Lietzke v. City of Montgomery et al

Filing 12

ORDER ON REPORT AND RECOMMENDATIONS ; adopting 9 Report and Recommendations.; denying as moot 10 Motion for Trial; denying as moot 10 Motion to Disqualify Judge; denying as moot 11 Motion to Disqualify Judge; finding as moot 1 Motion for Leave to Proceed in forma pauperis; The case is DISMISSED without prejudice. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
BILL LIETZKE,
Plaintiff,
v.

Case No. 1:12-CV-00135-EJL-CWD
ORDER ON REPORT AND
RECOMMENDATION

CITY OF MONTGOMERY, et al,
Defendants.

Before the Court in the above entitled matter is an Application filed by the
Plaintiff, Bill Lietzke, seeking leave to proceed in forma pauperis. (Dkt. 1.) The Court
referred the motion to United States Chief Magistrate Judge Candy W. Dale who, on May
29, 2012, issued a Report and Recommendation (“Report”), recommending that the Court
deny the same. (Dkt. 9.)
No objections to the Report were filed. Mr. Lietzke has filed a Motion to
Disqualify Magistrate Judge Dale and a Motion for Speedy Trial and Disqualification.
(Dkt. 10, 11.) Any party may challenge a Magistrate Judge’s proposed recommendation
by filing written objections within ten days after being served with a copy of the
magistrate’s Report and Recommendation. 28 U.S.C. § 636(b)(1). The district court must
then “make a de novo determination of those portions of the report or specified proposed
ORDER ON REPORT AND RECOMMENDATION- 1

findings or recommendations to which objection is made.” Id. The district court may
accept, reject, or modify in whole or in part, the findings and recommendations made by
the magistrate. Id.; see also Fed. R. Civ. P. 72.1(b). Mr. Lietzke has, however, filed a
Motion for Speedy Trial and to Disqualify the Magistrate Judge. As to the pending
matters, the Court finds as follows.
DISCUSSION
I.

Motion to Proceed In Forma Pauperis:
The Report concluded that the Motion to Proceed In Forma Pauperis should be

denied because both jurisdiction and venue are lacking. The Court has reviewed the
Report and the entire record herein. Having done so the Court concludes that the
Magistrate Judge’s conclusions are well founded and consistent with this Court’s review
of the record.
Proceedings in forma pauperis are governed by 28 U.S.C. § 1915 which allows a
court to authorize the commencement of a proceeding without payment of fees or security
by “a person who submits an affidavit that includes a statement...that the person is unable
to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). The affidavit
supporting an in forma pauperis motion is sufficient if it states that the plaintiff, because
of his poverty, cannot “pay or give security for the costs” and still be able to provide
himself and dependents “with the necessities of life. ” Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 339 (1948). Such averment must “state the facts as to affiant's
poverty with some particularity, definiteness and certainty.” United States v. McQuade,
ORDER ON REPORT AND RECOMMENDATION- 2

647 F.2d 938, 940 (9th Cir. 1981) (internal quotation omitted). Motions under § 1915 are
left to the sound discretion of the trial court and are granted only in exceptional
circumstances. Id.
Based on a de novo review of the record, this Court agrees with the Report and
finds the reasoning therein to be well founded in law and consistent with this Court’s own
view of the evidence in the record. The Court must dismiss a complaint or any portion
thereof that states a frivolous or malicious claim, that fails to state a claim upon which
relief may be granted, or that seeks monetary relief from a defendant who is immune from
such relief. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A. For the reasons stated in
the Report, this Court concludes that the claims raised in this action do not arise out of
conduct occurring in Idaho or any basis upon which to assert personal jurisdiction over
the parties in this matter. (Dkt. 9.) Further, venue is not proper in Idaho. (Dkt. 9.)
Accordingly, the case must be dismissed.
II.

Motions to Disqualify and for Speedy Trial:
Mr. Lietzke has filed two Motions to Disqualify Chief Magistrate Judge Dale in

this matter and requesting a speedy trial. (Dkt. 10, 11.) As to disqualification, Mr. Lietzke
argues Chief Magistrate Judge Dale failed to conduct all of the necessary and proper

ORDER ON REPORT AND RECOMMENDATION- 3

proceedings in this case, such as an evidentiary hearing, and that she is “partial” to the
Defendants in this matter.
A motion for recusal or disqualification of an allegedly biased judge must be
made timely and show bias. See 28 U.S.C. §§ 144, 455. The Court has reviewed the
record and finds there is neither bias nor resulting prejudice by Chief Magistrate Judge
Dale in this case which warrant recusal. Further, the Court has examined 28 U.S.C. § 455
and finds nothing in this proceeding draws into question the impartiality nor are there
circumstances requiring disqualification of Judge Dale. The Court is well within its
discretion to refer this matter to a Magistrate Judge. See 28 U.S.C. § 636(b)(1)(A).
Moreover, the Court finds the Motions to Disqualify in this particular matter to be moot
as this Court has independently reviewed the Application for Leave to Proceed in Forma
Pauperis and found jurisdiction and venue to be lacking.
As to the Motions’ request for a “speedy trial” pursuant to the Sixth Amendment,
that constitutional guarantee applies to criminal trials not, as applicable here, civil
matters. See 18 U.S.C. § 3161. Accordingly, the Motions are denied in this respect.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on May 29, 2012, (Dkt. 9), should be, and is hereby,
INCORPORATED by reference and ADOPTED. Accordingly, IT IS HEREBY
ORDERED as follows:
1)

Plaintiff’s Motions to Proceed In Forma Pauperis (Dkt. 1) is MOOT.

ORDER ON REPORT AND RECOMMENDATION- 4

2)

The case is DISMISSED without prejudice.

3)

Plaintiff’s Motions to Disqualify (Dkt. 10, 11) are DENIED AS MOOT.
DATED: June 19, 2012

Honorable Edward J. Lodge
U. S. District Judge

ORDER ON REPORT AND RECOMMENDATION- 5