United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW U.S. SENIOR DISTRICT JUDGE
brings this pro se civil rights action pursuant to
42 U.S.C. § 1983. Plaintiff is incarcerated at the
Lansing Correctional Facility in Lansing, Kansas. Plaintiff
seeks to bring criminal charges against the Defendants and
asks the Court to appoint a Special Prosecutor to prosecute
them. On July 16, 2019, the Court entered a Memorandum and
Order and Order to Show Cause (Doc. 5) (“MOSC”),
granting Plaintiff until August 9, 2019, to show good cause
why his Complaint should not be dismissed for the reasons set
forth in the MOSC. Plaintiff filed a Response (Doc. 6), and
an Affidavit of Prejudice for Judicial Recusal (Doc. 7) and
Memorandum in Support of Judicial Recusal (Doc. 8).
request for recusal is denied. Plaintiff argues that the
undersigned should recuse in this case because the
undersigned recused in Justice v. Kansas,
16-3215-DDC-TJJ. However, in that case, the Court found that
Plaintiff “[did] not offer good grounds for the
undersigned judge to recuse, ” but directed
reassignment of the case “for reasons other than those
stated in plaintiff's motion.” No. 16-3216-DDC-TJJ
at Doc. 20. Next, Plaintiff argues that the case law cited in
this Court's MOSC is not applicable because this case is
a “Criminal Complaint” and Heck v.
Humphrey, has been overruled. (Doc. 7, at 1.) Lastly,
Plaintiff argues that the undersigned fails to appreciate
Plaintiff's presentation of facts, and therefore acts
without jurisdiction. Id. at 2. Plaintiff's
Memorandum in Support of Judicial Recusal (Doc. 8) sets forth
arguments regarding Plaintiff's disagreement with the
Court's reasoning in the MOSC.
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.
Court also finds that Plaintiff's Response (Doc. 6) fails
to show good cause why his Complaint should not be dismissed.
Plaintiff's Complaint takes issue with summonses issued
in his state criminal case in Sedgwick County, Kansas, No.
2016-CR-2867. Plaintiff claims that DHS summonses were
improperly used to obtain phone records instead of a search
warrant. Plaintiff claims that the detective referred to the
summons as a subpoena during the preliminary hearing,
misleading the court into believing it was a legal instrument
used to legally acquire such phone records with the approval
of a judge or magistrate. Plaintiff names as Defendants a
Wichita Police Department Detective; four agents with the
Department of Homeland Security, ICE Division; and the
Sedgwick County Assistant District Attorney. Plaintiff
requests the assignment of a Special Prosecutor to prosecute
Defendants. (Doc. 1, at 2.)
alleges that pursuant to his Complaint he is bringing formal
criminal charges against Defendants and he asks the Court to
send his Complaint to a Special Prosecutor and have the
United States Government represent Plaintiff as the
“victim-in-fact.” (Doc. 1-1.) Plaintiff further
requests “no delay” and states that he will not
“as the victim of the enumerated crimes - allow any
plea negotiations for any reduced sentences by any of the
MOSC, the Court found that Plaintiff's request to bring
criminal charges against Defendants is subject to dismissal
because this Court cannot order the initiation of criminal
charges, which is a decision within the discretion of
prosecuting attorneys. See Presley v. Presley, 102
Fed.Appx. 636, 636-37 (10th Cir. 2004) (holding that a court
order for “investigation and prosecution of various
people for various crimes” would “improperly
intrude upon the separation of powers”). The powers and
duties of special grand juries are set forth in 18 U.S.C.
§ 3332. Section 3332 does not create a private right of
action. Private rights of action to enforce federal law must
be created by Congress, and courts look to whether the text
of the statute itself clearly “display[s] congressional
intent to create new rights.” Morales v. U.S. Dist.
Court for Southern Dist. of Florida, 580 Fed.Appx. 881,
886 (11th Cir. 2014) (citing Alexander v. Sandoval,
532 U.S. 275, 286, 289 (2001)). “And Congress must
‘display[ ] an intent to create not just a private
right but also a private remedy.” Id. (citing
Alexander, 532 U.S. at 286).
court in Morales held that there is no
“rights-creating” language in § 3332(a), and
even if the language “arguably implies some potential
duty owed on the part of the U.S. Attorney to present
information to a special grand jury, that is not a duty owed
to Morales individually.” Id. (citing
Alexander, 532 U.S. at 289) (“Statutes that
focus on the person regulated rather than the individuals
protected create no implication of an intent to confer rights
on a particular class of persons.”); see also
Hantzis v. Grantland,772 F.Supp.2d 1, 3 (D. D.C. 2009)
(“no private right of action is available” under
§ 3332(a)); Lundy v. United States, No.
07-1008, 2007 WL 4556702, at *2 (C.D. Ill.Dec. 21, 2007),
corrected on other grounds, No. 07-1008, 2008 WL
2510172 (C.D. Ill. June 19, 2008) (“§ 3332(a) does
not confer a private right of action”); Bryant v.
Fienberg, No. 206-CV-13849, 2006 WL 2924744, at *2 (E.D.
Mich. Oct. 10, 2006) (the “plaintiff does not have a
private cause of action under 18 U.S.C. § 3332(a), the
Special Grand Jury statute”); see also Walters v.
Vallani, No. 2:09-CV-00505-KJD-GWF, 2010 WL 597086, at
*7 (D. Nev. Feb.16, 2010) (decision regarding what charge to
file or bring before a grand jury is that of the prosecutor,