Stine v. Berkebile

Filing 11

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/8/14. 8 Motion to Recuse is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03107-BNB
MIKEAL GLENN STINE,
Applicant,
v.
D. BERKEBILE, Warden ADX,
Respondent.

ORDER OF DISMISSAL

Applicant, Mikeal Glenn Stine, is in the custody of the United States Bureau of
Prisons (BOP) and currently is incarcerated at ADX in Florence, Colorado. Applicant,
acting pro se, initiated this action by filing an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241, ECF No. 1. On November 18, 2013, Magistrate Judge
Boyd N. Boland entered an order and directed Applicant to cure certain deficiencies.
Specifically, Magistrate Judge Boland directed Applicant either to pay the $5.00 filing
fee or in the alternative to submit a request to proceed pursuant to 28 U.S.C. § 1915 on
a proper form along with a certified account statement showing the current balance in
Applicant’s trust fund account.
Magistrate Judge Boland warned Applicant that the action would be dismissed
without further notice if he failed to cure the deficiencies within thirty days. The account
statement Applicant submitted is not current. It is dated almost two weeks prior to when
Applicant signed the Application. Applicant has failed to comply with the November 18,
2013 Order within the time allowed. The action, therefore, is subject to dismissal for
failure to cure.

Nonetheless, I will address the merits of Applicant’s claims; his Motion to
Recuse, ECF No. 8; and his Motion for Temporary Restraining Order and Preliminary
Injunction, ECF No. 5. I will refrain, however, from imposing the filing restrictions
imposed against Applicant in Stine v. Berkebile, No. 13-cv-02997-LTB, ECF No. 4 (D.
Colo. Nov. 5, 2013), because the restrictions were imposed on December 3, 2013, after
Applicant filed this action.
First, I will address the Motion for Recusal. Pursuant to 28 U.S.C. § 455(a)
states that “[a]ny justice, judge, or magistrate of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.”
The general purpose of § 455(a) is “to promote public confidence in the integrity of the
judicial process” and to avoid even the “appearance of impropriety.” Liljeberg v. Health
Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). “W]hat matters is not the reality of
bias or prejudice but its appearance.” Liteky v. United States , 510 U.S. 540, 548
(1994). Under § 455(a), “a judge has a continuing duty to recuse before, during, or, in
some circumstances, after a proceeding, if the judge concludes that sufficient factual
grounds exist to cause an objective observer reasonably to question the judge’s
impartiality.” United States v. Cooley, 1 F.3d 985, 992 (10th Cir. 1993). “The decision
to recuse is committed to the sound discretion of the district court.” United States v.
Burger, 964 F.2d 1065, 1070 (10th Cir. 1992) (citation omitted).
“The provisions of 28 U.S.C. § 455(a) do not command automatic disqualification
of a judge, to the contrary, it is the duty of the judge who is allegedly biased to pass on
the sufficiency of the allegations.” See David v. City & County of Denver, 837
F. Supp. 1094, 1095 (D. Colo. 1993). A judge has an obligation not to disqualify himself
unnecessarily. See Cooley, 1 F.3d at 994; David, 837 F. Supp. at 1095. A judge is
2

obligated not to recuse when there is no occasion for him to do, just as he is obligated
to recuse when there is occasion to do so. See Nichols v. Alley, 71 F.3d 347, 351 (10th
Cir. 1995); Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). If, however,
disqualification under § 455(a) is a close question, the balance tips in favor of recusal.
See Nichols, 71 F.3d at 352.
Under § 455(a), the judge’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 of the relevant facts, would harbor doubts about the judge’s impartiality.
Id. at 351; Cooley, 1 F.3d at 993. The standard is purely objective and the inquiry is
limited to outward manifestations and reasonable inferences drawn therefrom. See
Nichols, 71 F.3d at 351; Cooley, 1 F.3d at 993.
In applying the objective test, “the initial inquiry is whether a reasonable factual
basis exists for calling the judge’s impartiality into question.” Cooley, 1 F.3d at 993.
Application of § 455(a) necessarily includes emphasis on whether a judge’s impartiality
might “reasonably” be questioned. Id. Section 455(a) is not to be construed so broadly
that recusal would be mandated “upon the merest unsubstantiated suggestion of
personal bias or prejudice.” Franks v. Nimmo, 796 F.2d 1230, 1235 (10th Cir. 1986)
(citing United States v. Hines, 696 F.2d 722, 729 (10th Cir. 1982)). Section 455(a)
should not be read to warrant the transformation of a litigant’s fear that a judge may
decide a question against him into a “reasonable fear” that the judge will not be
impartial. See Cooley, 1 F.3d at 993. The statute is not intended to give litigants a veto
power over sitting judges, or a vehicle for obtaining a judge of their choice. See
Nichols, 71 F.3d at 351; Cooley, 1 F.3d at 993.
Applicant requests that I recuse myself because on several occasions I have
3

