United States District Court, D. Montana, Helena Division
Johnston United States Magistrate Judge
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.
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.”)
Mr. Ellison's Motion for Partial Summary Judgment (Doc.
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
(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.
Rule 56.1(a). Mr. Ellison has not filed a Statement of
Undisputed Facts in accordance with this rule.
the Motion for Summary Judgment will be denied without
prejudice and subject to renewal for failure to file a
statement of undisputed facts.
Ellison's Motion for Disqualification of Judge and
Magistrate Judge and Change in Venue for All
Plaintiff Actions (Doc. 48)
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
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.
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
(a) Any justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which