Tuesday, March 27, 2018

Motion for Recusal EXAMPLE


THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SANJAY TYAGI et al.,                                                          )   
                                                                                                )           No. 16 cv 11236
                        Plaintiffs,                                                        )           Hon. Thomas M. Durkin
                                                                                                )           Judge Presiding
            v.                                                                                 )          
                                                                                                )          
SHELDON, et al.,                                                                   )
                                                                                                )                                                                                   Defendants.                                                     )
                                                                                                )
           

PLAINTIFF’S MOTION FOR RECUSAL AND DISQUALIFICATION OF HONORABLE JUDGE THOMAS M. DURKIN

           

INTRODUCTION AND BACKGROUND


The integrity of our judicial system rests, in large part, upon the assumption that judges will regard the matters set before them with impartiality. The United States Constitution contains various safeguards to ensure that, where a judge is unable to regard a particular matter impartially, that judge shall be removed from considering the case.
The story Plaintiffs now set forth is rather simple: Honorable Judge Thomas M. Durkin simply abhors Pro Se plaintiffs who attempt to assert their constitutional rights with respect to deprivation of constitutional rights and follow the rules of Federal Rules of Civil Procedure. Honorable Judge Thomas M. Durkin’s abhorrence of such assertions of deprivations of constitutional rights and Federal Rules of Civil Procedure has risen to a level such that a neutral observer would have reasonable grounds to question Honorable Judge Thomas Durkin’s impartiality. Indeed, in light of Honorable Judge Thomas Durkin’s conduct, Plaintiffs contend that it would be impossible to convince a neutral observer that Honorable Judge Thomas Durkin regards this particular type of case impartially. 
Honorable Judge Thomas Durkin’s conduct with respect to Plaintiffs have unambiguously established the deep-seated hostility with which he regards this particular type of case. There are numerous examples.
Honorable Judge Thomas Durkin allowed defendants more than 4 months to answer the Initial Complaint while he has striked off Plaintiffs’ timely filed amended complaints.
One of these examples comes from sua ponte striking of First amended complaints on three different occasions. Pro Se plaintiffs diligently abided by FRCP and court deadlines in filing documents. Honorable Judge Thomas Durkin has not allowed Plaintiffs to file First Amended Complaint. On the first occasion, Honorable Judge Thomas Durkin asked Defendants’ Attorneys “I did not see that amended complaint.  What do you think of it”. After, the Defendants Attorneys responded, the Honorable Judge immediately striked that complaint sua ponte even though the Honorable Judge did not have the opportunity to see that amended complaint. Plaintiffs correctly followed FRCP rules and Counsels of Defendants did not even file responses opposing these Amended Complaints.
Later on, numerous motions of Plaintiffs have been denied sua ponte by Honorable Judge Thomas Durkin even though Counsels of Defendants never filed any responses opposing these Motions.
Honorable Judge Thomas Durkin allowed DCFS Defendants to file documents under seal. When plaintiffs filed a motion and complained to Court that they have not received these sealed documents, Honorable Judge denied these motions.
Honorable Judge Thomas Durkin has ignored the FRCP and controlling Circuit Court and Supreme Court Precedents.  Honorable Judge Thomas Durkin has sua ponte striked out Plaintiffs’ Rule 59 and 52 Motions.
In another instance, the Court dismissed Plaintiffs’ Motion but allowed defendants to file sealed documents in response to that dismissed Motion.
In his private practice with Mayer and Brown, Honorable Judge Thomas Durkin has defended Pharmaceutical companies and any neutral observer will believe that there will be an inherent bias for pharmaceutical companies.  Plaintiffs have become aware of this fact only few days ago.
It will seem to a neutral observer that Pro Se plaintiffs have been held to a very high standard than the Legal Counsels for Defendants.

“Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality…to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified.”  [Emphasis added].  Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).

“…an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality”.  See Parker v. Connors Steel Co.,  855 F.2d 1510 (11th Cir.) (1988) citing Potashnick v. Port City Const. Co., 609 F.2d 1101, 1111 (5th Cir.), cert. denied, 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed. 2d 22 (1980).

“justice must give the appearance of justice”  Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13 (1954).

HONORABLE JUDGE THOMAS DURKIN’S IMPARTIALITY MIGHT REASONABLY BE QUESTIONED


In light of the facts presented herein, it is indisputable that an objective analysis of these facts would reasonably call into question Honorable Judge Thomas Durkin’s impartiality. Honorable Judge Thomas Durkin’s actions, particularly with Lurie Corporate Defendants, clearly indicate an attempt to demolish the case. It appears that Honorable Judge Thomas Durkin’s bias with respect to plaintiffs has deepened over the past few months.

CONSTITUTIONAL RIGHTS


The history of bias and prejudice against pro se litigants within the Courts is long.  Stephen Elias who had been with Nolo Press, the nation’s leading publisher of self-help law books, back in 1997, in an article Bias Against Pro Per Litigants… stated
“From the moment they first contact the court system, most people who want to represent themselves, without a lawyer, encounter tremendous resistance.  Within the closed universe of the courts, this bias is as pernicious as that based on race, ethnic origins or sex.”

“People who cannot afford a lawyer are a rebuke to the organized bar’s monopoly…, because that monopoly is morally—if not legally—justified…the ABA has admitted that 100 million Americans can’t afford lawyers.”

"... the right to file a lawsuit pro se is one of the most important rights under the constitution and laws."  Elmore v. McCammon (1986) 640 F. Supp. 905

CONCLUSION


            Honorable Judge Thomas Durkin has an obvious bias/prejudice against pro se litigants or minorities or maybe just a personal bias/prejudice against Plaintiffs.
The only way in which Honorable Judge Thomas M. Durkin’s conduct, as described herein, would be acceptable is if the Pro Se plaintiffs in this cases were subject, ab initio, to a completely different and higher standard than other plaintiffs and defendants in the court system. A cursory inspection of the Constitution indicates no such differing standard. As such, Honorable Judge Thomas Durkin’s conduct is unambiguously indicative of a degree of bias that is simply not allowed under the purview of 28 U.S.C. § 455.
Ultimately, Plaintiffs are willing to bear a loss on the merits of its case, but Plaintiffs cannot simply stand by while their rights to assert their constitutional rights are summarily denounced simply because they are Pro Se plaintiffs. One of the foundational underpinnings of our judicial system is equality under the law—Plaintiffs will be deprived of this constitutional guarantee should its cases be heard by a judge who has already deemed Plaintiff herein, as well as all similarly situated plaintiffs, guilty of misconduct.
Therefore, Plaintiffs respectfully Moves Honorable Judge Thomas M. Durkin to recuse/disqualify himself.       
Dated:  October 12, 2017                               Respectfully submitted,
/s/ Sanjay Tyagi
Petitioner, Pro Se
/s/ Alka Jagatia
Petitioner, Pro Se
P.O. Box 597124
Chicago, IL 60659
Phone: (312) 278-3425
Email – sanjaytyagi6@gmail.com


CERTIFICATE OF SERVICE


I, hereby certify that I electronically transmitted this document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing on this 12th day of October 2017, which automatically sends notice and a copy of filing to all counsel of record.
Respectfully submitted,
/s/ Sanjay Tyagi
Petitioner, Pro Se
/s/ Alka Jagatia
Petitioner, Pro Se
P.O. Box 597124
Chicago, IL 60659
Phone: (312) 278-3425
Email – sanjaytyagi6@gmail.com                       

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