Moore v. Garnand, 4:19-cv-00290

Plaintiffs Greg and Patricia Moore filed a 42 U.S.C. § 1983 action alleging First and Fourth Amendment violations from a Tucson Police Department arson investigation related to the Forgeus Apartments.
The case was referred to Magistrate Judge Leslie A. Bowman for all pretrial proceedings under 28 U.S.C. § 636(b)(1).
Magistrate Judge Bowman initially applied the law enforcement investigatory privilege to TPD files; the district court affirmed but ordered in camera submissions and direction to ascertain a reasonable terminus for the criminal investigation.
Plaintiffs previously moved for recusal of the district judge; that motion was denied as untimely, but the court ordered an ex parte supplement from defendants and subsequently lifted the investigatory-privilege protection for TPD files.
Plaintiffs moved to (1) remove the magistrate judge from the case, (2) set an immediate hearing on all pending motions, and (3) require expeditious rulings, arguing the magistrate’s delay and asserting the district court’s power under § 636(b)(1)(A) includes removal.
Defendants opposed, arguing plaintiffs cited no authority for removal under § 636(b)(1)(A), that recusal/disqualification under §§ 144 and 455 is the proper framework, and that plaintiffs failed to comply with procedural requirements; the district court denied plaintiffs’ motion and left the reference to Magistrate Judge Bowman in place.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Authority to remove a magistrate judge under § 636(b)(1)(A)	§636(b)(1)(A) implicitly includes power to remove an appointed magistrate	Plaintiffs cite no authority; removal is not authorized by that provision	Court assumed it had discretion to withdraw the reference but found no basis to do so and denied the motion
Removal based on alleged delay by magistrate	Magistrate Bowman’s delay in ruling on pending motions warrants removal	Delays are not extraordinary given busy dockets; not a basis for removal	Court found the delays unremarkable and denied removal
Proper procedural vehicle for challenge to magistrate	Sought removal under §636(b)(1)(A) rather than recusal statutes	Correct remedy is recusal/disqualification under §§144 and 455; plaintiffs failed to invoke/comply with those statutes	Court observed plaintiffs did not move under §§144/455 and declined to withdraw the reference
Timeliness and procedural compliance for recusal (§144/§455)	(Implicit) recusal/disqualification warranted	Any §144 affidavit was not provided; §455 motion would be untimely	Court noted such a request would be untimely and lacked the required §144 affidavit

No reported cases with official reporter citations are cited in this order. (The opinion primarily discusses statutory authority and procedural history.)