United States District Court, W.D. New York
June 1, 2005.
KENNETH J. BELLET, Plaintiff,
CITY OF BUFFALO, et al., Defendants.
The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
DECISION & ORDER
1. Plaintiff commenced this action on January 14, 2003, by
filing a pro se Complaint in the United States District Court
for the Western District of New York.
2. On June 27, 2003, Plaintiff filed a Motion for Judicial
Recusal, asking this Court to disqualify itself from presiding
over this case because it allegedly evidenced bias against
Plaintiff in a prior action. By Order entered on July 18, 2003,
this Court denied Plaintiff's Motion for Judicial Recusal.
3. Plaintiff filed a Notice of Appeal and a Notice of Objection
to the Presiding Judge on August 15, 2003, and September 12,
2003, respectively. A review of the official docket reveals that
a Mandate was issued by the Second Circuit Court of Appeals
resolving Plaintiff's appeal on September 27, 2004.
4. Acting under the presumption that Plaintiff's appeal had
been resolved, this Court entered a Decision and Order dismissing
several of Plaintiff's claims on November 21, 2004. On December
10, 2004, Plaintiff filed second motion requesting that this
Court disqualify itself from presiding over this case. By the
same motion, Plaintiff asked this Court to vacate its November
21, 2004 Decision and Order.
5. Subsequently, this Court discovered that the
above-referenced Mandate was erroneously docketed in this case, and that Plaintiff's appeal is
still pending at the Second Circuit Court of Appeals.
IT HEREBY IS ORDERED that the Clerk of the Court is directed to
strike the erroneously filed Mandate (Docket No. 9) from the
official docket relating to this case.
FURTHER that Plaintiff's Second Motion for Judicial Recusal
(Docket No. 11) is DENIED as premature.
FURTHER that this Court's November 21, 2004 Decision and Order
(Docket No. 10) is VACATED pending resolution of Plaintiff's appeal.
FURTHER that Plaintiff's Motion to Vacate this Court's November
21, 2004 Decision and Order (Docket No. 11) is DENIED as moot.
FURTHER that the Clerk of the Court is directed to reinstate the
above-referenced Decision and Order when a mandate resolving Plaintiff's
appeal is returned by the Second Circuit Court of Appeals.
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