USA v. RaPower-3 et al

Filing 499

ORDER denying #495 Motion for Recusal. Signed by Judge David Nuffer on 11/05/2018. (elm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UNITED STATES OF AMERICA,

ORDER DENYING
MOTION FOR RECUSAL

Plaintiff,
Case No. 2:15-cv-00828-DN
v.
District Judge David Nuffer
RAPOWER-3, LLC; INTERNATIONAL
AUTOMATED SYSTEMS, INC.; LTB1,
LLC; R. GREGORY SHEPARD; and
NELSON JOHNSON,
Defendants.

Defendant Neldon Johnson has filed a motion (“Motion”) 1 to have me disqualified from
further participation in this case under 28 U.S.C. §§ 455 and 144. Because Johnson’s filings are
insufficient, neither of these statutes requires my recusal, and the Motion1 is DENIED.
DISCUSSION
Johnson argues that recusal is required because he recently filed two lawsuits naming me
as a defendant. 2 But “[a] judge is not disqualified merely because a litigant sues or threatens to
sue him.” 3 Thus, regardless of the number of lawsuits Johnson may choose to file against me, I
am not disqualified from presiding over this case.

1

Neldon Johnson’s Pro Se Motion to Recuse Honorable Judge David Nuffer (“Motion”), docket no. 495, filed
November 2, 2018.

2

Id. at 2, 5-7.

3

United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977).

Johnson also argues—in conclusory fashion 4—that he believes that decisions adverse to
him in this case were “intended to punish” and “to destroy [him] financially.” 5 That is not
sufficient. 6 “In every lawsuit, judges make rulings adverse to one or the other party. That these
rulings may be unwelcome is simply too commonplace a circumstance to support an allegation
of bias.” 7
Johnson further argues—again in conclusory fashion4—that he believes that I made
statements evidencing bias against him after reviewing testimony and other evidence presented
during the course of proceedings in this case. 8 Judges are required to hear evidence and assess.
This may lead to conclusions a litigant does not like. But even though a judge “may, upon
completion of the evidence, be exceedingly ill disposed towards the defendant,” “the judge is not
thereby recusable for bias or prejudice, since his knowledge and the opinion it produced were
properly and necessarily acquired in the course of the proceedings, and are indeed sometimes . . .
necessary to completion of the judge’s task.” 9
Because Johnson has failed to present compelling evidence of bias or prejudice, his
motion for my recusal or disqualification will be denied.

4

See Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996) (recusal under 28 U.S.C. § 455(b)(1) “is required only if
actual bias or prejudice is proved by compelling evidence”); United States v. Balistrieri, 779 F.2d 1191, 1199 (7th
Cir. 1985) (“Simple conclusions, opinion or rumors are insufficient” to require disqualification under 28 U.S.C.
§ 144.).
5

Motion, supra note 1, at 3.

6

Liteky v. United States, 510 U.S. 540, 555 (1994).

7

Kromrey v. U.S. Dep’t of Justice, No. 09-cv-376, 2010 WL 2838375, *2 (W.D. Wis. July 19, 2010).

8

Motion, supra note 1, at 6-7.

9

Liteky, 510 U.S. at 550-51; see id. at 555 (“[J]udicial remarks during the course of a trial that are critical or
disapproving of, or event hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge.”).

2

ORDER
THEREFORE, IT IS HEREBY ORDERED that the Motion 10 is DENIED.
Signed November 5, 2018.
BY THE COURT:

David Nuffer
United States District Judge

10

Docket no. 495, filed November 2, 2018.

3