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Olive v. Snyder

February 17, 2009

ANTHONY OLIVE, PLAINTIFF,
v.
DONALD SNYDER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM & ORDER

Before the Court are plaintiff's pro se motion for reconsideration (Doc. 87) and a document entitled "Consolidated Motion" (Doc. 89). In both the motion for reconsideration and the consolidated motion, plaintiff seeks to have the Court reverse its rulings of July 29, 2005, (Doc. 7) which dismissed Counts 2 and 3 of plaintiff's complaint, and September 29, 2008 (Doc. 26), where Magistrate Judge Wilkerson denied plaintiff's motion for reconsideration and relief from judgment and for leave to amend his complaint. Once again, plaintiff asserts that the Court failed to give his claims fair review and failed to apply the proper review standard with respect to his exhaustion of administrative remedies.

In addition, the consolidated motion seeks substitution of both this Judge and Magistrate Judge Wilkerson because of his disagreement with the rulings of the Court.

A. Disqualification Standards

In light of the fact that the motion is filed pro se, the Court will consider the motion for substitution of judges to be premised on 28 U.S.C. §§ 144, 455. Section 144 provides:

§ 144. Bias or prejudice of judge

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith. Section 455 provides in pertinent part:

§ 455. Disqualification of justice, judge, or magistrate.

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . .

(5) He or his spouse, or a person within the third degree of relationship to either of them, or ...


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