Webb v. Swensen (In re Sokolik)

DAVID WEBB, Plaintiff, v. ELIJAH SWENSEN, TRAVIS KEARL,ALICIA MARIE WASHINGTON, ANDY MUELLER,BENJAMIN REINKINS SOKOLIK,MICHAEL ASHMENT, BRETT JAY LYMAN,AND CLINT R. DRAKE, DEFENDANTS, Defendants.

Case No. 1:14-cv-00148-DB-DBP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, NORTHERN DIVISION

February 23, 2016

REPORT AND RECOMMENDATION

District Judge Dee Benson

Magistrate Judge Dustin B. Pead

INTRODUCTION

This matter was referred to the Court under 28 U.S.C. § 636(b)(1)(B). (ECF No. 6.) On November 19, 2014, this Court granted pro se Plaintiff leave to proceed in forma pauperis. (ECF No. 2.) Plaintiff filed his initial complaint against the following Defendants: (1) Officer Elijah Swensen,¹ (2) Officer Travis Kearl, (3) Police Chief Michael Ashment, (4) Alicia Marie Washington, and (5) two fictitious John Doe Defendants (later identified as Defendants Mueller and Sokolik). (ECF No. 3.) The Court dismissed Plaintiff's initial complaint without prejudice, inviting him to file an amended complaint. (ECF Nos. 8, 13.)

Presently before the Court are a number of Plaintiff's motions. First, Plaintiff seeks recusal of the undersigned from this case. (ECF No. 18.) Plaintiff also separately filed an affidavit pursuant to 28 U.S.C. § 144 that he apparently intended as part of the recusal motion. (See ECF No. 20.) Plaintiff also filed another motion for recusal. (ECF No. 27.) The Court considers facts stated in all three filings to analyze Plaintiff's motion to disqualify pursuant to 28 U.S.C. § 455. The Courtwill separately address Plaintiff's affidavit pursuant to 28 U.S.C. § 144. Next, Plaintiff filed a motion to amend his complaint. (ECF No. 25.)

For the reasons set forth below, this Court RECOMMENDS the District Court DENY Plaintiff's various motions for recusal. (ECF Nos. 18, 20, 27.) The Court FURTHER RECOMMENDS the District Court DENY Plaintiff's motion to amend his complaint because the proposed amendment is futile. (ECF No. 25.)

ANALYSIS

I. PLAINTIFF'S MOTIONS FOR RECUSAL SHOULD BE DENIED²

Plaintiff's various recusal motions appear to take issue primarily with a docket entry made by the clerk's office terminating this case on April 28, 2015. Plaintiff indicates he spoke with staff from the undersigned's chambers on April 27, 2015, and understood that he would be permitted to file a motion to amend his complaint on April 28. (ECF Nos. 18, 27.) Plaintiff's affidavit indicates that he also believes recusal is warranted based on various adverse decisions. (ECF No. 20.) Primary amongst the targeted decisions is a report and recommendation issued by the undersigned in another of Plaintiff's cases, recommending he be placed the District of Utah's list of restricted filers. (See ECF No. 20.); Webb v. Caldwell, No. 15-59 (D. Utah, filed April 28, 2015). Plaintiff also mentions a "robbery discovered on Wednesday, 26 November 2014 . . . ." (ECF No. 20.) Finally, Plaintiff argues that the Court should be recused because it is tainted by knowledge that Plaintiff filed lawsuits against the U.S. Marshals' service. (Id.)

a. 28 U.S.C. § 455

A judge must "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Likewise, a judge must recuse if he has apersonal bias concerning a party, financial interest in the litigation, or personal knowledge of disputed evidentiary facts concerning the proceeding. Id. § 455(b). "The test [under Section 455] is whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality. Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). "The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom. In applying the test, the initial inquiry is whether a reasonable factual basis exists for calling the judge's impartiality into question." United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993). As the Tenth Circuit has recognized, several matters do not satisfy the requirements for recusal under 28 U.S.C. § 455, including: "Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters . . . [and] prior rulings in the proceeding, or another proceeding, solely because they were adverse . . . ." Cooley at 993.

