Gess v. 10th Circuit Dist. Ct. of Colo.

Filing 15

ORDER by Chief Judge Philip A. Brimmer on 7/23/2020, re: #12 Motion for Reassignment of Judge and #13 Objection to Dismissal by Brimmer construed as motions for reconsideration, are DENIED.(sphil, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 20-cv-01787-PAB
JOSHUA GESS,
Applicant,
v.
B. TRUE, Warden, FCI – Englewood,
Respondent.

ORDER DENYING RECUSAL AND RECONSIDERATION

Applicant Joshua Gess is in the custody of the Federal Correctional Institution –
Englewood in Littleton, Colorado. On June 10, 2020, he commenced pro se this action
under 28 U.S.C. § 2241. Mr. Gess alleged he is in imminent danger due to his health
conditions and the facility’s failure to safely manage the COVID-19 pandemic. He
requested release.
On July 8, 2020, I entered an Order of Dismissal [Docket No. 10]. Final
Judgment entered the following day [Docket No. 11]. In the Order of Dismissal, I relied
on a previous order that held that Ҥ 2241 is not the proper vehicle for a conditions of
confinement claim,” and claims regarding a detention facility’s handling of the COVID-19
pandemic attack the conditions of confinement, not the fact or duration of confinement.
Codner v. Choate, No. 20-cv-01050-PAB, 2020 WL 2769938, at *6 (D. Colo. May 27,
2020). Thus, I determined this § 2241 action is not the appropriate vehicle for
Applicant’s claims arising from the conditions of his confinement at the FCI –

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Englewood. As a result, I dismissed this action without prejudice. I also noted that
Applicant presents the same allegations and request for relief in his criminal case, No.
19-cr-00507-PAB-1, and in a separate Bivens action, No. 20-cv-01790-PAB.
Applicant filed a “Motion for Reassignment of Judge” [Docket No. 12] on July 15,
2020, and an “Objection to Dismissal by Brimmer” [Docket No. 13] on July 14, 2020. I
must construe Applicant’s filings liberally because he is not represented by an attorney.
See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). For the reasons below, I construe the Objection as a motion for
reconsideration and deny both motions.
I.

Recusal
In the “Motion for Reassignment of Judge” [Docket No. 12], Applicant alleges I

am “not a neutral third party” because I am a party to his allegedly unlawful detention.
These allegations are insufficient to warrant recusal and reassignment.
Consideration for disqualifying a judge is governed by 28 U.S.C. ' 455(a).
Section 455(a) states that 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.@ The standard is “purely objective” and the inquiry is “limited to outward
manifestations and reasonable inferences drawn therefrom.” United States v. Cooley, 1
F.3d 985, 993 (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). A judge has an obligation not to disqualify himself
unnecessarily. See Cooley, 1 F.3d at 994.

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Section 455(a) must not 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)). “[J]udicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555
(1994); see also Lammle v. Ball Aerospace & Techs. Corp., 589 F. App'x 846, 849 (10th
Cir. 2014) (“Unfavorable judicial rulings . . . are insufficient grounds for recusal.”).
Title 28 U.S.C. § 144 provides a procedure whereby a party to a proceeding may
request that the presiding judge recuse himself based upon personal bias or prejudice
either against the moving party or in favor of any adverse party. Section 144 requires
the moving party to submit a timely and sufficient affidavit of personal bias and
prejudice. See Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). “The affidavit
must state with required particularity the identifying facts of time, place, persons,
occasion, and circumstances.” Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987).
Applicant has not submitted a timely and sufficient affidavit of personal bias and
prejudice. He fails to make a reasoned argument that would demonstrate an
appearance of partiality or bias. As noted above, “judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555.
Applicant’s vague and conclusory allegations fail to establish that I have any personal
bias or prejudice against him. Therefore, I will not recuse myself from this case.

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II.

Reconsideration
In the “Objection to Dismissal by Brimmer” [Docket No. 13], Applicant objects to

the dismissal of this § 2241 action. He asserts the Application included more than his
COVID-19 claim, such as unlawful detention and fraud on the court.
A litigant subject to an adverse judgment, and who seeks reconsideration by the
district court of that adverse judgment, may “file either a motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment
pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). A motion to alter or amend the judgment must be filed within twentyeight days after the judgment is entered. See Fed. R. Civ. P. 59(e). I construe the
“Objection to Dismissal by Brimmer” [Docket No. 13] as a motion to reconsider pursuant
to Rule 59(e) because it was filed within twenty-eight days after entry of the Final
Judgment.
A Rule 59(e) motion may be granted “to correct manifest errors of law or to
present newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th
Cir. 1997) (internal quotation marks omitted). Relief under Rule 59(e) also is
appropriate when “the court has misapprehended the facts, a party’s position, or the
controlling law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000).
Applicant presents no argument or authority demonstrating I misapprehended the
facts, Applicant’s position, or the controlling law, and he does not present any newly
discovered evidence. As I explained to Applicant, § 2241 does not provide an avenue
for relief arising from the conditions of confinement, and allegations regarding COVID-

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19 constitute a challenge to the conditions of confinement. See Codner, 2020 WL
2769938. Dismissal on this basis remains appropriate.
I remind Applicant that this action was dismissed without prejudice. If Applicant
intends to pursue relief under § 2241, he may file a separate action that contains only
requests for relief that are cognizable under § 2241. If Applicant chooses to do so, he
must use the current Court-approved forms which are available on the Court’s website,
www.cod.uscourts.gov. Applicant’s other matters, Case Nos. 19-cr-00507-PAB-1 and
20-cv-01790-PAB, remain pending.
Accordingly, it is
ORDERED that the “Motion for Reassignment of Judge” [Docket NO. 12] and
“Objection to Dismissal by Brimmer” [Docket No. 13], construed as motions for
reconsideration, are DENIED.
DATED July 23, 2020.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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