                                                                           FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                        June 24, 2009
                   UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court



 MONTGOMERY CARL AKERS,
              Plaintiff–Appellant,                       No. 08–1471
 v.                                            (D.C. No. 08–CV–02572–ZLW)
 ZITA L. WEINSHIENK; BOYD N.                               (D. Colo.)
 BOLAND; ROBERT M.
 BLACKBURN; RON WILEY; JACK
 FOX; CHRISTOPHER SYNSVOLL;
 DIANA J. CRIST; MICHELLE
 BOND; WENDY HEIM; RICK
 MARTINEZ; C/O ROY; C/O
 HERMAN; MARK COLLINS; TENA
 SUDLOW; GEORGE KNOX,
              Defendants–Appellees.


                           ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      This Bivens action was dismissed sua sponte by a district court judge

named as a defendant. Under 28 U.S.C. § 455(b)(5), a judge must recuse when



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
       After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2). Therefore, this case
is ordered submitted without oral argument.
named as a party to a proceeding. Accordingly, we REVERSE and REMAND

this case for reassignment to a judge not named as a party in the complaint. This

order neither makes nor implies any view about the appropriate disposition after

reassignment.

      We GRANT Plaintiff's motion to proceed without prepayment of fees and

remind him of his continuing obligation to make partial payments until the filing

fee has been paid in full. We DENY all other pending motions.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




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