Here, Plaintiff's affidavit describes only adverse rulings of the Court coupled with unfounded conclusions and innuendo. For instance, Plaintiff concludes this Court exceeded its authority and ordered closure of Plaintiff's case. The facts do not support this conclusion. The docket shows the Court acted twice in this case before Plaintiff filed recusal motions. First, the Court granted Plaintiff's application to proceed in forma pauperis (ECF No. 2.); Second, it issued a report and recommendation to the District Court. (ECF No. 8.) Subsequent to granting Plaintiff's IFP application and prior to the motions regarding recusal, this Court issued no order.

Next, Plaintiff mentions a certain "robbery" that took place in November 2014. He wisely stops short of alleging that the court participated in this robbery. The only fact alleged is that records of Plaintiff's prior litigation were "stolen in the robbery discovered on Wednesday, 26 November 2014 . . . ." Plaintiff then notes that the Court cited to Plaintiff's same prior litigation in its report and recommendation in Webb v. Caldwell. No. 15-59 (D. Utah, filed April 28, 2015).To the extent Plaintiff suspects the Court was involved in any robbery, the Court wishes to reassure Plaintiff that it was not. The Court need not engage in criminal behavior to obtain the records at issue; the records can be accessed through the Court's Electronic Case Filing System.

Finally, the Court wishes to address Plaintiff's conversation with its staff to arrange for an extension of time. The Court will not engage in a fact-finding expedition with its staff to determine what was said because this inquiry could create its own prejudice. Instead, the Court will take treat the allegation as true for this analysis. Regardless of any conversation, the Rules of Civil Procedure make clear that only the Court may grant extensions of time. Fed. R. Civ. P. 6(b). Indeed, only the Court may act in this case. No member of chambers staff has authority to act for the Court. Thus, the conversation with staff does not support a claim of bias for an action not taken by the Court. Instead, the Court mentions this to make absolutely clear to Plaintiff that he cannot obtain Court action by speaking with chambers staff. Based on the foregoing, Plaintiff has not indicated there is a proper basis for recusal under 28 U.S.C. § 455.

b. 28 U.S.C. § 144

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term [session] at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S. C. § 144. Under the statute, once a timely and sufficient affidavit of bias or prejudice is filed the judge "must cease to act in the case and proceed to determine the legal sufficiency of the evidence." Bell v. Chandler, 569 F.2d 556, 559 (10th Cir. 1978). The filing of the affidavitalone does not bring about a disqualification. See United States v. Ritter, 540 F.2d 459, 461-62 (10th Cir. 1976). Rather, an affidavit is only considered sufficient to support disqualification if the facts and reasons provided "give fair support to the charge of a bent of mind that may prevent or impede impartiality of judgment" Berger v. United States, 255 U.S. 22, 24 (1921), or when a "reasonable man would conclude on the facts stated [in the affidavit] that the district judge had a special bias against the defendant." United States v. Thompson, 483 F.2d 527 (3d Cir. 1973); see also 28 U.S.C. § 144.

Plaintiff's affidavit is unable to satisfy the standard set forth in 28 U.S.C. 144. Other than referencing unfavorable judicial opinions issued by this court, Plaintiff fails to identify any personal bias or prejudice that this Court has against him. It is well established that an adverse ruling alone does not provide sufficient grounds for disqualification. Mitchell v. Maynard, 80 F.3d 1433, 1449 (10th Cir. 1996). And, while the Court takes allegations of its bias or prejudice very seriously, "[t]here is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is." Brody v. President & Fellows of Harvard College, 664 F.3d 10, 12 (1st Cir. 1981), cert denied, 455 U.S. 1027(1982). Upon review, Plaintiff's affidavit fails to sufficiently state a claim of bias or prejudice. Accordingly, the motions for recusal should be denied. (ECF Nos. 18, 20, 27.)

II. PLAINTIFF'S SECOND MOTION TO AMEND IS FUTILE

Plaintiff's proposed amendment is futile because he has not stated a viable cause of action against any of the named Defendants. Plaintiff filed his motion to amend one week after the Court issued its report and recommendation recommending dismissal of his claims. (ECF No. 12.) He filed the same document again nearly two months after the District Court adopted the report and recommendation. (ECF No. 14.) Plaintiff later filed a revised motion to amend,seeking to add Defendants Drake and Lyman to the lawsuit. (ECF No. 25.) The first two motions appear moot because the claims in the proposed second amended complaint include the claims from the earlier...