United States District Court, D. Colorado
A. BRIMMER United States District Judge
matter comes before me on Plaintiff Dean Carbajal's
Motion for Change of Judge Based on the Recent Discovery of
Judge Philip Brimmer's Extrajudicial Bias [Docket No.
904], wherein plaintiff Dean Carbajal seeks my recusal
pursuant to 28 U.S.C. §§ 144 and 455. I will
address Mr. Carbajal's arguments under § 144 first
and then address his arguments under § 455.
28 U.S.C. § 144
144 of Title 28 of the United States Code provides that, when
a party “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.” An affidavit of bias and prejudice must be
timely, sufficient, made by a party, and accompanied by a
certificate of good faith of counsel or of the pro se party.
Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir.1987)
(per curiam); United States v. Boyd, 208 F.3d 638,
645 (7th Cir. 2000) (pro se party does not need certificate
of counsel), reversed on other grounds, Boyd v. United
States, 531 U.S. 1135 (2001). Although a court must
accept the truth of the facts alleged in the affidavit under
§ 144, United States v. Ritter, 540 F.2d 459,
462 (10th Cir. 1976) (per curiam), the court construes that
affidavit strictly against the party seeking recusal.
Weatherhead v. Globe International, Inc., 832 F.2d
1226, 1227 (10th Cir.1987).
Carbajal's declaration correctly indicates that I used to
work for the Denver District Attorney's Office and that,
as a result, I know former Denver District Attorney Mitchell
Morrissey and defendant Jeffrey Watts, who once worked as an
investigator for the DA's Office. However, I left that office
in 2001 and being acquainted with someone is not a sufficient
grounds for disqualification. “Judges are not required
to recuse when they have merely a casual relationship with a
victim, attorney, witness, or litigant appearing before the
court; occupying the bench does not require withdrawal from
society.” Bragg v. Chavez, No. CIV 07-0343
JB/WDS, 2007 WL 5685116, at *3 (D.N.M. Nov. 9, 2007) (citing
Sexson v. Servaas, 830 F.Supp. 475, 482 (S.D. Ind.
evidence of bias, Mr. Carbajal notes that I did not authorize
the issuance of a trial subpoena for Mr. Morrissey. Docket
No. 904 at 19. The reason that I did not allow Mr. Carbajal
to call Mr. Morrissey as a trial witness, as the transcript
of the December 16, 2016 trial preparation conference will
reflect, is that Mr. Carbajal was not able to identify any
relevant testimony that Mr. Morrissey would have other than
that based on Mr. Carbajal's unfounded speculation. Mr.
Carbajal claimed that Mr. Morrissey was necessary to attack
collaterally certain convictions of Mr. Carbajal, which
testimony, assuming Mr. Morrissey had personal knowledge of
such convictions, would nevertheless be improper. Mr.
Carbajal also suspected that Mr. Morrissey had conducted an
investigation of the Watts incident, but that assumption is
speculative and was denied by counsel for Mr. Watts, who had
spoken with Mr. Morrissey about that subject. Mr. Carbajal
further assumed that Mr. Morrissey would be familiar with the
DA's policy on use of investigator cars, which testimony
would be irrelevant even if true since Mr. Carbajal could not
predicate his excessive force claim on Mr. Watts not
following internal policies regarding investigators' use
of office cars. Plaintiff also believed that Mr. Morrissey
would know the reasons that Mr. Watts eventually left the
DA's office, which was speculative and irrelevant to what
happened during the incident that Mr. Carbajal bases his
claim upon. Given these circumstances, a reasonable person
would not perceive bias in my having refused to issue a trial
subpoena for Mr. Morrissey. See Bryce v. Episcopal Church
in Diocese of Colo., 289 F.3d 648, 659-60 (10th
Cir.2002) (“The recusal statute should not be construed
so broadly as to become presumptive or to require recusal
based on unsubstantiated suggestions of personal bias or
Carbajal's declaration states that I have
“overlooked the fraudulent conduct of the Denver
Defendants and State Defendants.” Docket No. 904 at 19.
It is not clear what plaintiff refers to, but
disqualification cannot be based on the mere fact of an
unfavorable ruling, Liteky v. United States, 510
U.S. 540, 555 (1994), especially if that ruling was accepting
a magistrate judge's recommendation.
