Buttercase v. Tangeman

Filing 7

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)

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8:21-cv-00435-JFB-PRSE Doc # 7 Filed: 11/18/21 Page 1 of 2 - Page ID # 41 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA JOSEPH JUAN BUTTERCASE, Plaintiff, 8:18-CV-131 vs. ORDER SCOTT R. FRAKES, Director, Nebraska Department of Correctional Services, Defendant. JOSEPH J. BUTTERCASE, Plaintiff, vs. 8:21-CV-435 ORDER ERIN ELIZABETH TANGEMAN, Bar Number 22924, Defendant. 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 8:21-cv-00435-JFB-PRSE Doc # 7 Filed: 11/18/21 Page 2 of 2 - Page ID # 42 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 for reassignment. Dated this 18th day of November, 2021. BY THE COURT: John M. Gerrard United States District Judge -2-

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