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Laurence Palmer v. M. O'connor

March 28, 2013

LAURENCE PALMER, PLAINTIFF,
v.
M. O'CONNOR, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a federal prisoner, proceeding without counsel and in forma pauperis. Plaintiff seeks relief under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).*fn1

Plaintiff consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c).

On January 14, 2013, defendant filed a motion to dismiss the first amended complaint. On February 28, 2013, plaintiff was granted an additional twenty-one days in which to oppose the motion. On March 1, 2013, plaintiff filed a motion to recuse counsel for defendant, and a document styled, "Notice of Appeal," in which plaintiff asks the court to accept the prior complaints to include all named defendants, including the Bureau of Prisons. (Dkt. No. 31.)

The court addresses these filings in reverse order below.

1. Request for Reconsideration

The court construes plaintiff's "notice of appeal" as a request for reconsideration of the court's May 25, 2012 order dismissing all defendants and claims, except for plaintiff's claim against defendant O'Connor alleging sexual misconduct. Local Rule 303(b) provides that rulings by magistrate judges are "final if no reconsideration thereof is sought from the Court within fourteen (14) days calculated from the date of service of the ruling on the parties." Id. Plaintiff's request was filed over nine months after the May 25, 2012 order, and therefore is untimely. Thus, plaintiff's March 1, 2013 motion is denied.

2. Motion to Recuse the Assistant U.S. Attorney

Plaintiff seeks to disqualify the assigned U.S. Attorney, as well as the entire U.S. Attorney's Office based on an alleged conflict of interest. Plaintiff alleges the following:

a. He wrote a letter to the U.S. Attorneys inquiring about a criminal complaint to which he never received a response;

b. His complaint is against the Department of Justice and the Bureau of Prisons;

c. In his experience, the U.S. Attorney's Office relies on hearsay, and plaintiff will only present facts; and

d. The Assistant U.S. Attorney is a prosecutor who represents the government, not individuals. (Dkt. No. 30 at 2.)

Disqualifying the U.S. Attorney's Office is "a drastic measure and a court should hesitate to impose it except where necessary." United States v. Bolden, 353 F.3d 870, 878 (10th Cir. 2003). Disqualifying an entire U.S. Attorney's Office implicates separation of powers issues. Bolden, 353 F.3d at 876, citing Flanagan v. United States, 465 U.S. 259, 268-69 (1984) (recognizing that disqualification of an entire U.S. Attorney's Office is almost always reversible error). Bolden, at 876.

Here, the record is devoid of any facts showing that a member of the U.S. Attorney's office has any interest in the outcome of this case, or that the assigned U.S. Attorney has a conflict of interest. First, the fact that plaintiff wrote a letter to the U.S. Attorney about a criminal matter has no bearing or relevance to the instant civil action. Second, as explained above, this action is proceeding as to defendant O'Connor alone. Third, plaintiff's opinions as to the U.S. Attorney's Office are not relevant. Finally, as declared by counsel for defendant, the assigned U.S. Attorney is not a prosecutor, and defendant is not a criminal defendant. This is a ...


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