United States District Court, D. Colorado
ORDER DENYING RECUSAL
P. Gallagher United States Magistrate Judge.
the Court is Plaintiff Lazaro Aguilar's “Motion
Requesting Change of Venue.” (ECF No. 5; Oct. 7, 2016).
In the motion, Plaintiff requests that I and Senior District
Judge Babcock not be assigned to his case due to an alleged
conflict of interest. (Id.). Plaintiff identifies
other cases he has filed in this District as the basis for
the alleged conflict of interest. (Id.). However, he
provides no other allegations or explanations in support of
the alleged conflict of interest. (Id.).
Court must liberally construe Plaintiff's filings because
he is not represented by an attorney. Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not act as an advocate for pro se
litigants. See Id. The Court construes the
“Motion Requesting Change of Venue” as a motion
requesting recusal. The motion will be denied.
for disqualifying magistrate judges is regulated by 28 U.S.C.
§ 455(a). Section 455(a) states that A[a]ny justice,
judge, or magistrate of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” The general purpose of '
455(a) is “to promote public confidence in the
integrity of the judicial process” and to avoid even
the “appearance of impropriety.” Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 859-60
(1988). Pursuant to § 455, the Court is not required to
accept all factual allegations as true “and the test is
whether a reasonable person, knowing all the relevant facts,
would harbor doubts about the judge's
impartiality.” Glass v. Pfeffer, 849 F.2d
1261, 1268 (10th Cir. 1988) (internal quotation marks
omitted). The standard is “purely objective” and
the inquiry is “limited to outward manifestations and
reasonable inferences drawn therefrom.” United
States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).
U.S.C. § 144 provides a procedure whereby a party to a
proceeding may request that the presiding judge recuse
himself or herself based upon personal bias or prejudice
either against the moving party or in favor of any adverse
party. Section 144 requires the moving party to submit a
timely and sufficient affidavit of personal bias and
prejudice. See Green v. Branson, 108 F.3d 1296, 1305
(10th Cir. 1997). “The affidavit must state with
required particularity the identifying facts of time, place,
persons, occasion, and circumstances.” Hinman v.
Rogers, 831 F.2d 937, 939 (10th Cir. 1987). Although the
Court must accept the facts alleged in the supporting
affidavit under § 144 as true, the affidavit is
construed strictly against the moving party. See
Glass, 849 F.2d at 1267. The movant has a substantial
burden “to demonstrate that the judge is not
impartial.” United States v. Burger, 964 F.2d
1065, 1070 (10th Cir. 1992).
has not submitted a timely and sufficient affidavit of
personal bias and prejudice. He fails to make any reasoned
argument that would demonstrate an appearance of partiality
or bias. It appears that Plaintiff merely disagrees with the
Court's orders entered in other cases he has filed in
this District. “[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S.
540, 555 (1994); see also Lammle v. Ball Aerospace &
Techs. Corp., 589 F.App'x 846, 849 (10th Cir. 2014)
(“Unfavorable judicial rulings . . . are insufficient
grounds for recusal.”). Plaintiff's vague and
conclusory allegations of a conflict of interest do not meet
his burden of proving a basis for recusal.
not discern any nonconclusory allegation in the motion that
would call into question the impartiality of this magistrate
judge. A judge has a strong obligation not to recuse when
there is no legitimate reason to recuse. Nichols v.
Alley, 71 F.3d 347, 351 (10th Cir. 1995).
Plaintiff's allegations, therefore, fail to establish
that I have any personal bias or prejudice against him, and I
will not recuse myself from this case.
has also requested that Judge Babcock not be assigned to this
case. Judge Babcock may separately address this request in
extent the motion may be construed to seek a change of venue,
such request will be denied. Under the general venue statute,
28 U.S.C. § 1391(b), venue is proper in a judicial
district where the defendants reside, where a substantial
part of the events or omissions giving rise to the claims
occurred, or, if there is no district in which the action may
otherwise be brought, in a district where the defendants are
subject to personal jurisdiction. The change of venue
provision, at 28 U.S.C. § 1404(a), states, inter
alia, that the Court may, in the interest of justice,
transfer an action to any other district court where the
action might have been brought, or to any district to which
all parties have consented. Under 28 U.S.C. § 1404(b), a
civil action may be transferred from the division in which it
is pending to any other division in the same district upon
motion, stipulation, or consent of the parties.
case, the defendants are Colorado state entities, and the
events or omissions giving rise to Plaintiffs claims occurred
in Colorado. Plaintiff fails to show that venue is proper in
any jurisdiction other than the District of Colorado. In
addition, the defendants have not yet been served in this
action and have not consented to transfer venue to another
district or to another division within the District of
Colorado. Consequently, the request for a change of venue is
not authorized by federal statute.
that the “Motion Requesting Change of Venue” ...