Cox v. (LNU) et al

Filing 252

ORDER denying recusal as requested in ECF 251 . See Order for additional information. Signed by Magistrate Judge Gerald L. Rushfelt on December 18, 2014. Mailed to pro se party Nicholas A. Cox by regular mail. (gc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NICHOLAS A. COX,

v.
ANN (LNU), et al.,

)
)
Plaintiff,
)
)
)
)
)
)
Defendants. )
)

CIVIL ACTION
No: 12-2678-DDC-GLR

ORDER
This case is before the Court on pro se Plaintiff Nicholas A. Cox’s request for recusal of
the undersigned magistrate judge. On November 19, 2014, the undersigned entered a
Memorandum and Order (ECF 250) denying Plaintiff’s Motion for Appointment of Counsel or in
the alternative Motion for Expert Witness Appointments and order allowing Defendant’s Legal
Books/Materials (ECF 235) and denying Plaintiff’s Motion For Continuance (ECF 241). Upon
its own motion, the Court granted Plaintiff 21 days from the date of the order to respond to two
pending motions for summary judgment. The Court also directed the Clerk of the Court to
transmit to Plaintiff a copy of the “Rules of Practice and Procedure for District and Bankruptcy
Court,” effective March 17, 2014, for the United States District Court, District of Kansas.
On November 26, 2014, Plaintiff filed an Objection to Magistrate’s Memorandum and
Order (ECF 251), which is currently pending before the District Judge. In his Objection, Plaintiff
refers to the undersigned’s November 19, 2014 Memorandum and Order. Plaintiff states that:
I feel this ruling was disrespectful. It called me a liar in fancy court
jargon. I respectfully request that the Court recuse itself because I
don’t feel that I will be able to give the Court its due respect in the
future. (ECF 251 at 3).

The Court will treat this portion of the Objection as a request for recusal.
There are two statutes governing judicial recusal, 28 U.S.C. §§ 144 and 455.1 For recusal
under § 144, the moving party must submit an affidavit showing bias and prejudice.2 The bias
and prejudice must be personal, extrajudicial, and identified by “facts of time, place, persons,
occasions, and circumstances.”3 These facts will be accepted as true, but they must be more than
conclusions, rumors, beliefs, and opinions.4 Here, Plaintiff has not filed an affidavit. Without an
affidavit showing bias or prejudice and proper identification of events indicating a personal and
extrajudicial bias, Plaintiff does not support a request for recusal under 28 U.S.C. § 144.
Under 28 U.S.C. § 455(a) and (b)(1) a judge “shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned” or if “he has a personal bias or
prejudice concerning a party.”5 Section (b)(1) is subjective and contains the “extrajudicial
source” limitation.6 Recusal may be appropriate “when a judge’s decisions, opinions, or remarks
stem from an extrajudicial source—a source outside the judicial proceedings.”7 Recusal is also
necessary when a judge’s actions or comments “reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.”8
1

Burleson v. Sprint PCS Group, 123 F. App’x 957, 959 (10th Cir. 2005).

2

Id. (citing Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988)).

3

Id. at 960 (quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987)).

4

Id.

5

28 U.S.C. § 455(a) and (b)(1).

6

See Liteky v. United States, 510 U.S. 540 (1994).

7

United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (citing Liteky, 510 U.S. at 554–55).

8

Id. (quoting Liteky, 510 U.S. at 555).

2

Section 455(a) has a broader reach than subsection (b) and the standard is not subjective,
but rather objective.9 The factual allegations need not be taken as true, and the test is “whether a
reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s
impartiality.”10 A judge has a “‘continuing duty to ask himself what a reasonable person,
knowing all of the relevant facts, would think about his impartiality.’”11 “The goal of
section 455(a) is to avoid even the appearance of partiality.”12
The initial inquiry—whether a reasonable factual basis exists for questioning the judge’s
impartiality—is limited to outward manifestations and the reasonable inferences to be drawn
from those manifestations.13 “[T]he judge’s actual state of mind, purity of heart, incorruptibility,
or lack of partiality are not the issue.”14 “The trial judge must recuse himself when there is the
appearance of bias, regardless of whether there is actual bias.”15
The Tenth Circuit has cautioned that “section 455(a) must not be so broadly construed
that it becomes, in effect, presumptive, so that recusal is mandated upon the merest

9

See Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995) (citing Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 858 n. 7 (1988) and Liteky, 510 U.S. at 548).
10

Id. at 350–51(quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)); Burleson, 123 F. App’x

at 960.
11

United States v. Greenspan, 26 F.3d 1001, 1005 (10th Cir. 1994) (quoting United States v. Hines, 696
F.2d 722, 728 (10th Cir. 1982)).
12

Liljeberg, 486 U.S. at 860.

13

Nichols, 71 F.3d at 351 (citing Cooley, 1 F.3d at 993).

14

Id. (quoting Cooley, 1 F.3d at 993).

15

Bryce v. Episcopal Church of Colo., 289 F.3d 648, 659 (10th Cir. 2002) (citing Nichols, 71 F.3d at 350).

3

unsubstantiated suggestion of personal bias or prejudice.”16 A judge has “as much obligation . . .
not to recuse when there is no occasion for him to do so as there is for him to do so when there
is.”17 Judges have a duty to sit when there is no legitimate reason to recuse.18 Courts must
exercise caution in considering motions for recusal in order to discourage their use for judge
shopping or delay.19
The Supreme Court has explained that “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.”20 When no extrajudicial source is relied upon as a
ground for recusal, “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.”21 The Court finds that no reasonable person would
believe that the undersigned’s November 19, 2014 Memorandum and Order (ECF 250)
implicates the level of “deep-seated favoritism or antagonism” that would make recusal proper.
Knowing all of the relevant facts, no reasonable person could harbor doubts about the
undersigned’s impartiality. Because the undersigned has a duty to sit and hear this case where

16

Cooley, 1 F.3d at 993 (quoting Franks v. Nimmo, 796 F.2d 1230, 1234 (10th Cir. 1986)).

17

David v. City & Cnty. of Denver, 101 F.3d 1344, 1351 (10th Cir. 1996) (quotation omitted); Greenspan,
26 F.3d at 1005 (citation omitted).
18

Bryce, 289 F.3d at 659; Nichols, 71 F.3d at 351.

19

Nichols, 71 F.3d at 351 (noting that § 455(a) is not “intended to bestow veto power over judges or to be
used as a judge shopping device”); Cooley, 1 F.3d at 993 (noting that Congress was concerned that § 455(a) might
be abused as a judge-shopping device).
20

Liteky, 510 U.S. at 555.

21

Id.

4

there is no legitimate reason for recusal, Plaintiff’s request for recusal as set forth in the
Objection to Magistrate’s Memorandum and Order (ECF 251) is denied. The remainder of the
Objection remains pending before the District Judge.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 18th day of December, 2014.

S/Gerald L. Rushfelt
Gerald L. Rushfelt
United States Magistrate Judge

5