Opinion
NO. LA CV 15-00790-VBF-MAN
02-26-2015
GARY DALE BARGER, Petitioner, v. PLANT, Respondent.
ORDER
Requesting that the Plaintiff Mail to the Clerk's Office Another Copy of Motion to Disqualify the Magistrate Judge and the District Judge in this Case
Proceeding pro se, California state prisoner Gary Dale Barger filed a habeas corpus petition in the U.S. District Court for the Northern District of California on January 27, 2015. See Document ("Doc") 1. On February 3, 2015, that court issued an order (Doc 6) which transferred the petition here because petitioner attacks a Ventura County Superior Court conviction. The Clerk's Office forwarded to chambers his motion to disqualify the undersigned Judge and the Magistrate Judge, bearing the docket number of this case, but chambers staff misplaced the paper original before it could be scanned and filed.
The Clerk's Office also received Barger's motion to disqualify the undersigned and the Magistrate Judge in C.D. Cal. civil case no. 2:15-00735 ("15-735"), and filed it in that case as of February 23, 2015. By Order issued February 24, 2015 (15-735 Doc 13), the Clerk's Office referred that motion to Judge Otero for decision pursuant to General Order 14-03 (June 2, 2014) at 16:16-19 (Sec. II.F) ("If a motion is made to disqualify a district judge in any case, the motion will be referred to the Clerk for random assignment to another district judge in the same division from a division-specific Motions to Disqualify Deck.").
Earlier today, February 26, 2015, Judge Otero issued an Order (15735 Doc 14) denying the motion to disqualify the District Judge and Magistrate Judge in C.D. Cal. civil case no. 2:1500735.
The Court invites petitioner to submit another copy of the motion to the Clerk's Office. See Frankel v. NYC Dep't of Enviro. Protection, 2008 WL 2156722, *1 (S.D.N.Y. May 20, 2008) (after plaintiff sent a letter stating that the record should reflect that he had submitted a "Replacement Exhibit 20", the Pro Se Office "forwarded to me a 2/26/08 letter sent to it by Mr. Frankel (copy enclosed). Attached to it are . . . stamps, but no copies of the 'replacement exhibit 20.' They may have been misplaced. Accordingly, I request Mr. Frankel to mail another 'replacement Exhibit 20' . . . ."); Sefton v. Webbworld, Inc., 2001 WL 1512067, *2 (N.D. Tex. Nov. 21, 2001) ("The Copyright Office informed Sefton that, while its records reflected that it had received and application and deposit . . . on June 9, 1997, it could not find the application and deposit. Consequently, the Copyright Office requested Sefton to resend the materials so it could finish processing his application.").
Cf. Miatke v. Comm'r of Soc. Sec., 2009 WL 909619, *5-*6 (N.D. Iowa Apr. 2, 2009) ("While it is unclear why the University of Wisconsin medical records were not included in the administrative record, it is clear that attorney Manus faxed or attempted to fax the additional evidence to the ALJ in February 2007", and the administrative law judge should have "attempt[ed] to find these medical records or require[d] . . . Manus to re-fax them if the February 2007 fax was incomplete or lost") (emphasis added).
ORDER
Petitioner MAY MAIL the Clerk's Office another copy of his motion to disqualify the Magistrate Judge and District Judge in this case, civil case number 2:15-00790-VBF-MAN.
If the Court receives such motion, it will be filed and assigned to District Judge Otero for decision. DATED: February 26, 2015
See C.D. Cal. General Order 14-03 (June 02, 2014) (Section II.F, Motions to Disqualify) at page 17 lines 15-17 ("If more than one motion to disqualify the same judge is made in the same case or in related or consolidated cases that are assigned to the same judge, all such motions will be assigned to the judge who determined the initial motion to disqualify.").
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/s/_________
VALERIE BAKER FAIRBANK
SENIOR UNITED STATES DISTRICT JUDGE