denied his request to proceed in a prisoner complaint for failure to comply with the filing
restrictions stated in Stine v. Lappin, et al., No. 07-cv-01839-WYD-KLM, ECF No. 344
(D. Colo. Sept. 1, 2009), and I now, in Stine v. Berkebile, No. 13-cv-02997-LTB, ECF
No. 13 (D. Colo. Nov. 5, 2013), entered an order sanctioning him from asserting
conditions of confinement claims in a 28 U.S.C. § 2241 action in an attempt to
circumvent his filing restrictions. Applicant’s motion for my recusal is insufficient
because it fails to show personal bias or prejudice. The recusal claim is based only on
Applicant’s disagreement with my decisions to deny his requests to proceed in civil
actions in this Court, including both prisoner complaints and § 2241 actions. Applicant’s
assertions are unsubstantiated suggestions of personal bias or prejudice and lack any
basis for a mandate of recusal. Therefore, Applicant’s request for recusal will be
denied.
Next, I will address the claims stated in this action and the related requests for
injunctive relief in ECF No. 5. Applicant claims this action is properly brought pursuant
to 28 U.S.C. § 2241 because the sentencing court in the United States District Court for
the Southern District of Texas, in Case Nos. 03-cr-00044-2 and 04-cr-00020, stated in
the judgment and sentencing orders that Applicant shall not be housed near or by
members and associates of the Aryan Brotherhood, Dirty White Boys, Nazi Low Riders,
Mexican Mafia, and Skin Heads.
The Tenth Circuit has confirmed that a conditions of confinement claim filed by a
prisoner in this Circuit must be filed through a civil rights action. See Palma-Salazar v.
Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (citing McIntosh v. U.S. Parole Com’n, 115
F.3d 809 (10th Cir. 1997); Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011)).

4

Applicant does not contest the legality of his conviction, the fact or length of his
sentence, and the relief he requests, to be placed in a nonpunitive unit or a state facility,
does not alter his sentence or undo his conviction. See Palma-Salazer, 677 F.3d at
1035. I also have reviewed the judgment and disposition in each of the two criminal
cases Applicant refers to in the Application. See United States v. Stine, No. 03-cr00044-2 (S.D. Tex. Apr. 30, 2004); see also United States v. Stine, No. 04-cr-00020-1
(S.D. Tex. Apr. 30, 2004). There is no statement by the sentencing court in the
disposition of either case that Applicant shall not be housed near or by members and
associates of the Aryan Brotherhood, Dirty White Boys, Nazi Low Riders, Mexican
Mafia, and Skin Heads. Id.
In Applicant’s most recent case, Stine v. Berkebile, et al., No. 13-cv-03473-, he
has attached two documents that address safety issues regarding his BOP placement.
The first document is a transcript of his sentencing and supervised release hearing in
Case Nos. 03-cr-000-44 and 04-cr-00020. See Stine v. Berkebile, et al., No. 13-cv03474-LTB, ECF No. 1-1 at 17-20 (D. Colo. Jan. 1, 2014). The discussion between the
court and counsel in this transcript indicates that the sentencing court ordered the
presentence report to include information that Applicant was a member of the Aryan
Brotherhood, that he currently denies membership, and that he was injured as a result
of attempting to withdraw his membership. Id. at 20. The sentencing court stated the
information was relevant for the BOP to protect Applicant. Id. Nothing in this transcript
indicates that the sentence includes a directive about Applicant’s placement.
The second document is a letter from a district judge in the United States District
Court for the District of Arizona to a BOP staff member at the prison facility where
Applicant is housed. Id. at 21-22. The district judge writing the letter was not the
5

sentencing judge in Applicant’s criminal cases in the Southern District of Texas.
Furthermore, the letter includes a request that the BOP accommodate Applicant’s safety
needs, but acknowledges that the BOP’s designation for Applicant’s placement is
entirely within the BOP’s discretion. Id.
Finally, Applicant has raised the gang issue and his placement in several
previous prisoner complaints, filed pursuant to Bivens, but he never asserted that his
sentence included a restriction on his placement. See Stine v. Fed. Bureau of Prisons,
et al., No.12-cv-01504-WJM, ECF No. 1-1 at 53 (D. Colo. Aug. 10, 2012), aff’d, No. 121319 (10th Cir. Jan. 8, 2013); Stine v. Fed. Bureau of Prisons, et al., No. 10-cv-01652ZLW (D. Colo. Aug. 17, 2010) (refers to same sentencing court transcript as he does in
Case No. 13-cv-03474-BNB), appeal dismissed, No. 10-1392 (10th Cir. Oct. 1, 2010);
Stine v. Davis, et al., No. 10-cv-00751-ZLW, ECF No. 8 at 3-4 (D. Colo. Apr. 20, 2010),
appeal dismissed, No. 10-1190 (10th Cir. June 4, 2010); Stine v. Lappin, et al., No. 07cv-01839-WYD-KLM (D. Colo. Sept. 1, 2009), appeal dismissed, No. 12-1172 (10th Cir.
May 31, 2012).
Applicant’s challenge to his placement is a thinly veiled conditions of confinement
claim that must be raised in a civil rights action pursuant to 28 U.S.C. § 1331. Applicant
may not circumvent his filing restrictions by attempting to raise conditions of
confinement claims in a § 2241 action. The action, therefore, will be dismissed.
I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order is not
taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of
appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a
notice of appeal he must also pay the full $505.00 appellate filing fee or file a motion to
proceed in forma pauperis in the Tenth Circuit within thirty days in accordance with Fed.
6

R. App. P. 24. Accordingly, it is
ORDERED that the Motion to Recuse, ECF No. 8, is denied. It is
FURTHER ORDERED that the Application is denied and the action is dismissed
with prejudice. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this

8th day of

January

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

7