United States District Court, D. Kansas
PATRICK C. LYNN, Plaintiff,
SAMMY CLINE, et al., Defendants.
MURGUIA, U.S. DISTRICT JUDGE
brings this pro se civil rights Complaint pursuant to 42
U.S.C. § 1983. Plaintiff is currently incarcerated at
Lansing Correctional Facility in Lansing, Kansas
(“LCF”). This matter comes before the Court on
Plaintiff's Motion for Reconsideration (Doc. 30); Motion
for Change of Judge (Doc. 31); Verified Motion to Hold
Defendants in Violation of 18 U.S.C. §§ 241, 242,
371, 1503-12 (Doc. 32); and Motion for Additional Time
Extension (Doc. 33).
Motion for Change of Judge (Doc. 31)
alleges in his motion that “for any Judge or gov't
LEO to refuse the legal duty to investigate & prosecute
the crimes against [him] & the administration of justice
constitutes a breach of sworn oaths & is
malfeasance.” (Doc. 31, at 1.) Plaintiff further
alleges that he believes he cannot receive a full and fair
hearing on any viable matter before the undersigned and
states that the undersigned “harbors a deep-seated bias
& prejudice against prisoners & is not only
deliberately indifferent to any criminal &
unconstitutional abuses upon prisoners generally and
[him]self specifically, but is also incapable of discerning
simple facts & evidence because he is blinded by his
prejudicial biases against prisoners.” Id.
Plaintiff then seeks a hearing “to develop the facts
& evidence entitling [him] to relief.” Id.
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 recuse is denied.
Motion for Reconsideration (Doc. 30)
asks the Court to reconsider its Order (Doc. 27) denying
Plaintiff's Motion for Orders (Doc. 25) and Motion for
Temporary Protective Orders (Doc. 26). Plaintiff's Motion
for Orders seeks an indefinite stay of this case pending the
return of his seized property by LCF staff. Plaintiff also
requests that this case be transferred to the Chief Judge.
Lastly, Plaintiff asks the Court to grant him permission to
file an interlocutory appeal in the event the Court denies
his motion. In his Motion for Temporary Protective Orders,
Plaintiff details the facts surrounding his transfer to LCF
and the mishandling of his property. These facts are set
forth in the Court's June 24, 2019 Order. (Doc. 24, at
2.) The Court denied both motions.
motion for reconsideration, Plaintiff alleges that the
Court's decision is based on prejudicial bias, and asks
the undersigned to recuse. Plaintiff also takes issue with
the Court's refusal to initiate criminal proceedings
against the staff at LCF. Local Rule 7.3 provides that
“[p]arties seeking reconsideration of non-dispositive
orders must file a motion within 14 days after the order is
filed” and the “motion to reconsider must be
based on: (1) an intervening change in controlling ...