Fed. Appx. 321, 322-23 (10 th Cir. 2009) (dismissal when plaintiff
failed to submit complaint on proper form within the time allowed following court’s order
to cure deficiency); United States ex rel. Jimenez v. Health Net, Inc., 400 F.3d 853, 855
(10th Cir. 2005)("[D]ismissal is an appropriate disposition against a party who
disregards court orders and fails to proceed as required by court rules.”).
In this case, Plaintiff is being treated just as any other pro se party who appears
in this Court would be treated: he is being required to use the appropriate courtapproved forms. See D.C. ColoL.Civ. R. 5.1c. Plaintiff makes no allegations that he
cannot access the forms. Furthermore, his assertions that he used “the proper legal
format . . .” but had to “copy the forms provided onto my own paper” because of
typographical errors, (ECF No. 6 at 2), is unpersuasive. The Complaint he filed on April
17, 2015 does not follow the format of the court-approved General Complaint form.
(See ECF No. 1). For example, on Page 1 of Plaintiff’s Complaint, he lists “Parties” and
then “Jurisdiction.” (ECF No. 1 at 1). In contrast, page 1 of the court-approved General
Complaint form is the caption page, listing the court, the case number, and the Plaintiff
vs. the Defendant. Furthermore, Plaintiff’s “Claims for Relief” in his Complaint (ECF
No. 1 at 8-16) are listed after his “Request for Relief” (ECF No. 1 at 6), while the courtapproved form has the “Request for Relief” as the last page of the Complaint. Further,
in contradiction of local rule, Plaintiff’s complaint is not double spaced.
Accordingly, his allegations fail to establish that I have any personal bias or
prejudice against him. Therefore, I will not recuse myself from this case.

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For the reasons discussed above, it is
ORDERED that Plaintiff’s Motion for Extension of Time and Motion to Recuse
(ECF No. 6) is GRANTED in part and DENIED in part. It is
ORDERED that the Motion for Extension of Time to cure the deficiencies in his
Complaint, as noted in the Court’s April 23, 2015 Order, is GRANT ED. Plaintiff has
thirty days from the date of this Order to cure the deficiencies as designated in the
Court’s April 23, 2015 Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved form used in
filing a General Civil Complaint, along with the applicable instructions, at
www.cod.uscourts.gov. It is
FURTHER ORDERED that if Plaintiff fails to cure the designated deficiencies
within thirty days from the date of this Order, the action will be dismissed without
further notice. It is
FURTHER ORDERED that the Motion to Recuse is DENIED.
DATED May 26, 2015, at Denver, Colorado.
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge

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