Armstrong v. Bailey , 101 F. App'x 780 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 27 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DONALD E. ARMSTRONG,
Plaintiff-Appellant,
v. No. 03-4208
(D.C. No. 2:03-CV-212-TC)
STEVEN R. BAILEY, Trustee of the (D. Utah)
Willow Brook Cottages, L.L.C.
Bankruptcy Estate and individually;
DUANE H. GILLMAN, individually
and as counsel for Steven R. Bailey,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Appellant Donald E. Armstrong appeals two orders of the district court, one
dismissing his appeal for failure to timely file an opening brief, and one denying
his motion to recuse. We affirm.
Matters regarding extensions of time in which to file briefs are left to the
discretion of the relevant court. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (finding no abuse of discretion in dismissing bankruptcy appeal because of
untimely filed brief); cf. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1494
(10th Cir. 1995) (finding no abuse of discretion in permitting late filing under
Federal Rules of Civil Procedure). Given the fact that Armstrong had already
received an extension of thirty days in which to file his opening brief, we
perceive no abuse of discretion in refusing to grant further extensions. The fact
that this court has, on occasion, allowed late filings by Armstrong and perhaps
others has no relevance in this matter. The district court was fully within its
authority to manage its own docket. See Span-Eng Assocs. v. Weidner, 771 F.2d
464, 470 (10th Cir. 1985).
Next, Armstrong argues that the judge should have recused. Because the
judge documented her decision not to recuse, we review this matter for abuse of
discretion. Lopez v. Behles (In re Am. Ready Mix, Inc.), 14 F.3d 1497, 1500 (10th
Cir. 1994); Sac & Fox Nation v. Cuomo, 193 F.3d 1162, 1168 (10th Cir. 1999).
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When the impartiality of a judge may be reasonably questioned in any
proceeding, recusal is required. 28 U.S.C. § 455(a). Armstrong argues that no
reasonable person could do anything but question the impartiality of the judge.
To support this contention, however, Armstrong points to nothing but conclusory
statements and the fact that the judge has previously ruled against him. This is
insufficient to establish grounds for recusal under § 455(a).
Previous adverse rulings are almost never a basis for recusal. Liteky v.
United States, 510 U.S. 540, 555 (1994). The most common basis for recusal is
when a judge learns something outside of the proceedings before her which
“result[s] in an opinion on the merits on some basis other than what the judge
learned from [her] participation in the case.” See In re Am. Ready Mix, 14 F.3d
at 1501; see also Liteky, 510 U.S. at 551 (noting that extrajudicial source factor is
the only common basis upon which to establish disqualifying bias). Armstrong
does not contend that there is any extrajudicial source at work here that has
prejudiced the judge. He appears to argue, instead, that this is one of those rare
cases where the alleged bias or prejudice “springs from the facts adduced or the
events occurring at trial, [and] is so extreme as to display clear inability to render
fair judgment.” Id. We have thoroughly examined the record in this case and
disagree.
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In connection with his recusal arguments, Armstrong continues to complain
that no court has addressed what he considers the “excessive penalties in the
Modified Judgment [that] are unconstitutionally excessive.” See Aplt. Br. at 17.
We assume Armstrong is referring to the judgment of the Texas state court in
1997. There is no court within the Tenth Circuit with jurisdiction to review any
part of that judgment, and the refusal of courts within this Circuit to do so is not
evidence of bias toward Armstrong or an effort to deny him access to the courts.
Armstrong’s motion to supplement the record is DENIED. The judgment of
the district court is AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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