Brown v. Milwaukee County Jail et al

Filing 57

DECISION and ORDER signed by Judge Pamela Pepper on 10/13/2016 DECLINING To Rule on Plaintiff's 56 MOTION to Recuse Judge Pepper For Lack of Jurisdiction. (cc: all counsel and copy sent to the plaintiff by US Mail on 10/13/2016)(kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ENNIS LEE BROWN,
Plaintiff,
v.

Case No. 15-cv-509-pp
Appeal No. 16-1622

MICHAEL J. HICKS, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DECLINING TO RULE ON PLAINTIFF’S MOTION TO
RECUSE JUDGE PEPPER FOR LACK OF JURISDICTION (DKT. NO. 56)
______________________________________________________________________________
On March 17, 2016, this court dismissed the plaintiff’s case. Dkt. No. 29.
The court entered judgment on March 21, 2016. Dkt. No. 33. On the same day,
the plaintiff filed a notice of appeal. Dkt. No. 30. Then, on July 25, 2016—four
months after he filed his notice of appeal—the plaintiff filed the instant motion
to recuse Judge Pepper for bias, pursuant to 28 U.S.C. §455(a); he filed the
motion in this case and in two other cases he filed in this district (Case No. 16cv-241-PP, Case No. 16-cv-632-PP). Dkt. No. 56.
“The filing of an appeal . . . deprive[s] the district court of jurisdiction
over the case.” Boyko v. Anderson, 185 F.3d 672, 674 (7th Cir. 1999).
[T]he district court and the court of appeals do not share
jurisdiction over the same case. Jurisdiction is either all in
one court or all in the other. This rule is necessary to
prevent one court’s stepping on the toes of the other, which
would waste judicial time as well as forcing the parties to
proceed in two courts in the same case at the same time.
Id. (citations omitted). 
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Once the case goes to the court of appeals, then, this court does not have
jurisdiction to grant a motion to recuse, or to hold a hearing on it. Id. The court
does not even have the power to consider the motion. Id. at 675.
Circuit Rule 57 of the Circuit Rules of the United States Court of Appeals
for the Seventh Circuit states that if, during the pendency of an appeal, a party
files a motion under Fed. R. Civ. P. 60(a) or 60(b), Fed. R. Crim. P. 35(b), “or
any other rule that permits the modification of a final judgment,” that party
should ask the district court to indicate whether it is inclined to grant the
motion. If the district court says it is so inclined, the Seventh Circuit will
remand the case to the district court to modify the judgment. The plaintiff’s
motion, however, is not a motion under a rule permitting modification of a final
judgment.
Because this court does not have jurisdiction to consider the plaintiff’s
motion, and because there is no rule which allows the court to indicate how it
would rule if it did have that jurisdiction, the court must decline to decide the
motion.
The court DECLINES TO RULE on the plaintiff’s motion to recuse Judge
Pepper for lack of jurisdiction. Dkt. No. 56.
Dated in Milwaukee, Wisconsin this 13th day of October, 2016.

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