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Gaspard v. The Breakfast Toms

United States District Court, M.D. Louisiana

April 30, 2019

CHARLES GASPARD (#579511) AND DAVEIGH SCHWALLIER
v.
THE BREAKFAST TOMS, ET AL.

          NOTICE

          RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE.

         Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the United States District Court.

         In accordance with 28 U.S.C. § 636(b)(1), you have fourteen (14) days after being served with the attached Report to file written objections to the proposed findings of fact, conclusions of law and recommendations therein. Failure to file written objections to the proposed findings, conclusions, and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions of the Magistrate Judge which have been accepted by the District Court.

         ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.

         MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

         Before the Court is Record Document 5, filed by Plaintiff, Charles Gaspard (hereinafter, “Plaintiff” or “Gaspard”) on January 16, 2019. The motion seeks various forms of relief, some of which have been resolved by separate order. Plaintiff's Motion to Disqualify the District Judge, as well as Plaintiff's failure to correct certain deficiencies in his filing despite being given an opportunity to do so, will be addressed in this Report and Recommendation.

         I. Law and Analysis

         A. Motion to Disqualify Chief District Judge Shelly D. Dick

         Plaintiff Gaspard requests recusal of Chief District Judge Shelly D. Dick. In support of this request, Gaspard argues that Judge Dick should be recused from this instant matter because she is the district judge assigned to Gaspard's other suit, Gaspard, et al. v. Bourgeois, et al., 18-cv-918-SDD-EWD. (R. Doc. 5 at 3). Plaintiff also suggests that Judge Dick should be recused because she failed to compel Magistrate Judge Wilder-Doomes to take certain actions, or to take those actions herself, in that same litigation. (R. Doc. 5 at 3). Gaspard suggests recusal pursuant to 28 U.S.C. § 455(a) and (b)(1) is warranted because “she has personal bias or prejudice concerning Plaintiff Gaspard, as is clearly evidenced by her illegal actions in” this matter as well as 18-cv-918 by failing to issue or cause the magistrate judge to issue “warrant(s) of arrest in some matter” or “institute[e] prosecution(s).” (R. Doc. 5 at 3-4). At the outset, the Court notes that the other matter to which Plaintiff refers, Civil Action No. 18-cv-918-SDD-EWD, has been dismissed.

         The sections of 28 U.S.C. § 455 under which Plaintiff Gaspard alleges recusal is required provide as follows:

(a) Any justice, judge, or magistrate judge 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.

28 U.S.C. § 455(a) and (b)(1). The goal of this statute “is to promote public confidence in the judicial system by avoiding even the appearance of partiality.” Levitt v. University of Texas at ElPaso, 847 F.2d 221, 226 (5th Cir. 1988). Accordingly, § 455 asks whether “the reasonable man, were he to know all the circumstances, would harbor doubts about the judge's impartiality.” Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1111 (5th Cir. 1980). The reasonable man viewpoint means the facts are assessed based on how they would appear to a “well-informed, thoughtful ...


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