                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         March 14, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
ZACHARY RUSK,

      Plaintiff - Appellant,

v.                                                         No. 17-4193
                                                   (D.C. No. 1:17-CV-00156-TS)
TIMOTHY TYMKOVICH,                                           (D. Utah)

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.
                   _________________________________

      Plaintiff-Appellant Zachary Rusk—appearing pro se—appeals the district

court’s dismissal of his complaint against the Honorable Timothy Tymkovich, the

Chief Judge of this Circuit. We exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

                                           I

      In July 2017, Chief Judge Tymkovich entered an order and judgment on behalf

of a unanimous panel of this court, affirming the district court’s dismissal of Rusk’s

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
pro se complaint against the Honorable Paul Warner, the Chief Magistrate Judge of

the United States District Court for the District of Utah.1 Rusk v. Warner, 693 F.

App’x 778 (10th Cir. 2017). That order and judgment held that Rusk’s complaint did

not meet the pleading standards of Federal Rule of Civil Procedure 8(a)(2) and may

have also been barred by absolute judicial immunity had it included more detail. Id.

at 779.

      After the Supreme Court denied certiorari on Rusk’s action against Judge

Warner, Rusk v. Warner, 138 S. Ct. 243 (2017), Rusk—appearing pro se—filed the

instant case against Chief Judge Tymkovich, ROA, Vol. I at 1. Rusk alleges that

Chief Judge Tymkovich “egregiously and pervasively retaliated against” him, Aplt.

Br. at 1, and pursues theories of abuse of process and intentional tortious

interference, see ROA, Vol. I at 53.

      The district court dismissed Rusk’s complaint, holding that Chief Judge

Tymkovich was absolutely immune from suit for actions taken in his judicial

capacity. Id. at 70–72 (citing Mireles v. Waco, 502 U.S. 9, 11 (1991)). Rusk now

appeals, arguing the district court acted without jurisdiction, Aplt. Br. at 10, and that

absolute judicial immunity violates the First and Fourteenth Amendments, id. at 1.

                                            II

      Before addressing the merits, we consider whether the panel must recuse itself

from this case, given that a colleague is the Defendant-Appellee. Under 28 U.S.C.


      1
         Rusk also alleges that Chief Judge Tymkovich had earlier declined to take
disciplinary action against Judge Warner. See ROA, Vol. I at 17, 24.
                                            2
§ 455(a), federal judges must disqualify themselves from any proceeding in which

their impartiality might reasonably be questioned. “However, the statutory guidance

for recusal must also be read in light of the judges’ ‘duty to sit’ on cases filed with

the court.” Switzer v. Berry, 198 F.3d 1255, 1257 (10th Cir. 2000). “[S]ection

455(a) must not be so broadly construed that it becomes, in effect, presumptive, so

that recusal is mandated upon the merest unsubstantiated suggestion of personal bias

or prejudice.” United States v. Cooley, 1 F.3d 985, 992–93 (10th Cir.1993). Further,

under the “rule of necessity,” a judge is qualified to decide a case—even if he or she

would normally be impeded from doing so—when “the case cannot be heard

otherwise.” United States v. Will, 449 U.S. 200, 213–14 (1980). We apply the duty

to sit and the rule of necessity here, and conclude that the panel members need not

recuse themselves from this case.

                                           III

      As to the issues Rusk raises in this appeal, we begin by concluding that the

district court had jurisdiction over Rusk’s complaint. The opening section of Rusk’s

pro se complaint—labeled “JURISDICTIONAL BASIS”—cited 42 U.S.C. § 1983

and alleged “violations of certain protections guaranteed to [Rusk] by the First and

Fourteenth Amendments of the federal Constitution.” ROA, Vol. I at 4. We

conclude, given Chief Judge Tymkovich’s status as a federal rather than state official,

that Rusk’s complaint can be construed as a Bivens action. See Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). We in

turn conclude that 28 U.S.C. § 1331, which “grants federal courts jurisdiction to hear

                                            3
cases that arise under the Constitution,” afforded the district court with jurisdiction

over Rusk’s complaint. Carlson v. Green, 446 U.S. 14, 39 (1980).

       Also, we are persuaded that Chief Judge Tymkovich is absolutely immune

from all suits based on his conduct in his official capacity as a judge of this court.

See Mireles, 502 U.S. 9–10 (“[I]t is a general principle of the highest importance to

the proper administration of justice that a judicial officer, in exercising the authority

vested in him, shall be free to act upon his own convictions, without apprehension of

personal consequences to himself.” (quoting Bradley v. Fisher, 80 U.S. 335, 347

(1871))). Because this suit does not allege any extra-judicial conduct, Chief Judge

Tymkovich is absolutely immune from this action, as it is based on actions taken in

his judicial capacity.

                                           IV

       The district court’s order dismissing this action with prejudice is AFFIRMED.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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