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Neuman v. United States

July 8, 2009

JAMES NEUMAN, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEBBIE AGANS, MINDY DUNCAN, AND DONNA STULL, DEFENDANTS.



The opinion of the court was delivered by: David R Her|do| Chief Judge

MEMORANDUM & ORDER

HERNDON, Chief Judge

Before the Court is plaintiff's pro se motion for reconsideration of the Order of this Court denying plaintiff's motion for hearing (Doc. 26). The Order of the undersigned judge (Doc. 19) denied plaintiff's motion for hearing on reassignment which transferred this case from Judge Reagan to Judge Stiehl, who currently is presiding over the action.

Plaintiff asks, essentially, for an en banc hearing to determine which judge from this District should hear his case. As detailed in the Court's Order this case was reassigned to Judge Stiehl, in the manner, and in accordance with appropriate standards and protocols designed to avoid the appearance of impropriety. Plaintiff now has cast a broad net, again raising conspiracy theories, accusing Magistrate Judge Wilkerson of incompetence, and forwarding other aspersions about judges, particularly Judge Reagan, who is no longer assigned to this case. The Court notes that plaintiff's claims as to Judge Wilkerson arise from in another matter, and were not part of this case. The Court further notes that once the case was reassigned to Judge Stiehl, Judge Reagan no longer had any participation in the case.

Essentially, in addition to the en banc hearing, plaintiff also seeks to have an "impartial" judge hear this case, but little else (other than the removal of Judge Wilkerson) seems to be sought by the plaintiff. Notably, he specifically states in the motion that, "All I have ever wanted is the truth and the facts. I don't wan any ones [sic] money. I don't want to cause people pain and suffering from a lawsuit." He specifically asks for the "malicious" behavior to stop among the Benton Clerk's Office staff.

At best, the Court can construe the motion as one which attempts to assert bias or prejudice by, first of all, this Judge in the reassignment, and then, potentially by Judge Stiehl. Such a motion would be made either pursuant to 28 U.S.C. §§ 144 or 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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