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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