Motion to Recuse

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FT. MYERS DIVISION

_________________________

SHERI PATRIOT, ) Case No. 2:05-mc-9-FtM

Plaintiff pro se )

vs. ) Motion to Recuse Magistrate Judge Chappell

UNITED STATES OF AMERICA , ) and have a District Judge continue with case

AMSOUTH BANK, )

Defendants )

_____________________________ )

Plaintiff, Sheri Patriot, hereby files this Motion to Recuse Magistrate Judge Chappell from the instant case for the following reasons:

The 11^th Circuit Court of Appeals has mandated this case be reopened due to two judicial errors in the May 30, 2006 order which the Appeals Court vacated on Feb. 22, 2007. Those specific error explanations follow:

A.     First, in relation to the order regarding the ‘request for a de novo determination’ dated May 30, 2006 and in relation to the order regarding ‘reconsideration’ dated June 13, 2006, the Appellate Court stated:

      “AmSouth’s compliance with the IRS summons did not render this case moot because the district court could have provided a partial remedy by ordering the IRS to destroy or return all copies of the documents produced by AmSouth. See Church of Scientology v. United States , 113 S. Ct. 447, 450 (1992). The district court erred in denying Redeker-Patriot’s “motion for a de novo determination” as moot”.

B.     Second, with regard to Plaintiff’s Petition to Quash IRS 7609 Third-Party Summons filed May 23, 2005, the Appellate Court stated:

       “we have held that, where the legality of an IRS summons is at issue, a taxpayer has a minimal right to discovery which can be fulfilled through an evidentiary hearing at the district court. United States v. Harris, 628 F.2d 875, 881 (5^th Cir. 1980). The district court erred in denying Patriot the opportunity to conduct discovery before denying her “motion to request a de novo determination.”

District Judge Steele who made the above errors, basically affirmed the prior orders of Magistrate Judge Chappell because he believed the Magistrate had been correct with ‘her’ prior decisions. The Appellate Court disagreed since the Appellate Court vacated Judge’s Steele’s order. In essence, all the denials for this case issued by the Magistrate Judge in 2005 were in error, as well. [Emphasis in bold by Petitioner].

Plaintiff filed her Petition to Quash IRS 7609 Third-Party Summons on May 23, 2005. (This case will be two years old very shortly). From the beginning, Magistrate Judge Chappell continuously made mistakes and improper decisions. A list of those mistakes follow:

A.     May 24, 2005, the Magistrate issued an ‘endorsed denial’ of Plaintiff’sPetition to Quash IRS 7609 Third-Party Summons. Plaintiff received a computer printout of said denial in the mail. There was no explanation for the denial. Plaintiff phoned the court to request a copy of said denial and was told by a clerk “there was nothing to copy; an endorsed denial is verbal”. The verbal denial issued within 24 hours after the filed Petition was not based on ‘findings of fact’ or ‘conclusions of law’. [Emphasis in bold by Petitioner] See Exhibit A attached hereto and made a part of this motion.

B.     After Petitioner filed another motion on Thursday, June 2, 2005. Magistrate Chappell instantly issued a ‘Final Order’ on Monday, June 6, 2005.   In that written document, the Magistrate incorrectly stated, at least six times, her reasons why she was denying the Petition to Quash the ‘Subpoena’. The Magistrate did not make a typo six times. The Magistrate erroneously believed the relevant document of the Petition to Quash IRS 7609 Third-Party Summons was a ‘subpoena’. It was not! It was a ‘summons’. But the Magistrate incorrectly treated the document as if it were a subpoena. There is a big difference between a summons and a subpoena.   When Plaintiff brought this judicial mistake to the attention of the Magistrate, in order to correct the record, the Magistrate refused to make the corrections. [Emphasis in bold by Petitioner]

C. This case was marked “CLOSED” on PACER sometime in September, 2005.When Plaintiff phoned the court office to inquire why the case was marked “CLOSED”, she was told by a court deputy “a computer error had occurred”. (Computer errors of this type are always caused by human error). Plaintiff was told in order to correct the ‘computer error’ and re-open the case,Plaintiff would have to re-file an ‘unanswered’ motion for reconsideration filed by Plaintiff on June 15, 2005. Plaintiff, with great frustration, did as she was told and re-filed said motion on September 28, 2005.

