Akers v. Weinshienk

327 F. App'x 811

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 24, 2009
• Docket: 08-1471
• Status: Unpublished

Opinion

ORDER AND JUDGMENT *

MONROE G. McKAY, Circuit Judge.

This Bivens action was dismissed sua sponte by a district court judge named as a defendant. Under 28 U.S.C. § 455(b)(5), a judge must recuse when named as a party to a proceeding. Accordingly, we REVERSE and REMAND this case for reassignment to a judge not named as a party in the complaint. This order neither makes nor implies any view about the appropriate disposition after reassignment.

We GRANT Plaintiffs motion to proceed without prepayment of fees and remind him of his continuing obligation to make partial payments until the filing fee has been paid in full. We DENY all other pending motions.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.

After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2). Therefore, this case is ordered submitted without oral argument.