United States District Court, D. Utah
MEMORANDUM DECISION & ORDER
DALE A. KIMBALL, UNITED STATES DISTRICT JUDGE.
matter is before the court on the Plaintiff Ute Indian
Tribe's Verified Motion to Recuse [ECF Docket No. 29]
Judge Clark Waddoups from this case, pursuant to 28 U.S.C.
§§ 144 and 455(a). Judge Waddoups referred the
motion to Chief Judge Robert Shelby, who referred the motion
to the undersigned judge. The motion is fully briefed and the
court concludes that a hearing on the motion would not
significantly aid the court in its determination of the
motion. After carefully reviewing the materials submitted by
the parties as well as the law and facts relevant to the
pending motion, the court issues the following Memorandum
Decision and Order.
moves for Judge Waddoups' recusal in this case under both
28 U.S.C. § 144 and 28 U.S.C. § 455(a), arguing
that Judge Waddoups is biased or prejudiced against it and
that his impartiality might reasonably be questioned.
28 U.S.C. § 144
28 U.S.C. § 144, “[w]henever 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.” 28 U.S.C. § 144. It is well
settled, however, that the mere filing of an affidavit under
Section 144 does not automatically disqualify a judge.
See, e.g., United States v. Bray, 546 F.2d
851, 857 (10th Cir.1976).
Tenth Circuit has held that “[u]nder § 144, the
affidavits filed in support of recusal are strictly construed
against the affiant and there is a substantial burden on the
moving party to demonstrate that the judge is not
impartial.” United States v. Burger, 964 F.2d
1065, 1070 (10thCir. 1992); see also Hinman v.
Rogers, 831 F.2d 937, 939 (10th Cir. 1987).
“The affidavit must state with required particularity
the identifying facts of time, place, persons, occasion, and
circumstances” necessitating recusal. Hinman,
831 F.2d at 939.
sustain disqualification under § 144, supra,
there must be demonstrated bias and prejudice of the judge
arising from an extrajudicial source which renders his trial
participation unfair in that it results in an opinion formed
... on some basis other than that learned from his
participation in the case.” United States v.
Bray, 546 F.2d 851, 859 (10th Cir.1976) (quotation and
citation omitted). Adverse rulings by a judge in a case are
not grounds for disqualification.
at 857; Green v. Dorrell, 969 F.2d 915, 919
(10th Cir. 1992).
[O]pinions 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. Thus, judicial remarks during the course
of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily
do not support a bias or partiality challenge.
Litkey v. United States, 510 U.S. 540, 555 (1994).
alleges that in every case in which it has appeared as a
litigant bfore Judge Waddoups, Judge Waddoups has
demonstrated bias against it and hostility toward both the
doctrine of Indian tribal sovereignty and the federal policy
of supporting tribal self-governance. However, Plaintiff only
points to adverse rulings as support for this assertion. This
court has reviewed Judge Waddoups' decisions and finds
them to be well-reasoned attempts at thoroughly analyzing the
relevant law. Although Judge Waddoups has ruled against
Plaintiffs on a number of occasions, each decision is
supported by a thoughtful discussion of the law. This court
finds no apparent hostility in any of the decisions.
Moreover, the fact that a decision is overturned by an
appellate court is no indication that the district court
decided the matter with bias or prejudice.
Plaintiffs contend that Judge Waddoups treats it differently
than other similarly situated litigants based on the timing
with which he handles matters. The timing in which a judge
can handle a matter is not always within his control,
especially if the matter involves a request for expedited
consideration and emergency relief. The timing of a
court's consideration of matters can be impacted by a
variety of factors. This court has reviewed the differences
in timing on the different motions and matters before Judge
Waddoups, and this court concludes that his case management
does not appear to indicate any animosity or prejudice
asserts that Judge Waddoups has taken judicial notice of
improper matters and made improper inferences. But
Plaintiff's “‘unsubstantiated suggestions,
speculations, [and] opinions,' are insufficient to
establish even the appearance of any bias, prejudice, or
misconduct that would warrant judicial recusal.”
See Carpenter v. Boeing Co., 456 F.3d 1183,
(10th Cir. 2006) (quoting Bryce v. Episcopal
Church, 289 F.3d 648, 659-60 (10th Cir.
2002)). Judge Waddoups has simply made rulings on each of the
parties' motions based on the pleadings, motions, and
memoranda submitted by the parties and the court's
application of the facts presented as they apply to the
relevant law. There is no evidence that Judge Waddoups has
ruled or acted based on any “extrajudicial
source.” To the extent that Plaintiff believes that
Judge Waddoups has misapplied or misconstrued the law, the
proper relief is to appeal the adverse ruling not seek his
recusal. None of his applications of the law appear to this
court to show a deep-seated favoritism or antagonism against
Plaintiff. Therefore, the court finds that there is no basis
for Judge Waddoups to recuse in this case.