Carbajal v. Warner et al

Filing 918

ORDER. Plaintiff Dean Carbajal's Motion for Change of Judge Based on the Recent Discovery of Judge Philip Brimmer's Extrajudicial Bias 904 is denied. Signed by Judge Philip A. Brimmer on 02/01/17. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02862-PAB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity, and
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before me on Plaintiff Dean Carbajal’s Motion for Change of
Judge Based on the Recent Discovery of Judge Philip Brimmer’s Extrajudicial Bias
[Docket No. 904], wherein plaintiff Dean Carbajal seeks my recusal pursuant to 28
U.S.C. §§ 144 and 455. I will address Mr. Carbajal’s arguments under § 144 first and
then address his arguments under § 455.
A. 28 U.S.C. § 144
Section 144 of Title 28 of the United States Code provides that, when a party
“files a timely and sufficient affidavit that the judge before whom the matter is pending
has a personal bias or prejudice either against him or in favor of any adverse party,
such judge shall proceed no further therein, but another judge shall be assigned to hear
such proceeding.” An affidavit of bias and prejudice must be timely, sufficient, made by

a party, and accompanied by a certificate of good faith of counsel or of the pro se party.
Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir.1987) (per curiam); United States v.
Boyd, 208 F.3d 638, 645 (7th Cir. 2000) (pro se party does not need certificate of
counsel), reversed on other grounds, Boyd v. United States, 531 U.S. 1135 (2001).
Although a court must accept the truth of the facts alleged in the affidavit under § 144,
United States v. Ritter, 540 F.2d 459, 462 (10th Cir. 1976) (per curiam), the court
construes that affidavit strictly against the party seeking recusal. Weatherhead v. Globe
International, Inc., 832 F.2d 1226, 1227 (10th Cir.1987).
Mr. Carbajal’s declaration correctly indicates that I used to work for the Denver
District Attorney’s Office and that, as a result, I know former Denver District Attorney
Mitchell Morrissey and defendant Jeffrey Watts, who once worked as an investigator for
the DA’s Office.1 However, I left that office in 2001 and being acquainted with someone
is not a sufficient grounds for disqualification. “Judges are not required to recuse when
they have merely a casual relationship with a victim, attorney, witness, or litigant
appearing before the court; occupying the bench does not require withdrawal from
society.” Bragg v. Chavez, No. CIV 07–0343 JB/WDS, 2007 WL 5685116, at *3
(D.N.M. Nov. 9, 2007) (citing Sexson v. Servaas, 830 F. Supp. 475, 482 (S.D. Ind.
1993)).
As evidence of bias, Mr. Carbajal notes that I did not authorize the issuance of a
trial subpoena for Mr. Morrissey. Docket No. 904 at 19. The reason that I did not allow
Mr. Carbajal to call Mr. Morrissey as a trial witness, as the transcript of the December
1

Other than Mr. Watts, I do not recall Joe Quintana and the other persons that
plaintiff refers to on page 7 of his motion.
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16, 2016 trial preparation conference will reflect, is that Mr. Carbajal was not able to
identify any relevant testimony that Mr. Morrissey would have other than that based on
Mr. Carbajal’s unfounded speculation. Mr. Carbajal claimed that Mr. Morrissey was
necessary to attack collaterally certain convictions of Mr. Carbajal, which testimony,
assuming Mr. Morrissey had personal knowledge of such convictions, would
nevertheless be improper. Mr. Carbajal also suspected that Mr. Morrissey had
conducted an investigation of the Watts incident, but that assumption is speculative and
was denied by counsel for Mr. Watts, who had spoken with Mr. Morrissey about that
subject. Mr. Carbajal further assumed that Mr. Morrissey would be familiar with the
DA’s policy on use of investigator cars, which testimony would be irrelevant even if true
since Mr. Carbajal could not predicate his excessive force claim on Mr. Watts not
following internal policies regarding investigators’ use of office cars. Plaintiff also
believed that Mr. Morrissey would know the reasons that Mr. Watts eventually left the
DA’s office, which was speculative and irrelevant to what happened during the incident
that Mr. Carbajal bases his claim upon. Given these circumstances, a reasonable
person would not perceive bias in my having refused to issue a trial subpoena for Mr.
Morrissey. See Bryce v. Episcopal Church in Diocese of Colo., 289 F.3d 648, 659-60
(10th Cir.2002) (“The recusal statute should not be construed so broadly as to become
presumptive or to require recusal based on unsubstantiated suggestions of personal
bias or prejudice.”).
Mr. Carbajal’s declaration states that I have “overlooked the fraudulent conduct
of the Denver Defendants and State Defendants.” Docket No. 904 at 19. It is not clear
what plaintiff refers to, but disqualification cannot be based on the mere fact of an
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unfavorable ruling, Liteky v. United States, 510 U.S. 540, 555 (1994), especially if that
ruling was accepting a magistrate judge’s recommendation.
Mr. Carbajal’s declaration states that he has sued an attorney that works for the
law firm of Holland & Hart, where my sister is a partner, and therefore this case and
“upcoming civil actions” will directly impact my sister’s finances and reputation. Docket
No. 904 at 19. Plaintiff’s declaration does not identify the attorney who he has sued,
but his motion identifies that attorney as Michael Carrigan. Id. at 2. Mr. Carbajal did
not sue Mr. Carrigan in this case, the case in which he did sue Mr. Carrigan is not
related to this one, and therefore there is no basis for me to recuse.2
The remainder of Mr. Carbajal’s declaration is based on his assumptions that I
will be unfair. An affidavit, or in this case a declaration, is insufficient if it merely states
conclusions, rumors, beliefs, and opinions; it must “state with required particularity the
identifying facts of time, place, persons, occasion, and circumstances.” Hinman, 831
F.2d at 939. The procedural requirements of this provision are strictly construed.
United States v. Hines, 696 F.2d 722, 729 (10th Cir. 1982). 3 For the reasons stated
above, I find that neither Mr. Carbajal’s declaration nor the arguments in his motion are
sufficient under 28 U.S.C. § 144 to justify my recusal.

