Buttercase v. Frakes
ORDER - that I recuse myself from these cases and that the Clerk of the Court shall refer these matters to the Chief Judge for reassignment. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party) (LKO)
8:18-cv-00131-JFB-PRSE Doc # 119 Filed: 11/18/21 Page 1 of 2 - Page ID # 7773
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSEPH JUAN BUTTERCASE,
SCOTT R. FRAKES, Director,
Nebraska Department of Correctional
JOSEPH J. BUTTERCASE,
ERIN ELIZABETH TANGEMAN,
Bar Number 22924,
This matter is before the Court on the Court's own motion pursuant to
28 U.S.C. §§ 455(a) & (b), which set forth the circumstances in which a judge
of the United States shall disqualify himself from a proceeding.
The plaintiff, in case no. 8:18-cv-131, is seeking federal habeas corpus
relief from his state court conviction. In case no. 8:21-cv-435, he accuses the
attorney for the State of Nebraska in the habeas case of conspiring against him
to his detriment. See filing 1.
Although Judge Kopf is not named as a defendant in case no. 8:21-cv-435,
he recused himself because the complaint accuses him of conspiring with the
8:18-cv-00131-JFB-PRSE Doc # 119 Filed: 11/18/21 Page 2 of 2 - Page ID # 7774
defendant. See filing 5. Nor am I named as a defendant, but the complaint
accuses me (in my then-capacity as Chief Judge) of having "tolerated, covered
up, and failed to remedy" the alleged misconduct. Filing 1 at 6.
As a result, case no. 8:21-cv-435 could implicate the circumstances
described in § 455(a) and (b)(1), requiring my recusal. To begin with, the
standard of review would require me, on initial review or a motion to dismiss,
to assume the truth of the plaintiff's allegation that I participated in a civil
conspiracy against the plaintiff. See Rinehart v. Weitzell, 964 F.3d 684, 688
(8th Cir. 2020). Furthermore, in the event that this case proceeds beyond the
pleadings stage, I could not preside over a matter in which I might be a
material witness. See Tyler v. Swenson, 427 F.2d 412, 415-16 (8th Cir. 1970).
And because these two cases are clearly intertwined, it is appropriate for me
to recuse myself from case no. 8:18-cv-131 as well. Accordingly,
IT IS ORDERED that I recuse myself from these cases and that
the Clerk of the Court shall refer these matters to the Chief Judge
Dated this 18th day of November, 2021.
BY THE COURT:
John M. Gerrard
United States District Judge
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