D.   Magistrate Chappell finally answered the June 15, 2005 motion by issuing and signing another ‘Final Order’ on December 1, 2005.   In the Dec. 1, 2005 order the Magistrate erroneously implied the delay of that order was due to Petitioner/Appellant technical error. That was a falsehood as the court deputy already told Petitioner it was a ‘computer error’(made by the court).  [Emphasis in bold by Petitioner]

          E. Due to the improper ‘endorsed denial’, the court office never issued the consent form entitled Certificate of Interested Persons and Corporate Disclosure Statement to any of the parties when the Petition to Quash IRS 7609 Third-Party Summons was filed. Due to that mistake, Plaintiff never had the opportunity afforded her under 28 U.S.C. Sec. 636(b), (c).   However, Plaintiff is stating NOW, in this document, that under the above statute, she is exercising her right to withhold consent to continue this case under a magistrate judge without adverse substantive consequences.

            F. With regard to said Certificate, Petitioner continuously checks the docket for this case on PACER. Printouts of the docket, beginning in June, 2005 when Petitioner first learned about PACER, throughout the course of this case are in the possession of the Petitioner. When Petitioner discovered she was supposed to have been mailed said Certificate immediately after she had filed her Petition to Quash IRS 7609 Third-Party Summons, that deficiency of the court was brought up in her Motion to ‘request a de novo determination’ which was filed April 11, 2006. During the preparation for that motion, Petition noticed that a ‘new’ item had been added to the docket sometime after the date of May 23, 2005, when the item regarding to the consent forms really should have been issued and entered.   Apparently, when Petitioner filed her Notice of Appeal on June 29, 2005 the court checked the docket and realized the consents had never been issued.   To cover up that mistake, the ‘new’ second item on the Docket list was added, after the fact. In essence, the docket/record was corrupted. See Exhibit B attached hereto and made a part of this motion. Petitioner made a written formal complaint to the Clerk of the District Court in Orlando on April 20, 2006 and received no legitimate explanation.  It is Petitioners’ understanding that the judge in charge of a case is ultimately the individual responsible for all errors. Magistrate Judge Chappell was always in charge of this case, and therefore, this matter is just another error attached to her.

          Magistrate Judge Chappell has already made numerous errors during the instant case. Her errors have caused extreme hardship on Petitioner and Petitioner’s family.    Perhaps the District Judge who referred this case to this particular Magistrate, again, thought to himself, ‘Judge Chappell started this mess, so let her resolve it’. If that was the District Judge’s thought process, then Petitioner understands his referral. Nevertheless, Petition will not agree with any referral to a Magistrate Judge. Petitioner does not want the possibility of needing to file another ‘de novo determination’ to get a real ‘Final Order’ resulting in more wasted time.

3. Finally, and most importantly, too many errors occurred during the first year of this case to be considered ‘just a coincidence’. Magistrate Judge Chappell’s improper actions, numerous errors described in the previous four pages of this document, and her apparent lack of respect for a pro se litigant, indicate her strong prejudice against this Petitioner. [Emphasis in bold by Petitioner]

In conclusion, Petitioner has stated seven mistakes in bold type throughout this document which were made by Magistrate Judge Chappell in this instant case. This Magistrate has already displayed incompetent, arrogant and significantly prejudicial behavior towards this Petitioner. Therefore, Petitioner respectfully moves this court to enter an order to recuse Magistrate Chappell from this case, and this case be moved and heard in front of an unbiased district judge.

Certification of Service: I do hereby certify that on this date, I sent properly a copy of this notification to opposing counsel by depositing a copy thereof, postage prepaid, in the United States mail addressed to the following:

James R. Klindt, Acting U. S. Attorney AmSouth Bank, Legal Dept.

Philip Doyle, Trial Attorney, Tax Division P. O. B. 11007

U.S. Department of Justice Birmingham ,AL 35288

P. O. B. 14198 AND

Ben Franklin Station

Washington ,D.C. 20044

______________________________________ ______________________________

Sheri Patriot Date

Cape Coral , FL 33904

239.826.2200