Bellinsky v. Galan et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Case No. 23-cv-03163-PAB-STV
JACOB BELLINSKY,
Plaintiff,
v.
RACHEL ZINNA GALAN, individually,
STEVEN JAMES LAZAR, individually,
ANDREW NEWTON HART, individually,
TERRI MEREDITH, individually,
RYAN PAUL LOEWER, individually,
BRYCE DAVID ALLEN, individually,
JEFFREY RALPH PILKINGTON, individually,
BRIAN DALE BOATRIGHT, individually, and
STATE OF COLORADO, corporately,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before me on plaintiff’s Objection to 03/01/24 Orders (#69 & #70)
and to All Other Continued Known-Void Orders & Fourth Demand for Required
Recusals [Docket No. 71].
I. 	BACKGROUND
On February 29, 2024, plaintiff Jacob Bellinsky filed a motion requesting that I
recuse myself and order the recusal of Magistrate Judge Scott T. Varholak from all of
plaintiff’s cases pursuant to 28 U.S.C. § 455. Docket No. 67 at 1. Mr. Bellinsky
additionally requested the “self-disqualification” of Magistrate Judge Varholak. Id. On
March 1, 2024, I denied the portion of Mr. Bellinsky’s motion requesting that I recuse
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myself and order the recusal of Magistrate Judge Varholak. Docket No. 69 at 3. On
March 1, 2024, Magistrate Judge Varholak denied the portion of plaintiff’s motion
seeking the magistrate judge’s “voluntary disqualification.” Docket No. 70 at 2.
On March 14, 2024, Mr. Bellinsky filed a motion “object[ing] to orders #69 and
#70 and to all continued known-void orders in this case.” Docket No. 71 at 1 (footnote
omitted). Mr. Bellinsky also makes a second demand for the recusal of myself and
Magistrate Judge Varholak. Id.1
II. 	ANALYSIS
A. Objections to Docket No. 69 and Docket No. 70
Plaintiff states that he objects to my order, Docket No. 69, and Magistrate Judge
Varholak’s order, Docket No. 70. See id. As a preliminary matter, the Federal Rules of
Civil Procedure and this Court’s Local Rules provide no procedural mechanism allowing
a party to file an objection to a district judge’s order. Moreover, Mr. Bellinsky cites no
authority suggesting that he can do so. Accordingly, I deny the portion of Mr. Bellinsky’s
motion objecting to Docket No. 69.
I will next consider Mr. Bellinsky’s objection to the magistrate judge’s order. The
district court reviews a magistrate judge’s order on a non-dispositive motion under a
“clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ.
P. 72(a). Under this standard of review, a magistrate judge’s finding should not be
rejected merely because the Court would have decided the matter differently. See
Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985). The clearly erroneous
1 Mr. Bellinsky states that this motion is his “fourth demand” for recusal. Docket
No. 71 at 1. However, Mr. Bellinsky has only filed one other motion for recusal. See
Docket No. 67.
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standard requires a district court to affirm a magistrate judge’s decision unless, “on the
entire evidence[, the district court] is left with the definite and firm conviction that a
mistake has been committed.” Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464
(10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948));
see also Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006). “Under the ‘contrary
to law’ standard, the reviewing court sets aside the magistrate order only if it applied an
incorrect standard or applied the appropriate legal standard incorrectly.” Swan Glob.
Invs., LLC v. Young, No. 18-cv-03124-CMA-NRN, 2019 WL 2171457, at *3 (D. Colo.
May 17, 2019) (internal quotations, alterations, and citations omitted). A recusal order
is a non-dispositive matter. See Nelson v. Mayorkas, No. 23-cv-00100-NYW-SBP,
2023 WL 6390480, at *2 (D. Colo. Oct. 2, 2023). Therefore, I will review Magistrate
Judge Varholak’s order, Docket No. 70, under the clearly erroneous or contrary to law
standard. See 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).
Although Mr. Bellinsky states that he “objects” to Magistrate Judge Varholak’s
order, see Docket No. 71 at 1, Mr. Bellinsky does not argue that Magistrate Judge
Varholak’s order is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A);
Fed. R. Civ. P. 72(a). Mr. Bellinsky fails to identify any factual or legal errors in the
order. I find that Magistrate Judge Varholak applied the correct legal standard under 28
U.S.C. § 455 for analyzing whether he should disqualify himself from this proceeding.
