McNamara v. Brauchler et al

Filing 18

ORDER denying 14 Plaintiff's Fed.R.Civ.P. 60(b) Motion for Relief fromMagistrate's Order Dated 5/8/13. by Magistrate Judge Boyd N. Boland on 6/5/13.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-01117-MSK-BNB
JOHN McNAMARA,
Plaintiff,
v.
GEORGE BRAUCHLER,
CHRISTOPHER OPFER,
FRANCINE GONZALEZ,
MITCHELL MORRISEY,
C. STEPHEN HOOPER,
JOHN GLEASON,
WILLIAM ROBERT LUCERO,
APRIL McMURREY,
MONICA GOMEZ, and
LAWRENCE BOWLING,
Defendants,
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on Plaintiff’s Fed.R.Civ.P. 60(b) Motion for Relief from
Magistrate’s Order Dated 5/8/13 [Doc. #14, filed 06/03/2013] (the “Motion”). The Motion is
DENIED.
The plaintiff filed his Complaint on April 25, 2013 [Doc. #1]. Because the Complaint
suffers from many deficiencies, I struck it and ordered the plaintiff to tender a proposed amended
complaint that complies with Fed. R. Civ. P. 8; D.C.COLO.LCivR 8.1A; and my order [Doc.
#7]. Specifically, I stated:
The Complaint is a 169 page diatribe against the legal system. It
includes inappropriate legal and factual arguments, conclusory
allegations of wrongdoing, irrelevant and immaterial statements,

and ad hominem attacks against the defendants and others. The
Complaint does not contain a short and plain statement of the
grounds for the court's jurisdiction or a demand for the relief
sought. Nor does it clearly delineate any causes of action.
The plaintiff concedes that “[n]o current wrongdoing is alleged on
the part of” defendants George Brauchler and Mitchell Morrissey.
Instead, he has named them as defendants “to request that [they]
file the criminal charges outlined in this lawsuit.” The plaintiff
must state a proper cause of action against each named defendant;
he may not name a defendant merely to advance a personal agenda.
Despite 749 paragraphs of allegations, the plaintiff does not clearly
state his claims; the legal bases for his claims; the actions or
inactions of each defendant; and how those actions or inactions
violate the law. The Complaint utterly fails to provide notice of
the plaintiff’s causes of action as required by Rule 8. Accordingly,
the Complaint is stricken, and the plaintiff shall tender a proposed
amended complaint which complies with the Federal Rules of
Civil Procedure, the local rules of this court, and this order.
The proposed amended complaint must be submitted on the court’s
form and shall be titled “Amended Complaint.” The defendants
shall be clearly identified. The background statement shall briefly
summarize the plaintiff’s case and shall not exceed one doublespaced typewritten page. Each claim shall be numbered and shall
be stated separately. Each claim shall state the legal basis for the
claim; shall identify which defendant(s) the claim is brought
against; and shall allege facts sufficient to state a claim for relief as
to each of those defendants. Each claim shall not exceed two
typewritten pages, double-spaced. The proposed amended
complaint shall not contain argument, conclusory allegations,
irrelevant or immaterial statements, or ad hominem attacks against
the defendants or others.
In his Motion, the plaintiff implies that I did not have authority to strike his Complaint;
accuses me of advocating for the defendants (and defense lawyers in general) and of imposing
the above restrictions to make it easier for the defendants to seek dismissal of his claims; and
implies that this court owes the state court “favors” and, therefore, would be inclined to rule in
favor of the state defendants.
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The plaintiff requests that I recuse pursuant to 28 U.S.C. §§ 144 and 455(a)-(b)(1) “to
avoid any inevitable thoughts regarding an appearance of impropriety on any close calls in this
case, and that the United States District Court request that an out-of-state judge who does not
have familiarity with local Colorado personalities from judicial events or prior work experience,
be assigned to this case.”1
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 statute does not command automatic disqualification. Hall v. Burkett, 391 F. Supp.
237, 240 (D. Okla. 1975). Rather, it is the duty of the judge against whom the affidavit is filed to
pass on its timeliness and legal sufficiency. United States v. Azhocar, 581 F.2d 735, 738 (9th
Cir. 1978; Hall, 391 F. Supp. at 240. The plaintiff has not submitted a supporting affidavit with
his Motion. Therefore, he does not provide a basis upon which I should recuse myself 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.

1

The Motion appears to be missing a second page containing paragraphs four, five, six,
and half of paragraph seven.
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(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,
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.

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(Internal citations omitted.)
Also applicable here 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 plaintiff has failed to set forth any reasons to justify my recusal under 28 U.S.C. §
455 or 28 U.S.C. § 144. A routine order requiring the plaintiff to file a complaint in compliance
with the Federal Rules of Civil Procedure and the local rules of this court is not sufficient
grounds to require disqualification based on claims of bias or partiality. Liteky, 510 U.S. at 555.
Moreover, the plaintiff’s fanciful and conclusory accusations of conspiratorial animus against
him are frivolous. Stated simply, 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.
The plaintiff’s Motion is titled as a motion for relief under Rule 60(b). However, the
body of the Motion does not contain any request for relief under Rule 60, nor does it contain any
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argument that would justify relief under Rule 60.2
IT IS ORDERED that Plaintiff’s Fed.R.Civ.P. 60(b) Motion for Relief from Magistrate’s
Order Dated 5/8/13 [Doc. #14] is DENIED.
Dated June 5, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

2

Although the plaintiff is proceeding pro se, he is a lawyer licensed to practice in the
State of Colorado. Id. at ¶ 9. Consequently, he is not entitled to a liberal construction of his
pleadings. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001).
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