Mendez v. Stanton et al
ORDER denying as moot 7 Plaintiff's Motion for Abeyance; denying 12 Plaintiff's Motion to Assign to Another Judge (Written Opinion). Signed by Judge Ann D. Montgomery on 06/06/2017. (TLU)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-4002 ADM/BRT
Warden L. LaRiva, K. Lundy Staff Attorney, and
Unknown Inmate Legal Mail Room Servers in their
Official and Individual Capacities,
Raphael Mendez, pro se.
This matter is before the undersigned United States District Court Judge for a ruling on
Plaintiff Raphael Mendez’s Motion for Abeyance [Docket No. 7] and Motion to Assign to
Another Judge [Docket No. 12].1 For the reasons set forth below, the Motion for Abeyance is
denied as moot and the Motion to Assign to Another Judge is denied.
On November 28, 2016, pro se Plaintiff Raphael Mendez (“Mendez”) filed a 42 U.S.C.
§ 1983 Complaint [Docket No. 1], asserting claims against individuals at the Federal Medical
Center in Rochester, Minnesota. Mendez did not pay the filing fee, but instead filed an
application seeking leave to proceed in forma pauperis. See Application [Docket No. 2].
On January 26, 2017, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), Magistrate Judge Becky
R. Thorson concluded that Mendez’s “current complaint is too confusing to survive screening at
Also pending in this case is an Application to Proceed in District Court Without
Prepaying Fees or Costs [Docket No. 13] (“IFP Application”). As discussed below, the IFP
Application will be reviewed by Magistrate Judge Becky R. Thorson.
this time.” Order [Docket No. 3]. Judge Thorson permitted Mendez one opportunity to file an
entirely new pleading by February 24, 2017. Id. On February 6, 2017, Mendez filed an
Objection with Request to Reconsider [Docket No. 4], arguing that the original complaint pled a
cognizable cause of action. On March 21, 2017, this Court overruled Mendez’s Objection, and
Mendez was given until April 4, 2017 to file a new pleading or the Complaint would be
dismissed. Order [Docket No. 6].
On April 3, 2017, Mendez filed a motion to hold the April 4, 2017 deadline in abeyance
pending interlocutory appeal to the Eighth Circuit Court of Appeals. See Mot. Abeyance. That
motion is now moot because on April 26, 2017, the Eighth Circuit denied Mendez permission to
file an interlocutory appeal. USCA J. [Docket No. 8].
On May 5, 2017, Mendez filed an Amended Complaint [Docket No. 10], a Motion to
Assign to Another Judge, and an Application to Proceed in District Court Without Prepaying
Fees or Costs [Docket No. 13]. Turning first to the Motion to Assign to Another Judge, which is
directed to the Clerk of Court, Mendez requests that this case be assigned to one or two new
judges because the undersigned is allegedly acting in favor of Mendez’s adversaries. This
Motion will be construed as a motion for recusal under 28 U.S.C. § 455, which provides that a
judge shall disqualify herself in specific circumstances, including when her “impartiality might
be reasonably questioned.” 28 U.S.C. § 455(a).
The motion for recusal is denied. Judges are presumed to be impartial and, accordingly,
parties seeking recusal bear “the substantial burden of proving otherwise.” United States v.
Dehghani, 550 F.3d 716, 721 (8th Cir. 2008). Mendez’s only evidence of impartiality is the
adverse rulings he has received in his cases. “Adverse judicial rulings, however, ‘almost never’
constitute a valid basis for recusal; the proper recourse for a dissatisfied litigant is appeal.”
Dossett v. First State Bank, 399 F.3d 940, 953 (8th Cir. 2005).
Regarding the Amended Complaint, although Mendez missed the April 4, 2017 deadline
to file a new pleading, he did timely file his abeyance motion. After the Eighth Circuit denied
his request to file an interlocutory appeal, Mendez filed his Amended Complaint shortly
thereafter. Therefore, the Amended Complaint will be deemed timely and is thus the operative
pleading in this case, which is now ripe for review by Judge Thorson.
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiff Raphael Mendez’s Motion for Abeyance [Docket No. 7] is
DENIED as moot and Mendez’s Motion to Assign to Another Judge [Docket No. 12] is
BY THE COURT:
s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: June 6, 2017.
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