2

Mr. Carbajal sued Mr. Carrigan in Case Number 12-cv-03231-PAB-KLM.
Judge Robert Blackburn dismissed plaintiff’s claims against Mr. Carrigan on March 31,
2014. See Docket No. 198 at 10 (12-cv-03231-PAB-KLM ).
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Plaintiff attaches declarations of Luis Leal and John Shull, two of plaintiff’s
witnesses. Given that these declarations were not made by a party and are not
affidavits, it is unclear what weight, if any, I need to give them under Section 144.
Nevertheless, I have considered the information in each of them in my analysis of
Sections 144 and 455(a).
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B. 28 U.S.C. § 455(a)
Mr. Carbajal also moves under 28 U.S.C. § 455 for me to recuse. Section 455(a)
states: “Any justice, judge or magistrate of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be questioned.” Section
455(b) states: “He shall also disqualify himself in the following circumstances: (1)
Where he has a personal bias or prejudice concerning a party. . . .” Under Section 455,
a judge must recuse himself when there is the appearance of bias, regardless of
whether there is actual bias. Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995). “The
test is whether a reasonable person, knowing all the relevant facts, would harbor doubts
about the judge’s impartiality.” Hinman, 831 F.2d at 939 (citation omitted). If the issue
of whether § 455 requires disqualification is a close one, the judge must be recused.
Nichols, 71 F.3d at 352.
On the other hand, the Tenth Circuit has noted that a judge also has “as strong a
duty to sit when there is no legitimate reason to recuse as he does to recuse when the
law and facts require.” Id. at 351. “[S]ection 455(a) must not be so broadly construed
that it becomes, in effect, presumptive, so that recusal is mandated upon the merest
unsubstantiated suggestions of personal bias or prejudice.” Franks v. Nimmo, 796 F.2d
1230 (10th Cir.1986) (quoting Hines, 696 F.2d at 729); see also United States v.
Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (“The statute is not intended to give litigants a
veto power over sitting judges, or a vehicle for obtaining a judge of their choice.”).
Mr. Carbajal does not separate his § 455 arguments from his § 144 arguments in
his motion. As a result, it is not clear how his arguments under § 455 differ. However,

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the above-mentioned arguments about my knowing Mr. Morrissey and Mr. Watts from
my employment with the Denver DA’s Office would not cause a reasonable person,
knowing all the relevant facts, to consider me to be biased. See Nichols, 71 F.3d at
351 (“mere familiarity with the defendants” not ordinarily grounds for recusal). This is
especially true in light of my rulings in this case. The case was assigned to me on
January 27, 2016. Docket No. 780. On March 29, 2016, I ruled on the m agistrate
judge’s recommendation that the Court grant Mr. Watts’ Motion for Summary Judgment
[Docket No. 697]. Docket No. 804. As I noted at the tim e, Mr. Carbajal did not object to
Mr. Watts’ summary judgment motion. He also did not object to the magistrate judge’s
recommendation to grant the motion. Had I accepted the recommendation, Mr. Watts
would have been dismissed as a party and the claim that involved Mr. Morrissey as a
witness would have been dismissed. However, based on my own review of the law, I
determined that Mr. Watts was not entitled to summary judgment on plaintiff’s
excessive force claim. Id. at 16. A reasonable person, knowing all the relevant facts,
would not consider my decision to rule against Mr. Watts to be evidence of bias in favor
of Mr. Watts, especially when Mr. Carbajal failed to oppose the motion or object to the
recommendation.
Similarly, a reasonable person, knowing all the relevant facts, would not perceive
bias on my part based on Mr. Carbajal having named Mr. Carrigan as a defendant in an
unrelated lawsuit, especially given that Mr. Carrigan was dismissed as a defendant
years ago by a different judge. Mr. Carbajal’s suggestion that he plans on suing Mr.
Carrigan in the future provides no additional grounds for recusal.

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Wherefore, Plaintiff Dean Carbajal’s Motion for Change of Judge Based on the
Recent Discovery of Judge Philip Brimmer’s Extrajudicial Bias [Docket No. 904] is
denied.

DATED February 1, 2017.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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