                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       August 17, 2006
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                    TENTH CIRCUIT                       Clerk of Court



 DERRAL SCHRODER,

          Plaintiff - Appellant,
 v.                                                Nos. 05-1487 & 06-1057
                                                   (Consolidated Appeals)
 JAM ES HOW ARD FRASHER;                         (D.C. No. 05-CV -1836-OES)
 LARRY C. PORTER; M ICH AEL                               (D . Colo.)
 PORTER,

          Defendants - Appellees.



                              OR DER AND JUDGM ENT *


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Derral Schroder appeals the district court’s remand of his state criminal

case, dismissal of his 42 U.S.C. § 1983 suit, and denial of his motion for recusal. 1

      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
      1
         This Court consolidated Schroder’s appeals for the purposes of briefing,
record, and submission in an order dated February 27, 2006. Schroder submitted
a document, entitled “Response to Lucero, Hartz and O’Brien Order dated Feb.
27, 2006,” to this Court following the consolidation. Even when construed
liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se
litigant’s pleadings are to be construed liberally . . . .”), the document contains
                                                                        (continued...)
For substantially the same reasons as set forth by the district court we AFFIRM

its orders and DISM ISS Schroder’s appeals.

      On September 22, 2005, Schroder filed a notice of removal in district court

seeking to remove his state criminal case from the Baca County Court in

Springfield, Colorado to the U.S. District Court for the D istrict of C olorado. Less

than a week later, on September 28, 2005, he filed a verified complaint in district

court suing M ichael Porter and James Howard Frasher, Baca County judges, as

well as Larry C. Porter, the assistant district attorney that prosecuted Schroder’s

case. In the complaint, Schroder alleges that Attorney Porter and Judge Frasher

failed to disqualify themselves from his case, and Judge Porter failed to promptly

recuse himself. Because Schroder asserted that his civil rights were violated, the

district court treated the complaint as a 42 U.S.C. § 1983 action. On October 3,

2005, Schroder filed a motion seeking to disqualify M agistrate Judge O . Edward

Schlatter, who had been assigned to both actions.

      The district court found no legitimate basis for removal and summarily

remanded Schroder’s criminal case to Baca County Court. Finding that

Schroder’s § 1983 suit sought monetary damages against defendants immune to

such relief, the district court dismissed the action under 28 U.S.C.

§ 1915(e)(2)(B) as legally frivolous. Finally, because Schroder failed to advance



      1
       (...continued)
no objection to the consolidation order, and we do not consider it further.

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any legal basis for M agistrate Judge Schlatter’s disqualification, the court denied

his motion for recusal.

      An order remanding a case to the state court from which it was removed is

ordinarily not reviewable on appeal. See 28 U.S.C. § 1447(d). Section 1447(d)

provides an exception to this general rule for cases removed pursuant to 28 U.S.C.

§ 1443, however, Schroder’s case does not fall within this category. Accordingly,

we will not consider his appeal of the district court’s remand.

      W e review a dismissal pursuant to § 1915(e)(2)(B) de novo. See Perkins v.

Kansas Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). Section

1915(e)(2)(B)(iii) requires a court to dismiss a case proceeding in forma pauperis

(IFP) where the plaintiff seeks monetary relief against a defendant who is immune

from such relief. Schroder sought damages from two state court judges and an

assistant district attorney for actions they undertook in their official capacities.

Judges are absolutely immune from monetary liability for actions taken in their

judicial capacity unless they clearly acted without jurisdiction. See M ireless v.

W aco, 502 U.S. 9, 11-12 (1991). Similarly, prosecutors are immune from suits

for civil damages when initiating and presenting a criminal case. See Imbler v.

Pachtman, 424 U.S. 409, 431 (1976). W e therefore conclude that the district

court properly dismissed Schroder’s § 1983 suit as frivolous.

      W hether to recuse is a decision comm itted to the discretion of the presiding

judge. United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992). W e

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review the denial of a motion for recusal for abuse of discretion. Id. A judge, or

in this case a magistrate judge, must recuse himself “in any proceeding in which

his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). This is an

objective test, based on a judge’s “outward manifestations and reasonable

inferences drawn therefrom,” rather than the judge’s actual state of mind.

Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995). A defendant may request

recusal by filing an affidavit with the court stating the reasons the defendant

believes the judge is personally biased or prejudiced. 28 U.S.C. § 144. W e

accept the facts alleged in the affidavit as true for the purpose of review. See

Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988).

      The only possible ground for recusal Schroder alleges is that M agistrate

Judge Schlatter sentenced him to three and one-half years’ imprisonment in 1991

and was reversed on appeal. However, “judicial rulings alone almost never

constitute a valid basis for bias.” Liteky v. United States, 510 U.S. 540, 555

(1994). A prior ruling will suffice to show bias only where it derived from an

extrajudicial source, or where the judge’s remarks reveal a high degree of

favoritism or antagonism. Id. Schroder has failed to allege any facts that suggest

M agistrate Judge Schlatter’s sentencing order met either of these criteria. As

such, we conclude that the district court did not abuse its discretion in denying

Schroeder’s motion for recusal.




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      Finally, Schroder seeks leave to proceed IFP on this appeal. Because he

was granted permission to proceed IFP by the district court, his IFP status

continues on appeal and his request is moot.

      For the foregoing reasons we AFFIRM the orders of the district court and

DISM ISS Schroder’s appeals.



                                               ENTERED FOR THE COURT



                                               Carlos F. Lucero
                                               Circuit Judge




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