Gibson v. Zavaras et al

Filing 193

ORDER. Plaintiffs Motion to Judge Daniel to Dismiss Judge Mix for Lies, Blatantly Ignoring Facts Presented to the Court Involving Perjury on Part of Defendants & Refusal to Forward Appeals by Plaintiff 185 is DENIED. By Magistrate Judge Kristen L. Mix on 12/21/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02328-WYD-KLM
WELLMAN GIBSON,
Plaintiff,
v.
SGT. VERENA PACHECO,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Judge Daniel to Dismiss
Judge Mix for Lies, Blatantly Ignoring Facts Presented to the Court Involving Perjury
on Part of Defendants & Refusal to Forward Appeals by Plaintiff [Docket No. 185; Filed
November 10, 2011] (the “Motion”).
IT IS HEREBY ORDERED that the Motion to Recuse is DENIED for the reasons set
forth below.
This is the second request by Plaintiff to have the undersigned Magistrate Judge
recused from all further proceedings in his case. See Motion to Disqualify Magistrate
Judge Mix for Bias and Prejudice with Supporting Affidavit [#96]; Order Denying Plaintiff’s
Motion to Recuse [#100]. As grounds for recusal, Plaintiff contends that I have entered
several rulings which are adverse to his interests. See Motion [#185] at 1-2. Specifically,
Plaintiff avers that I have “made statements pertaining to Plaintiff’s ability to read & write
& also pertaining to the condition of Plaintiff after surgery;” that I have made my rulings

based only Defendants’ filings; that I have “threatened the Plaintiff on more than one
occasion & accused Plaintiff of lying when in fact Plaintiff proved to the Court Def. were
lying & not Plaintiff;” and that I have allowed Defendants to submit false affidavits. See id.
He does not mention any specific ruling in his Motion.
Pursuant to 28 U.S.C. § 455(a), a Magistrate Judge shall disqualify herself “in any
proceeding in which [her] impartiality might reasonably be questioned.” In the Tenth Circuit,
courts use a “reasonable person” standard in applying the statute. See, e.g., Hinman v.
Rogers, 831 F.2d 937, 939 (10th Cir. 1987); see also United States v. Cooley, 1 F.3d 985,
993 (10th Cir. 1993) (“The standard is purely objective. The inquiry is limited to outward
manifestations and reasonable inferences drawn therefrom. In applying the test, the initial
inquiry is whether a reasonable factual basis exists to call the judge’s impartiality into
question.”).
The purpose of the statute is not to provide litigants with “a veto power over sitting
judges, or a vehicle for obtaining a judge of their choice.”

Cooley, 1 F.3d at 993.

Moreover, “a judge has a strong duty to sit when there is no legitimate reason to recuse.”
Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 659 (10th Cir. 2002)
(citation omitted). “‘[U]nsubstantiated suggestions, speculations [and] opinions[]’ are
insufficient to establish even the appearance of any bias, prejudice, or misconduct that
would warrant judicial recusal.” Carpenter v. Boeing Co., 456 F.3d 1183, 1204 (10th Cir.
2006) (citation omitted).
Although Plaintiff’s dissatisfaction with the Court is manifest, there is no basis for
concluding that my impartiality in this matter might reasonably be questioned. Indeed, the
Tenth Circuit has made clear that although recusal motions are frequently based upon
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speculation or beliefs, prior adverse rulings in the proceeding, and/or baseless personal
attacks on the judge by a party, none of these circumstances warrants recusal. Nichols v.
Alley, 71 F.3d 347, 351 (10th Cir. 1995); see also Liteky v. United States, 510 U.S. 540,
555 (1994) (“Judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion. . . . [Further], judicial remarks during the course of a trial that are critical
or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.”).
To the extent that Plaintiff takes issue with my involvement in resolving motions he
would prefer were handled by Judge Daniel, I note that Judge Daniel has expressly
authorized me to participate in this case and to issue rulings accordingly [#15]. Further, I
note that on May 28, 2010, Judge Daniel struck Plaintiff’s motion to strike all of my prior
rulings and informed Plaintiff that I have “appropriately exercised [my] jurisdiction over this
case.” Order [#99] at 2. Finally, to the extent that Plaintiff seeks review of any specific
ruling, the proper method is to file an objection. See id.
Simply put, there is no reason why my impartiality might objectively or reasonably
be questioned in this case. The allegations and accusations made in the Motion are
unsubstantiated and insufficient. My duty remains to hear the case as assigned.
Dated: December 21, 2011

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