United States District Court, D. Kansas
ALBERT L. BRINKMAN, Plaintiff,
ZACHARY ZIMMERMAN, et al., Defendants.
CROW U.S. SENIOR DISTRICT JUDGE
Albert L. Brinkman is a state prisoner housed at El Dorado
Correctional Facility-Central in El Dorado, Kansas
(“EDCF”). Plaintiff brings this pro se civil
rights Complaint pursuant to 42 U.S.C. § 1983. On August
24, 2018, the Court entered an Order (Doc. 3) denying
Plaintiff's motion to proceed in forma pauperis and
ordering him to pay the filing fee for this case by September
24, 2018. This matter is before the Court on Plaintiff's
Motion to Correct Error (Doc. 6); Motions to Supplement
Motion for Leave to Proceed In Forma Pauperis (Docs. 7, 8,
and 11), and Motion Requesting Withdrawal (Doc. 10).
motion to correct error seeks to correct the caption of his
motion at Doc. 4, because he used a form from the District of
Arizona. Plaintiff seeks to strike “Arizona” from
the caption and to replace it with “Kansas.”
Because the Court has already ruled on Plaintiff's motion
at Doc. 4, the request to correct the caption is moot.
also seeks to supplement his motion for leave to proceed in
forma pauperis. The Court has denied Plaintiff's motion
to proceed in forma pauperis, nevertheless, the Court will
allow Plaintiff to supplement the motion in light of his
motion to reconsider at Doc. 9.
has also filed a motion requesting that the undersigned be
“withdrawn from the case, ” and to “change
judges on this case.” (Doc. 10.) Plaintiff's motion
is not a proper motion to recuse and Plaintiff sets forth no
facts or arguments as to why recusal would be warranted.
There are two statutes governing judicial recusal, 28 U.S.C.
§§ 144 and 455. Burleson v. Spring PCS
Group, 123 Fed.Appx. 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.
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).
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- 51
(quoting United States v. Cooley, 1 F.3d 985, 993
(10th Cir. 1993)); Burleson, 123 Fed.Appx. 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.
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).
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 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).
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.
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 withdraw is denied.
IS THEREFORE ORDERED BY THE COURT that
Plaintiff's Motion to Correct Error (Doc. 6) is moot and
IS FURTHER ORDERED that Plaintiff's Motions to
Supplement Motion for Leave to Proceed In Forma Pauperis
(Docs. 7, 8, and 11) are granted.
IS FURTHER ORDERED that Plaintiff's Motion