Justice (ID 74505) v. Robinson et al

Filing 4

ORDER ENTERED: Plaintiff's motion to cease and desist and for recusal (Doc. #3 ) is denied. Signed by U.S. Senior District Judge Sam A. Crow on 11/17/21. Mailed to pro se party Jason Alan Justice by regular mail. (smnd)

Case 5:21-cv-03260-SAC Document 4 Filed 11/17/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JASON ALAN JUSTICE,
Plaintiff,
v.

CASE NO. 21-3260-SAC

JULIE A. ROBINSON, et al.,
Defendants.

O R D E R
This matter is before the court on plaintiff’s motion styled as
“cease and desist and demand for recusal”. Plaintiff objects to
decisions in his court filings that allegedly have mischaracterized
his claims. He also asks that the undersigned, as well as two other
judicial officers of this court, recuse themselves and have no
participation in this matter, except as witnesses and defendants.
Because plaintiff proceeds pro se in this matter, the court must
liberally construe his filings. See Trackwell v. U.S. Gov't, 472 F.3d
1242, 1243 (10th Cir. 2007) (“Because Mr. Trackwell appears pro se,
we review his pleadings and other papers liberally and hold them to
a

less

stringent

standard

than

those

drafted

by

attorneys.”)

(citations omitted). However, the court must evaluate plaintiff’s
submissions in light of precedent and governing legal principles, and
his designation of a filing is subject to review and, if necessary,
construction as another type of filing1. The court therefore will deny

In a memorandum and order entered on November 16, 2021, the court construed the
pleading plaintiff captioned as a Freestanding Emergency Constitutional Habeas
Corpus (Doc. 1) as presenting claims related to the validity of his confinement that
must be presented in habeas corpus and on appropriate court-approved forms. The court
also explained that other claims presented in the action that are related to his
conditions of confinement must be presented in a civil rights action. Plaintiff’s
present motion was filed on the same day and prior to his receipt of the order.
1

Case 5:21-cv-03260-SAC Document 4 Filed 11/17/21 Page 2 of 3

plaintiff’s request to cease and desist.
Plaintiff’s

motion

for

recusal

seeks

the

recusal

of

the

undersigned and two other judges who presided in earlier actions
brought by him. Two statutes govern 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)). The 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, a 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 judgments impossible.” Id. (quoting Liteky, 510 U.S. at

Case 5:21-cv-03260-SAC Document 4 Filed 11/17/21 Page 3 of 3

555).
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.
Plaintiff’s bare claims are insufficient to establish grounds
for recusal of the undersigned, and he cannot properly seek the recusal
of other judges in other cases in this action. The court must deny
the motion for recusal.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motion to
cease and desist and for recusal (Doc. 3) is denied.
IT IS SO ORDERED.
DATED:

This 17th day of November, 2021, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge