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Ellison v. State

United States District Court, D. Montana, Helena Division

July 11, 2018

STATE OF MONTANA WARDENS, et al., Defendants.


          John Johnston United States Magistrate Judge

         The following motions are pending: Plaintiff Lionel Ellison's motion for partial summary judgment (Doc. 46); Mr. Ellison's Motion for Disqualification of Judge (Doc. 48); Mr. Ellison's Motion for Sanctions (Doc. 49); Mr. Ellison's Motion for Copies (Doc. 50); Defendants' Motion for Extension of Time to File Disclosure Statement (Doc. 59); and Defendants' Motion to Modify Scheduling Order and to Request Plaintiff to file Disclosure statement.

         The Court notes that Mr. Ellison filed a Notice of Appeal on June 4, 2018. (Doc. 65). “As a general rule, the filing of a notice of appeal divests a district court of jurisdiction over those aspects of the case involved in the appeal.” Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997). However, there is an exception to the general rule when the appeal is patently frivolous. Marks v. Clarke, 102 F.3d 1012, 1018 n. 8 (9th Cir. 1996) (citation omitted). Here, since Mr. Ellison has not appealed from an appealable final judgment, the appeal is frivolous and is ineffective to transfer jurisdiction from the district court to the court of appeals. Thus, Mr. Ellison's filing of the interlocutory appeal does not divest this Court of jurisdiction. See Ruby v. Secretary of U.S. Navy, 365 F.2d 385 (9th Cir. 1966)(“Where the deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference to a non-appealable order, is clear to the district court, it may disregard the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction.”)

         I. Mr. Ellison's Motion for Partial Summary Judgment (Doc. 46)

         Mr. Ellison's motion for partial summary judgment fails to comply with Rule 56 of the Local Rules and should be dismissed. Local Rule 56.1 requires that:

(a) Any party filing a motion for summary judgment must simultaneously file a Statement of Undisputed Facts. The Statement must:
(1) set forth in serial form each fact on which the party relies to support the motion;
(2) pinpoint cite to a specific pleading, deposition, answer to interrogatory, admission or affidavit before the court to support each fact;
(3) be filed separately from the motion and brief; and
(4) immediately upon filing of the motion, be e-mailed in a word processing format to each party against whom summary judgment is sought.

         Local Rule 56.1(a). Mr. Ellison has not filed a Statement of Undisputed Facts in accordance with this rule.

         Accordingly, the Motion for Summary Judgment will be denied without prejudice and subject to renewal for failure to file a statement of undisputed facts.

         II.Mr. Ellison's Motion for Disqualification of Judge and Magistrate Judge and Change in Venue for All Plaintiff Actions (Doc. 48)

         Mr. Ellison moves to disqualify both the undersigned and Chief United States District Court Judge Dana Christensen based upon hearsay statements which he contends he heard at the prison. Section 144 of Title 28 of the United States Code provides, in relevant part, as follows:

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 party's affidavit] shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S.C. § 144. The certificate of good faith required under this section must be provided by a member of the bar, or the movant's counsel of record. See Robinson v. Gregory, 929 F.Supp. 334, 337-38 (S.D. Ind. 1996). Consequently, a pro se litigant who has not provided a certificate of good faith from a member of the bar may not employ the disqualification procedures set forth in 28 U.S.C. § 144. Id.; see also Jimena v. UBS AG Bank, 2010 WL 2650714, *3 (E.D. Cal. 2010); United States v. Briggs, 2007 WL 1364682, *1 (D. Idaho 2007). Mr. Ellison has not submitted a certificate of counsel as required by § 144. Thus, Mr. Ellison cannot pursue recusal under this section.

         The Court will, however, consider the merits of Mr. Ellison's motion under the provisions of 28 U.S.C. § 455. “Section 455 imposes an affirmative duty upon judges to recuse themselves.” Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1983). The statute provides, as follows:

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

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