See Docket No. 70 at 1-2. Furthermore, under the clearly erroneous standard, I am not
“left with the definite and firm conviction that a mistake has been committed.” See
Ocelot Oil Corp., 847 F.2d at 1464. Accordingly, I overrule Mr. Bellinsky’s objection to
Docket No. 70.
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B. Plaintiff’s Second Recusal Request
Mr. Bellinsky argues that Magistrate Judge Varholak and I must “immediately
recuse or self-disqualify” ourselves from this case pursuant to 28 U.S.C. § 455(a)
because our “impartiality” has been reasonably questioned. Docket No. 71 at 3-5. I will
rule only on that portion of the motion requesting that I recuse myself.
Under 28 U.S.C. § 455(a), a federal judge is required to recuse himself “in any
proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). “Section 455 establishes ‘an objective standard: disqualification is appropriate
only where the reasonable person, were he to know all the circumstances, would harbor
doubts about the judge’s impartiality.’” United States v. Mobley, 971 F.3d 1187, 1205
(10th Cir. 2020) (quoting United States v. Wells, 873 F.3d 1241, 1251 (10th Cir. 2017)).
“In conducting this review, [the court] must ask how these facts would appear to a well-
informed, thoughtful and objective observer, who is an average member of the public,
not a hypersensitive, cynical, and suspicious person.” Id. (internal quotations and
citation omitted). “Though judges ‘have a strong duty to recuse when appropriate,’ they
also have ‘a strong duty to sit,’ and § 455 must not be so broadly construed as to make
recusal mandated ‘upon the merest unsubstantiated suggestion of personal bias or
prejudice.’” Id. (quoting Wells, 873 F.3d at 1251).
“[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) (unpublished)
(“Unfavorable judicial rulings and ordinary efforts at courtroom administration are
insufficient grounds for recusal.”). Rather, recusal based on a judge’s decisions,
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opinions, or remarks “is necessary when a judge’s actions or comments ‘reveal such a
high degree of favoritism or antagonism as to make fair judgment impossible.’” United
States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (quoting Liteky, 510 U.S. at 555).
Adverse rulings that do not evidence such favoritism or antagonism “are grounds for
appeal, not recusal.” Id. (citation omitted).
Mr. Bellinsky argues that my impartiality has been reasonably questioned on
several grounds. Docket No. 71 at 3-4. First, Mr. Bellinsky argues that I have
demonstrated bias because I have failed to “process” Mr. Bellinsky’s “criminal
complaints” and I have failed to “convene one or more federal grand juries for
investigation.” Id. at 3. Next, Mr. Bellinsky argues that I have committed “misprision of
felony and misprision of treason,” I have aided the defendants “in their ongoing crimes
and offenses,” and I have failed to address “hundreds of frauds upon the federal court.”
Id. 	Furthermore, Mr. Bellinsky contends that I “unlawfully and without legitimate basis”
remanded his first case, Case No. 23-cv-01799-PAB, to state court. Id. at 4. Finally,
Mr. Bellinsky argues that I ignored a letter that he provided to the Clerk of the Court on
November 30, 2023, requesting that this case not be assigned to me. Id. 2
I find that a reasonable person, knowing all the circumstances, would not harbor
doubts about my impartiality. See Mobley, 971 F.3d at 1205. Mr. Bellinsky cites no
authority suggesting that a federal judge has a duty or the ability to initiate criminal
cases or grand jury investigations in these circumstances. The “United States and its
2 Mr. Bellinsky also appears to argue that I refused to disqualify the Attorney
General’s Office from representing the individual defendants. Docket No. 71 at 4. Mr.
Bellinsky, however, identifies no decision that I issued or any motion that he filed on this
subject. Accordingly, I decline to consider this argument.
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attorneys have the sole power to prosecute criminal cases in the federal courts.” Maine
v. Taylor, 477 U.S. 131, 136 (1986). “The commencement of a federal criminal case by
submission of evidence to a grand jury is ‘an executive function within the exclusive
prerogative of the Attorney General.’” Maehr v. United States, No. 18-cv-02273-PAB-
NRN, 2019 WL 3940931, at *2 (D. Colo. Aug. 21, 2019) (quoting Baranoski v. U.S.
Attorney’s Office, 215 F. App’x 155, 156 (3d Cir. 2007) (unpublished)). “While district
courts have certain responsibilities in connection with selecting, instructing, and
supervising grand juries, . . . the investigation of crime is primarily an executive function.
Nowhere in the Constitution or in the federal statutes has the judicial branch been given
power to monitor executive investigations before a case or controversy arises.” Id.
