Opinion
21-1105-HLT-KGG
07-26-2021
CARROLL WILLIAM LEWIS, II, Plaintiff, v. JOSEPH ROBINETTE BIDEN, et al., Defendants.
MEMORANDUM & ORDER ON PLAINTIFF'S MOTION FOR CHANGE OF JUDGE
HON. KENNETH G. GALE, U.S. MAGISTRATE JUDGE.
Now before the Court is Plaintiff's motion “for change of judge.” (Doc. 35.) Having reviewed the submission, Plaintiff's motion is DENIED.
Citing K.S.A. §20-311d(a), Plaintiff requests that the undersigned Magistrate Judge remove himself from the case because Plaintiff “believes that the Magistrate Judge to whom this action is assigned cannot afford that party a fair trial in this action.” (Id., at 2.) This request fails for two reasons.
First, Plaintiff's request relies on a state of Kansas statute governing a “change of judge” that has no bearing on these proceedings. The Court will, however, consider Plaintiff's motion as a request for the undersigned to recuse himself.
In federal cases, recusal is governed by 28 U.S.C.A. §455, titled “disqualification of justice, judge, or magistrate judge.” Pursuant to § 455, a judge must disqualify him- or herself “in any proceeding in which his impartiality might reasonably be questioned, ” or “[w]here he has a personal bias or prejudice concerning a party ... .” 28 U.S.C. § 455(a) & (b)(1). “The test for determining impartiality is an objective one, based on a judge's ‘outward manifestations and reasonable inferences drawn therefrom.'” Woods v. Ross, Nos. 21-2011, -2012, -2013, -2014, 2021 WL 3077236, at *2 (D. Kan. July 21, 2021) (citing Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995) (citation omitted)). “Speculation, opinion, and adverse rulings are no reason for recusal under § 455.” Id. (citing United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993)).
Plaintiff has failed to identify any reason to call into question the undersigned Magistrate Judge's impartiality or suggest a bias or prejudice. Plaintiff's apparent discontent with any adverse rulings by the undersigned does not create a basis for recusal.
Second, Plaintiff asserts his belief “that the Magistrate Judge to whom this action is assigned cannot afford that party a fair trial in this action.” (Doc. 35, at 2.) The undersigned Magistrate Judge could provide a fair trial to Plaintiff. The undersigned will not, however, preside over trial of this action. Rather, the case is assigned to a District Judge, the Honorable Holly L. Teeter, who will preside over trial of this matter.
IT IS THEREFORE ORDERED that Plaintiff's motion (Doc. 35) is DENIED.
IT IS SO ORDERED.