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JEROME SILO ON HIS OWN BEHALF & ON BEHALF OF ALL O

August 29, 1984

Jerome SILO on his own behalf and on behalf of all other similarly situated
v.
CITY OF PHILADELPHIA, Edgar Campbell, Hon. Edward Bradley, and John or Jane Doe



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 Jerome Silo sought to commence this action on March 8, 1982, by filing a complaint on behalf of himself and a class of inmates of Holmesburg Prison. The gravamen of the complaint is that various officials of the Philadelphia Court of Common Pleas conspired to mislay court papers filed by Mr. Silo and his fellow plaintiff prisoners. Along with his complaint, Mr. Silo filed a petition to proceed in forma pauperis. This matter was originally assigned to Judge Ditter, who referred the petition to proceed in forma pauperis to Magistrate Naythons. On July 8, 1982, Magistrate Naythons filed a report and recommendation. He recommended that Judge Ditter grant the petition to proceed in forma pauperis, but dismiss as frivolous (a) all claims against one defendant, Hon. Edward J. Bradley, Presiding Judge of the Philadelphia Court of Common Pleas, and (b) the claims under 42 U.S.C. §§ 1985 and 1986 against all other defendants. On July 19, 1982, one day late, Mr. Silo filed objections to Magistrate Naythons' report and recommendation.

 Before Judge Ditter could decide whether to approve Magistrate Naython's report and recommendation, Chief Judge Luongo reassigned this matter to me as related to Non-Punitive Segregation Inmates of Holmesburg Prison v. Lyons, Civil Action No. 80-159 (E.D.Pa. filed Jan. 11, 1980). Order of Chief Judge Luongo (Nov. 12, 1982). On November 19, 1982, Mr. Silo filed a motion to vacate Chief Judge Luongo's November 12 reassignment Order. Mr. Silo has also filed a motion to be relieved of "unfavorable judgments" pursuant to Federal Rule of Civil Procedure 60(b).

 Through an unfortunate administrative oversight -- an oversight which seems particularly ironic in the light of Mr. Silo's claim -- I was not made aware of the pendency of this action, Magistrate Naythons' report, and Mr. Silo's motions, until this court's very capable staff attorney, Pamela McKee, Esq., uncovered the dormant file last month. I have now become familiar with this matter and will address the pending motions.

 In this action, Mr. Silo alleges that an employee in the office of the Clerk of Quarter Sessions of the Philadelphia County Court of Common Pleas wrongfully misplaced or destroyed a petition filed by Mr. Silo on behalf of himself and several other inmates of Holmesburg Prison pursuant to a policy or practice of the Court of Common Pleas and the City of Philadelphia. Mr. Silo allegedly sought to file this petition in the state court action of Jackson v. Hendrick, No. 2437, Feb. Term 1971 (Pa. C.P., Phila. County, filed Feb. 1971), which established the rights of certain inmates at Holmesburg. Mr. Silo complains that the Clerk of Quarter Sessions (Edgar Campbell), the Clerk's employee (John or Jane Doe), the President Judge of the Philadelphia Court of Common Pleas (Edward Bradley), and the City of Philadelphia have acted concertedly to deprive Mr. Silo and other pro se prisoner litigants of various constitutional rights by adopting a policy of mishandling pro se court filings.

 1. Motion to Vacate Order of November 12, 1982

 Mr. Silo's motion to vacate Chief Judge Luongo's Order does not contest the relation between this matter, No. 82-1060, and Non-Punitive Segregation Inmates, No. 80-159. Had he contested that relation, it is strongly arguable that Chief Judge Luongo, and not I, should rule on Mr. Silo's motion to vacate. However, Mr. Silo admits the relatedness of the two cases, but contests the reassignment on the basis of allegations that I have a "conflict of interest" arising out of developments in No. 80-159 which would preclude my impartial adjudication of No. 82-1060.

 Assuming arguendo the truth of Mr. Silo's allegations, they do not call into question the propriety of Chief Judge Luongo's Order of reassignment. That Order was a proper implementation of Local Rule of Civil Procedure 3(c)(2), which is mandatory. "If the Chief Judge determines that the cases are related, he shall transfer the later case to the judge to whom the earlier case is assigned. . . ." E.D.Pa.R.Civ.P. 3(c)(2) (emphasis added). Since Mr. Silo acknowledges that No. 82-1060 is related to No. 80-159, it is manifest that the reassignment Order was proper. See MacKenzie v. Anstine, 102 F.R.D. 794 (E.D.Pa.1984).

 Thus, properly considered, Mr. Silo's motion addresses not the propriety of reassignment, but my fitness to handle this case. Accordingly, I shall consider the motion as a petition for recusal. A petition for recusal is properly presented in the first instance to the judge who is being asked to recuse himself.

 Mr. Silo predicates his challenge to my impartiality upon an affidavit of December 26, 1980, which he filed in No. 80-159, and upon a colloquy which I had with him on March 29, 1982. Neither event warranted my recusal in No. 80-159. *fn1" Neither event warrants my recusal here. It is true that, on the basis of my extended acquaintance with No. 80-159, I have formed an impression of Mr. Silo's litigating style. I have formed that impressions -- both positive and negative -- of attorneys who regularly practice at this bar. I have not permitted my impressions of attorneys to color my evaluations of attorneys' clients' causes. Similarly, I will not permit my impression of Mr. Silo to color my evaluation of the cause that he presents here. The accompanying Order, then, denies Mr. Silo's motion to vacate Chief Judge Luongo's reassignment Order of November 12, 1982.

 2. Petition to Proceed In Forma Pauperis

 Mr. Silo has filed a proper petition to proceed in forma pauperis supported by an adequate affidavit. See 28 U.S.C. § 1915(a). The accompanying Order therefore grants Mr. Silo's petition. However, section 1915(d) requires dismissal of a complaint filed in forma pauperis if the court ...


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