Toney v. Berkebile et al

Filing 101

ORDER denying 98 Motion to Change Venue. by Magistrate Judge Boyd N. Boland on 12/11/2013.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-00111-RM-BNB
JOE M. TONEY, JR.,
Plaintiff,
v.
WARDEN BERKEBILE,
A.W. HALL,
A.W. KUTA,
S.I.S. REDDEN,
R. MARTINEZ,
MS. RANGEL,
MS. SUDLOW, and
MR. MADISON,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the plaintiff’s Motion for a Change of Venue [Doc. #98, filed
12/04/2013] (the “Motion”). The plaintiff requests a “change of venue” because he did not
consent for me to “reside over” the case and he is not receiving “fair and impartial proceedings.”
Motion, ¶¶ 2-3. I construe the Motion [Doc. # 98] as a request that I recuse, and it is DENIED.
The issue of recusal is addressed by two separate statutes. Disqualification of a judge
under 28 U.S.C. § 144 requires the following showing:
Whenever a party to any proceeding in a district court makes and
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
proceedings.

The plaintiff has not submitted a supporting affidavit with his Motion. Therefore, he
does not provide a basis upon which I should recuse under 28 U.S.C. § 144.
A party may also seek the disqualification of a judge under 28 U.S.C. § 455. Section 455
provides in relevant part:
(a) Any justice, judge, or magistrate [judge] of the United States
shall disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning the
proceeding. . . .
The decision to recuse is committed to the sound discretion of the district court. In
exercising that discretion, the Tenth Circuit Court of Appeals has provided the following
guidance:
Under § 144, the affidavits filed in support of recusal are strictly
construed against the affiant and there is a substantial burden on
the moving party to demonstrate that the judge is not impartial.
Conclusions, rumors, beliefs and opinions are not sufficient to
form a basis for disqualification. Under § 455, the test is “whether
a reasonable person, knowing all the relevant facts, would harbor
doubts about the judge’s impartiality. Moreover, there is as much
obligation for a judge not to recuse when there is no occasion for
him to do so as there is for him to do so when there is.
United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992)(internal citations omitted).
Similarly, in United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993), the circuit court
reiterated:
Thus, in addition to other factors, this and other courts have
identified various matters arising in cases where §§ 144, 455(a), or
455(b)(1), which will not ordinarily satisfy the requirements for
disqualification . . .: (1) Rumor, speculation, beliefs, conclusions,
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innuendo, suspicion, opinion, and similar non-factual matters; (2)
the mere fact that a judge has previously expressed an opinion on a
point of law, or has expressed a dedication to upholding the law or
a determination to impose severe punishment with the limits of the
law upon those found guilty of a particular offense; (3) prior
rulings in the proceeding, or another proceeding, solely because
they were adverse; (4) mere familiarity with the [parties], or the
type of charge, or kind of defense presented; (5) baseless personal
attacks on or suits against the judge by a party; (6) reporters’
personal opinions or characterizations appearing in the media . . .;
and (7) threats or other attempts to intimidate the judge.
(Internal citations omitted.)
Also applicable is the holding of the United States Supreme Court in Liteky v. United
States, 510 U.S. 540, 555-56 (1994):
It is enough for present purposes to say the following: First,
judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion. In and of themselves, (i.e., apart from
surrounding comments or accompanying opinion), they cannot
possibly show reliance upon extrajudicial source; and can only in
the rarest circumstances evidence the degree of favoritism or
antagonism required . . . when no extrajudicial source is involved.
Almost invariably, these are proper grounds for appeal, not for
recusal. Second, opinions formed by the judge on the basis of
facts introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis for a
bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible.
The Motion is not a model of clarity. The plaintiff states that the defendant’s counsel and
I “reside over inmate Robert Blackman case”; the plaintiff’s claims are similar to Mr.
Blackman’s claims; and therefore, a conflict of interest exists. Motion, ¶¶ 5-7. The plaintiff
does not explain the nature of the conflict, and I am unable to discern any.
The plaintiff also states that in a minute order issued on November 21, 2013 [Doc. #90], I
would not allow the him to file a reply in support of his motion. Id. at ¶ 8. The plaintiff has
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mischaracterized the record. I ordered a response to the motion from the defendants, and I stated
that “[n]o reply will be accepted without leave of court.”
The plaintiff complains that he has not received a response to his Second Request for
Production of Documents, the defendants have failed to comply with Rule 26(f), and he is being
prohibited from participation in discovery. Motion, ¶¶ 9-11. The plaintiff filed a motion to
compel discovery on November 20, 2013 [Doc. #88]. The defendant’s were ordered to respond
to the motion on or before December 11, 2013. The plaintiff’s discovery concerns have not been
addressed by the court because the issue is not fully briefed.
Finally, the plaintiff states that “the court consistently is denying plaintiff’s motion . . . .”
Id. at ¶ 11. Adverse rulings, without more, do not satisfy the requirements for disqualification.
Cooley, 1 F.3d at 993; Liteky, 510 U.S. at 555-56.
The plaintiff has failed to set forth any reasons to justify my recusal under 28 U.S.C. §
455 or 28 U.S.C. § 144. The plaintiff has presented no facts (nor made any specific allegations)
from which a reasonable person could infer or conclude that I am biased or prejudiced against
him. I hold no bias nor enmity against the plaintiff. Under these circumstances, I am required to
continue to serve pursuant to the Order of Reference entered by the district judge.
IT IS ORDERED that the Motion [Doc. #98] is DENIED.
Dated December 11, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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