Carbajal's declaration states that he has sued an
attorney that works for the law firm of Holland & Hart,
where my sister is a partner, and therefore this case and
“upcoming civil actions” will directly impact my
sister's finances and reputation. Docket No. 904 at 19.
Plaintiff's declaration does not identify the attorney
who he has sued, but his motion identifies that attorney as
Michael Carrigan. Id. at 2. Mr. Carbajal did not sue
Mr. Carrigan in this case, the case in which he did sue Mr.
Carrigan is not related to this one, and therefore there is
no basis for me to recuse.
remainder of Mr. Carbajal's declaration is based on his
assumptions that I will be unfair. An affidavit, or in this
case a declaration, is insufficient if it merely states
conclusions, rumors, beliefs, and opinions; it must
“state with required particularity the identifying
facts of time, place, persons, occasion, and
circumstances.” Hinman, 831 F.2d at 939. The
procedural requirements of this provision are strictly
construed. United States v. Hines, 696 F.2d 722, 729
(10th Cir. 1982). For the reasons stated above, I find that
neither Mr. Carbajal's declaration nor the arguments in
his motion are sufficient under 28 U.S.C. § 144 to
justify my recusal.
28 U.S.C. § 455(a)
Carbajal also moves under 28 U.S.C. § 455 for me to
recuse. Section 455(a) states: “Any justice, judge or
magistrate of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned.” Section 455(b) states: “He shall
also disqualify himself in the following circumstances: (1)
Where he has a personal bias or prejudice concerning a party.
. . .” Under Section 455, a judge must recuse himself
when there is the appearance of bias, regardless of whether
there is actual bias. Nichols v. Alley, 71 F.3d 347,
350 (10th Cir. 1995). “The test is whether a reasonable
person, knowing all the relevant facts, would harbor doubts
about the judge's impartiality.” Hinman,
831 F.2d at 939 (citation omitted). If the issue of whether
§ 455 requires disqualification is a close one, the
judge must be recused. Nichols, 71 F.3d at 352.
other hand, the Tenth Circuit has noted that a judge also has
“as strong a duty to sit when there is no legitimate
reason to recuse as he does to recuse when the law and facts
require.” Id. at 351. “[S]ection 455(a)
must not be so broadly construed that it becomes, in effect,
presumptive, so that recusal is mandated upon the merest
unsubstantiated suggestions of personal bias or
prejudice.” Franks v. Nimmo, 796 F.2d 1230
(10th Cir.1986) (quoting Hines, 696 F.2d at 729);
see also United States v. Cooley, 1 F.3d 985, 993
(10th Cir. 1993) (“The statute is not intended to give
litigants a veto power over sitting judges, or a vehicle for
obtaining a judge of their choice.”).
Carbajal does not separate his § 455 arguments from his
§ 144 arguments in his motion. As a result, it is not
clear how his arguments under § 455 differ. However, the
above-mentioned arguments about my knowing Mr. Morrissey and
Mr. Watts from my employment with the Denver DA's Office
would not cause a reasonable person, knowing all the relevant
facts, to consider me to be biased. See Nichols, 71
F.3d at 351 (“mere familiarity with the
defendants” not ordinarily grounds for recusal). This
is especially true in light of my rulings in this case. The
case was assigned to me on January 27, 2016. Docket No. 780.
On March 29, 2016, I ruled on the magistrate judge's
recommendation that the Court grant Mr. Watts' Motion for
Summary Judgment [Docket No. 697]. Docket No. 804. As I noted
at the time, Mr. Carbajal did not object to Mr. Watts'
summary judgment motion. He also did not object to the
magistrate judge's recommendation to grant the motion.
Had I accepted the recommendation, Mr. Watts would have been
dismissed as a party and the claim that involved Mr.
Morrissey as a witness would have been dismissed. However,
based on my own review of the law, I determined that Mr.
Watts was not entitled to summary judgment on plaintiff's
excessive force claim. Id. at 16. A reasonable
person, knowing all the relevant facts, would not consider my
decision to rule against Mr. Watts to be evidence of bias in
favor of Mr. Watts, especially when Mr. Carbajal failed to
oppose the motion or object to the recommendation.
a reasonable person, knowing all the relevant facts, would
not perceive bias on my part based on Mr. Carbajal having
named Mr. Carrigan as a defendant in an unrelated lawsuit,
especially given that Mr. Carrigan was dismissed as a
defendant years ago by a different judge. Mr. Carbajal's