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BLACK v. KENDIG
October 28, 2002
BARBIE BLACK, PLAINTIFF,
NEWTON KENDIG, ET AL., DEFENDANTS.
The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge
Currently pending and ready for resolution is Defendant's Motion for
Recusal and Memorandum in Support. After careful consideration and for
the reasons articulated below, defendant's motion will be granted, albeit
for different reasons than the defendant offers.
On January 21, 2000, Judge Sullivan referred this case to me for
settlement. I spoke with and met with the parties on numerous occasions
during which we had frank discussions about this case. On June 26,
2001, I flew to Augusta, Georgia and met with plaintiff personally in the
prison in which she was confined to discuss her case and finalize the
details of the settlement. On July 23, 2001, Judge Sullivan accepted the
settlement agreement and my referral ended.
On May 21, 2002, almost one full year after the parties had ostensibly
reached a settlement, plaintiff moved for reinstatement of his
complaint, expedited discovery, leave to file a second amended
complaint, a preliminary injunction, and a temporary restraining order.
On May 22, 2002, Judge Sullivan re-referred the case to me for a Report
and Recommendation on the pending motions. The parties are now bitterly
divided over the meaning of one provision of the settlement agreement.
The agreement allowed the Bureau of Prisons a three month period during
which it was obliged to create and propose a treatment plan for
plaintiff.*fn1 Dr. Frederick S. Berlin was also to prepare a treatment
plan. Once both proposals were prepared, paragraph 5 of the agreement
The BOP's Medical Director, Dr. Newton E. Kendig, will
review the BOP's assessment and treatment plan,
together with the assessment(s) and treatment plan(s)
prepared by Dr. Berlin and the BOP's consulting doctor
if any. Dr. Kendig will then decide which plan, or
combination of plans, will be offered to plaintiff.
As plaintiff reads this provision, Kendig is obliged to adopt a
treatment plan and order that plaintiff be given estrogen therapy if the
plans recommended it. Defendant denies that this provision imposes any
such obligation on Kendig. As defendant sees it, he can refuse to give
plaintiff estrogen therapy even though, for example, both Dr. Berlin and
the BOP treatment plan recommend it.
Defendant now seeks my recusal.
The pertinent sections of the recusal statute provide:
§ 455. Disqualification of justice, judge, or
(a) Any justice, judge, or magistrate of the United
States shall disqualify himself in any proceeding in
which his impartiality might reasonably be
(b) He shall also disqualify himself in the following
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of
disputed evidentiary facts ...
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