Albright v. Colorado
| Decision Date | 26 November 2012 |
| Docket Number | Civil Action No. 12-cv-02174-BNB |
| Parties | GREGORY DEAN ALBRIGHT, Plaintiff, v. STATE OF COLORADO, a State in the United States of America, SEVENTEENTH JUDICIAL DISTRICT, a Political Subdivision of the State of Colorado, and STEVE HARTLEY, Warden of the Arkansas Valley Correctional Facility, Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER DENYING MOTION TO RECUSE AND
DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff, Gregory Dean Albright, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Arkansas Valley Correctional Facility in Crowley, Colorado. Mr. Albright attempted to initiate this action by filing pro se a document titled "Preamble of Complaint and Notification of Intended Action" (ECF No. 1) asserting jurisdiction pursuant to 42 U.S.C. §§ 1983, 1985, and 1986; and 28 U.S.C. §§ 1343, 1443, 2241, 2254, and 2201.
In an order filed on August 20, 2012, I directed Mr. Albright to cure the deficiencies in this action by obtaining (with the assistance of his case manager or the facility's legal assistant) the Court-approved forms used in filing whatever type of action he was trying to initiate, together with the applicable instructions, which are available at www.cod.uscourts.gov. The August 20 order warned Mr. Albright that he may not assert civil rights claims and habeas corpus claims in the same action.
On October 9, 2012, after being granted an extension of time in which to cure the designated deficiencies, Mr. Albright paid the $350.00 filing fee (ECF No. 7). On October 22, 2012, he filed a sixty-three-page Complaint using only the cover page to the Court-approved complaint form for nonprisoner cases (ECF No. 12 at 1), and a forty-six-page pleading titled "Affidavit and Petition for Federal Intervention" (ECF No. 13).
On November 9, 2012, Mr. Albright filed two documents, titled "Affidavit and Petition for Recusal of Magistrate [Judge] Boland" (ECF No. 14) and "Notification to the Court of the Clerk Interference of the Court Process" (ECF No. 15). On November 16, 2012, he filed three letters, one each to Chief Judge Wiley Y. Daniel (ECF No. 16), the Clerk of the Court (ECF No. 17), and me (ECF No. 18). Mr. Albright is advised that Local Rule 77.2 of the Local Rules of Practice for this Court prohibits ex parte communications, such as letters, with judicial officers.
The Court must construe Mr. Albright's filings liberally because he is representing himself. See 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 be the pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the petition for my recusal will be denied, and Mr. Albright will be ordered to file an amended Prisoner Complaint.
First, I will address the November 9 document titled "Affidavit and Petition for Recusal of Magistrate [Judge] Boland" (ECF No. 14). In the recusal petition, Mr. Albright contends that at an event on December 15, 2011, sponsored by the Faculty ofFederal Advocates, I stated "that all prisoners [sic] litigation are [sic] frivolous." Id. at 1.1 As a result of this alleged comment, Mr. Albright argues that I am prejudiced and biased toward prisoner litigation. He also disagrees with other aspects of my August 20 order to cure, such as my warning not to assert civil rights and habeas corpus claims in the same action. Mr. Albright seeks my recusal pursuant to 28 U.S.C. § 455 and 28 U.S.C. § 144.
Title 28 U.S.C. § 144 provides a procedure whereby a party to a proceeding may request the judge before whom the matter is pending to recuse himself or herself based on 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). Rumor, speculation, opinions and the like do not suffice. Id. "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 Imust accept the facts alleged in a proper supporting affidavit under § 144 as true, the affidavit is construed strictly against the moving party. See Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988). The moving party has a substantial burden "to demonstrate that the judge is not impartial." United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992).
Here, Mr. Albright has failed to satisfy the procedural requirements of § 144 in at least two crucial ways. First, he has failed to file a supporting affidavit that is either sworn to or affirmed. United States v. Peltier, 553 F. Supp. 886, 890 n.10 (D. N.D. 1982); In re Beecher, 50 F. Supp. 530, 531 (E.D. Wash. 1943). In addition, there is no "certificate of counsel of record stating that [the supporting affidavit] is made in good faith." 28 U.S.C. § 144. As the court noted in Williams v. New York City Housing Authority, 287 F. Supp. 2d 247, 249 (S.D.N.Y. 2003):
A pro se party cannot supply a certificate of counsel. For this reason, at least one court has concluded that a pro se plaintiff cannot bring an affidavit under 28 U.S.C. § 144. See Robinson v. Gregory, 929 F. Supp. 334, 337-38 (S.D. Ind. 1996). The court in Robinson noted that not only are the requirements of Section 144 strictly enforced, but the requirement for a certificate of counsel of record prevents abuse of the section's procedures. . . . In addition, the court stated that parties proceeding pro se have other mechanisms available to them to guard against biased or prejudiced judges. Id. (). [Plaintiff's] affidavit, which is submitted pro se and without a certificate of counsel of record, fails on this threshold matter.
Accord Glass, 849 F. 2d at 1267 ().
Title 28 U.S.C. § 455(a) provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The goal of this provision is to avoid even the appearance of partiality. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). Pursuant to § 455, I am 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, 849 F.2d at 1268 (internal quotation marks omitted). The standard is completely objective and the inquiry is limited to outward manifestations and reasonable inferences drawn therefrom. See United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).
Mr. Albright's petition for my recusal is insufficient because it fails to show personal bias or prejudice. Instead, he bases the recusal petition on a misinterpretation or false speculation. The recusal petition fails to make any argument that would demonstrate an appearance of partiality. In addition, the fact that Mr. Albright disagrees with aspects of my August 20 order to cure is not sufficient to demonstrate that disqualification is appropriate pursuant to either § 144 or § 455(a) because "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994). Therefore, the November 9 motion is denied to the extent Mr. Albright seeks my recusal.
Secondly, I have reviewed the pleadings (ECF Nos. 12 and 13) Mr. Albright filed on October 22 and find that they are deficient. First, Mr. Albright may not file two different pleadings simultaneously in the same action. He must present all of his claims and allegations in a single pleading.
In addition, the statutory basis for the claims Mr. Albright is asserting in thisaction is not clear. Mr. Albright's claims apparently arise out of the revocation of his parole. It appears that Mr. Albright thinks he is asserting civil rights claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, and habeas corpus claims pursuant to 28 U.S.C. §§ 2241 and 2254. He also asserts jurisdiction pursuant to other statutes, i.e., 28 U.S.C. §§ 1443 and 2201. He seeks his release from prison and unspecified declaratory relief and money damages.
Claims under 28 U.S.C. § 2254 challenge the fact of an offender's state conviction or sentence, while claims asserted under 28 U.S.C. § 2241 challenge the execution of an inmate's sentence. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (). By contrast, claims arise under the civil rights laws if the offender is challenging the conditions of his confinement. Id. at 812; see also Preiser v. Rodriguez, 411 U.S. 475, 499, (1973) ()
To the extent Mr. Albright seeks to challenge his parole revocation or obtain his release from incarceration, his sole federal remedy is a writ of habeas corpus after he has exhausted state court remedies. See Preiser v. Rodriguez, 411 U.S. 475, 502 (1973). The Court will not consider the merits of any habeas corpus claims in this civil rights action. If, as it appears, Mr. Albright seeks in this action to overturn what he believes was an unlawful revocation of his parole, he must initiate a separate case by filing an application for a writ of habeas corpus on the proper form, and h...
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