Lietzke v. County of Montgomery, AL et al

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATIONS; incorporating and adopting 9 Report and Recommendations; denying 10 Motion for Trial and Motion to Disqualify Judge; denying 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 (cjm)

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

Case No. 1:12-cv-00145-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.) Any party may challenge a Magistrate Judge’s proposed recommendation by
filing written objections within fourteen 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
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). No objections to the Report were filed. Mr.
ORDER ON REPORT AND RECOMMENDATION- 1

Lietzke has instead filed a Motion to Disqualify Magistrate Judge Dale and a Motion for
Speedy Trial and Disqualification. (Dkt. 10, 11.) 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, 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
ORDER ON REPORT AND RECOMMENDATION- 2

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 a Motion to Disqualify Chief Magistrate Judge Dale in this

matter and a Motion 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
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
ORDER ON REPORT AND RECOMMENDATION- 3

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.

2)

The case is DISMISSED without prejudice.

3)

Plaintiff’s Motions (Dkt. 10, 11) are DENIED.

DATED: November 5, 2012

Honorable Edward J. Lodge
U. S. District Judge

ORDER ON REPORT AND RECOMMENDATION- 4