Bingham v. Zavaras et al

Filing 114

ORDER. The Defendants Motion to Dismiss is GRANTED, Binghams motion to recuse Magistrate Shaffer is DENIED, and the Court ORDERS as follows:1. Defendants Zavaras, Timme, Directo, Moore, Milyard, and Lane in both their official and individual capacit ies are dismissed from this action. 2. Because no defendants remain in either Count Two or Count Three, Count Two and Count Three are dismissed. 3. Count One, however, will proceed against Defendants Kochevar, Stoghill, Martin, and Aultma. By Judge David M. Ebel on 7/1/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:10-cv-00604-DME-CBS

MICHAEL WAYNE BINGHAM,
Plaintiff,
v.
ARISTEDES W. ZAVARAS, Executive Director, CDOC,
WARDEN TIMME, FCF,
LT. KOCHEVER,
LT. DIRECTO,
SGT. MARTIN,
SGT. STOGHILL,
JIM MOORE,
WARDEN MILYARD,
C/O CLINTON AULTMAN, and,
JANEEN LANE,
Defendants.
ORDER OVERRULING OBJECTIONS AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on a Motion to Dismiss filed by Defendants Zavaras,
Timme, Directo, Moore, Milyard, and Lane (Doc. 76), Magistrate Judge Shaffer’s
Recommendation (Doc. 105), and Plaintiff Bingham’s objections to that recommendation (Doc.
106). Magistrate Judge Shaffer recommended that Bingham’s claims against these defendants be
dismissed for lack of subject matter jurisdiction and for failure to state a claim upon which relief
can be granted. Bingham objected to that recommendation. Having made “a de novo
determination of those portions of the report . . . [and] recommendations to which objection is

made” as required by 28 U.S.C. § 636(b)(1)(C), the Court overrules Bingham’s objections and
adopts the Recommendation of United States Magistrate.
In his objections, Bingham also requested the removal of Magistrate Judge Shaffer.
Because of Bingham’s pro se status, this Court will construe that as a motion to recuse
Magistrate Shaffer under 28 U.S.C. § 455. (Doc. 106 at 1.) In support of this motion, Bingham
states that “Magistrate Shaffer has acted as an advocate for the defendant(s) and Attorney
General’s Office.” (Id.) Bingham also claims that he “believe[s] Magistrate Shaffer to be
BIAS.” (Id.) The Court disagrees.
Pursuant to 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” In applying § 455(a), the magistrate’s actual state of mind, purity of heart,
incorruptibility, or lack of partiality are not the issue; rather, the issue is whether a reasonable
person, knowing all the relevant facts, would harbor doubts about the magistrate’s impartiality.
Nichols v. Alley, 71 F.3d 347, 350–51 (10th Cir. 1995); United States v. Cooley, 1 F.3d 985, 993
(10th Cir. 1993). This standard is purely objective, and this Court’s inquiry is limited “to
outward manifestations and reasonable inferences drawn therefrom.” Nichols, 71 F.3d at 350–
51. In applying this test, the Court initially inquires “whether a reasonable factual basis exists
for calling the judge’s impartiality into question. Cooley, 1 F.3d at 993.
The Court concludes that no factual basis exists for calling Magistrate Shaffer’s
impartiality into question. Bingham presented only his personal speculation that Magistrate
Shaffer is biased. And recusal must not be mandated “upon the merest unsubstantiated
suggestion of personal bias or prejudice.” Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir.

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1986). Further, to the extent that Bingham’s request is based upon Magistrate Shaffer’s
recommendation, the mere fact that a magistrate judge rules adversely to a litigant does not
establish prejudice or bias. Cf. United States v. Gigax, 605 F.2d 507, 511–14 (10th Cir. 1979)
(concluding that a judge who expressed his opinions and concerns about a defendant’s legal
arguments was not required to recuse himself under § 455), overruled on other grounds by
United States v. Lang, 364 F.3d 1210, 1216 n.3 (10th Cir. 2004). Therefore, the allegations do
not rise to the level of bias under § 455(a).
In conclusion, the Defendants’ Motion to Dismiss is GRANTED, Bingham’s motion to
recuse Magistrate Shaffer is DENIED, and the Court ORDERS as follows:
1. Defendants Zavaras, Timme, Directo, Moore, Milyard, and Lane in both their official
and individual capacities are dismissed from this action.
2. Because no defendants remain in either Count Two or Count Three, Count Two and
Count Three are dismissed.
3. Count One, however, will proceed against Defendants Kochevar, Stoghill, Martin,
and Aultman.
Dated this

1st

day of

July

, 2011.

BY THE COURT:
s/ David M. Ebel
U. S. CIRCUIT COURT JUDGE

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