(quoting Jett v. Castaneda, 578 F.2d 842, 845 (9th Cir. 1978)). I therefore find no
grounds for recusal based on my purported failure to “process” Mr. Bellinsky’s “criminal
complaints” or “convene one or more federal grand juries for investigation.” See Docket
No. 71 at 3.3
Furthermore, Mr. Bellinsky’s suggestions that I have committed “misprision of
felony and misprision of treason,” aided the defendants “in their ongoing crimes and
offenses,” and failed to address “hundreds of frauds upon the federal court,” see id., are
merely “unsubstantiated suggestion[s] of personal bias or prejudice.” See Mobley, 971
F.3d at 1205. Mr. Bellinsky provides no facts in support of these arguments. See
Wells, 873 F.3d at 1251 (noting that a court should begin a § 455(a) analysis by asking
3 Additionally, I previously rejected this argument in my order ruling on Mr.
Bellinsky’s first recusal motion, see Docket No. 69 at 3, and in one of Mr. Bellinsky’s
other cases. See Galan v. Bellinsky, No. 23-cv-01799-PAB, 2023 WL 8075634, at *4-5
(D. Colo. Nov. 21, 2023).
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“whether a reasonable factual basis exists for questioning the judge’s impartiality”
(citation omitted)). Accordingly, these conclusory arguments provide no valid grounds
for recusing myself.
I find that the remand order in Case No. 23-cv-01799-PAB provides no basis for
recusal. See Liteky, 510 U.S. at 555 (“judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.”); Wells, 873 F.3d at 1252 (“adverse rulings
cannot in themselves form the appropriate grounds for disqualification” (citation
omitted)). Mr. Bellinsky has identified no decisions, opinions, or remarks by myself
revealing such a “high degree of favoritism or antagonism as to make fair judgment
impossible.” See Nickl, 427 F.3d at 1298. Accordingly, any adverse ruling to Mr.
Bellinsky is “grounds for appeal, not recusal.” Id. (citation omitted).4
Finally, I find no grounds for recusal based on Mr. Bellinsky’s argument that I
ignored a letter that he provided to the Clerk of the Court on November 30, 2023. Mr.
Bellinsky argues that his letter, which appears to be Docket No. 2, requested that the
Clerk of the Court not assign his case to “judge Philip A. Brimmer given his involvement
in the deprivation of [plaintiff’s] due process rights in Case No. 1:23-cv-01799-PAB and
[Judge Brimmer] is therefore disqualified under the law.” Docket No. 71 at 4; see also
Docket No. 2. Mr. Bellinsky appears to argue that my failure to timely address this letter
demonstrates my bias and partiality. See Docket No. 71 at 4. Pursuant to the Local
Rules, “[i]f an unrepresented party in a new case already has a case pending or had a
case terminated within 12 months of the new filing, the new case shall be assigned to
4 In fact, Mr. Bellinsky appealed the Court’s remand order to the Tenth Circuit.
See Bellinsky v. Galan, Case No. 23-cv-01799-PAB, Docket No. 28. The Tenth Circuit
dismissed Mr. Bellinsky’s case for lack of jurisdiction. Id., Docket No. 36.
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the judicial officers who were assigned the earlier case.” D.C.COLO.LCivR 40.1(d)(1).
The Clerk of the Court correctly assigned Case No. 23-cv-03163-PAB-STV to me
because I was assigned to Mr. Bellinsky’s earlier case, Case No. 23-cv-01799-PAB.
Mr. Bellinsky’s letter addressed to the Clerk of the Court did not request that I recuse
myself. See Docket No. 2. Mr. Bellinsky first filed a motion requesting that I recuse
myself on February 29, 2024. Docket No. 67. I ruled on the motion the next business
day. See Docket No. 69. Accordingly, I find that Docket No. 2 provides no grounds for
recusal.
It is therefore
ORDERED that the portion of plaintiff’s motion [Docket No. 71] objecting to
Docket No. 69 is DENIED. It is further
ORDERED that the portion of plaintiff’s motion [Docket No. 71] objecting to
Docket No. 70 is OVERRULED. It is further
ORDERED that the portion of plaintiff’s motion [Docket No. 71] seeking that I
recuse myself is DENIED. It is further
ORDERED that the portion of plaintiff’s motion [Docket No. 71] seeking that
Magistrate Judge Varholak recuse or voluntarily disqualify himself is referred to
Magistrate Judge Varholak.
DATED March 28, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
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