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BLACK v. KENDIG

October 28, 2002

BARBIE BLACK, PLAINTIFF,
V.
NEWTON KENDIG, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge

MEMORANDUM OPINION

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.

BACKGROUND

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 provided:

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 magistrate judge
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts ...

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