Waterman v. Groves et al

Filing 34

MEMORANDUM AND ORDER ENTERED: Plaintiff's Motion to Recuse (Doc. 33 ) is denied. Signed by U.S. Senior District Judge Sam A. Crow on 11/20/2020. Mailed to pro se party Brian Michael Waterman by regular mail. (jal)

Case 5:20-cv-03154-SAC Document 34 Filed 11/20/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN MICHAEL WATERMAN,
Plaintiff,
v.

CASE NO. 20-3154-SAC

DAVID GROVES, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff filed this pro se civil rights case under 42 U.S.C. § 1983. The Court granted
Plaintiff leave to proceed in forma pauperis. Plaintiff is detained at the Cherokee County Jail in
Columbus, Kansas (“CCJ”). This matter is before the Court on Plaintiff’s Motion to Recuse
(Doc. 33).
Plaintiff alleges that the undersigned has “allowed and condoned” harassment by
Defendants and has placed a heavier burden on a pro se plaintiff. (Doc. 33, at 2.) Plaintiff’s
arguments are based on adverse rulings. Plaintiff claims that the undersigned is indirectly
retaliating against him for his filing of complaints against other judges. Id. Plaintiff also takes
issue with the Court requiring him to follow the Federal Rules of Civil Procedure and refusing to
provide him with legal advice. Id. at 3.
Plaintiff takes issue with the Court requiring him to prosecute his case despite his
arguments that staff at the facility refuse to allow him to keep his legal materials in his cell and
only allow him to view them. Plaintiff alleges that this obstructs his access to the courts, yet he
has been able to file multiple pleadings, including the instant motion, complete with legal
arguments and cites to case law.

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There are two statutes governing judicial recusal, 28 U.S.C. §§ 144 and 455. Burleson v.
Spring PCS Group, 123 F. App’x 957, 959 (10th Cir. 2005). For recusal under § 144, the
moving party must submit an affidavit showing bias and prejudice. Id. (citing Glass v. Pfeffer,
849 F.2d 1261, 1267 (10th Cir. 1988)). The bias and prejudice must be personal, extrajudicial,
and identified by “facts of time, place, persons, occasions, and circumstances.” Id. at 960
(quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987)). These facts will be accepted as
true, but they must be more than conclusions, rumors, beliefs, and opinions. Id. 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.” 28 U.S.C. § 455(a) and (b)(1). Section (b)(1) is subjective and
contains the “extrajudicial source” limitation. See Liteky v. United States, 510 U.S. 540 (1994).
Recusal may be appropriate “when a judge’s decisions, opinions, or remarks stem from an
extrajudicial source—a source outside the judicial proceedings.” United States v. Nickl, 427
F.3d 1286, 1298 (10th Cir. 2005) (citing Liteky, 510 U.S. at 554–55). 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.” Id. (quoting Liteky, 510 U.S. at 555).
Section 455(a) has a broader reach than subsection (b) and the standard is not subjective,
but rather objective. 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). 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.” Id. at 350–

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51 (quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)); Burleson, 123 F. App’x
at 960. A judge has a “‘continuing duty to ask himself what a reasonable person, knowing all of
the relevant facts, would think about his impartiality.’” 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)). “The goal of section 455(a) is to avoid even the appearance of partiality.” Liljeberg, 486
U.S. at 860.
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. Nichols, 71 F.3d at 351 (citing Cooley, 1 F.3d at 993). “[T]he
judge’s actual state of mind, purity or heart, incorruptibility, or lack of partiality are not the
issue.” Id. (quoting Cooley, 1 F.3d at 993). “The trial judge must recuse himself when there is
the appearance of bias, regardless of whether there is actual bias.” Bryce v. Episcopal Church of
Colo., 289 F.3d 648, 659 (10th Cir. 2002) (citing Nichols, 71 F.3d at 350).
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
unsubstantiated suggestion of personal bias or prejudice.” Cooley, 1 F.3d at 993 (quoting Franks
v. Nimmo, 796 F.2d 1230, 1234 (10th Cir. 1986)). 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.”
David v. City & Cnty. of Denver, 101 F.3d 1344, 1351 (10th Cir. 1996) (quotation omitted);
Greenspan, 26 F.3d at 1005 (citation omitted). Judges have a duty to sit when there is no
legitimate reason to recuse. Bryce, 289 F.3d at 659; Nichols, 71 F.3d at 351. Courts must
exercise caution in considering motions for recusal in order to discourage their use for judge
shopping or delay. Nichols, 71 F.3d at 351 (noting that § 455(a) is not “intended to bestow veto

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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).
The Supreme Court has explained that “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555. 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.” Id.
The Court finds that no reasonable person would believe that the undersigned’s previous
rulings implicate 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
there is no legitimate reason for recusal, Plaintiff’s request for the undersigned to recuse is
denied.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to Recuse (Doc. 33) is
denied.
IT IS SO ORDERED.
Dated November 20, 2020, in Topeka, Kansas.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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