                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 23, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    MONTGOMERY CARL AKERS,

                Plaintiff-Appellant,

    v.                                                   No. 09-1115
                                               (D.C. No. 1:09-CV-00480-ZLW)
    ZITA L. WEINSHIENK; RON                               (D. Colo.)
    WILEY; ROBERT BAUER; JERRY
    JONES; MR. LORINCZ; MARK
    COLLINS; GEORGE KNOX,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, Circuit Judges.



         Montgomery Carl Akers, a federal prisoner proceeding pro se, challenges

the district court’s sua sponte dismissal of his Bivens 1 action on the grounds that

the presiding judge, Zita L. Weinshienk, was required to recuse from the case


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
         See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
under 28 U.S.C. § 455(b)(5)(i) because she is a party defendant. Exercising our

jurisdiction under 28 U.S.C. § 1291, we vacate the district court’s dismissal order

and remand this case for reassignment to another judge.

                                   I. Background

      In 1995, after finding Mr. Akers to be an abusive litigant, the United States

District Court for the District of Colorado entered an order enjoining him from

initiating any lawsuit in that court without representation by counsel unless he

first obtains leave from the court to proceed pro se. We upheld the

filing-restrictions order in Akers v. Sandoval, No. 95-1306, 1996 WL 635309,

at *1 (10th Cir. Nov. 4, 1996) (unpublished). Complying with that order, in

February 2009, Mr. Akers requested permission to file the instant pro se action,

which alleges a conditions-of-confinement claim arising out of his incarceration

at the United States Penitentiary in Florence, Colorado. For reasons unclear from

the face of his complaint, in addition to naming various employees of USP

Florence, Mr. Akers also named as a defendant U.S. District Judge Weinshienk, to

whom this case was ultimately assigned.

      Judge Weinshienk, acting sua sponte, denied Mr. Akers’s request to

proceed pro se and dismissed the action. Her reasoning was twofold. First, she

found that Mr. Akers had failed to comply with the in forma pauperis statute

because he had not provided a copy of his prisoner trust fund account statement.

See 28 U.S.C. § 1915(a)(2). Second, she found Mr. Akers had violated the

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court’s local rules by failing to include a complete list of his prior lawsuits in the

court-promulgated “prisoner complaint form.” Mr. Akers then filed a motion to

recuse Judge Weinshienk based on her status as a party defendant. Judge

Weinshienk denied that motion, however, concluding that under United States v.

Grismore, 564 F.2d 929 (10th Cir. 1977), she was not required to recuse despite

the seemingly mandatory language of § 455(b)(5)(i). Mr. Akers’s appeal focuses

exclusively on Judge Weinshienk’s refusal to recuse.

                                    II. Discussion

      We review the denial of a motion to recuse for abuse of discretion. United

States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006). “[U]nder that standard

we will uphold a district court’s decision unless it is an arbitrary, capricious,

whimsical, or manifestly unreasonable judgment.” Higganbotham v. Oklahoma

ex rel. Okla. Transp. Comm’n, 328 F.3d 638, 645 (10th Cir. 2003) (internal

quotation marks omitted).

      The statutory provision at issue provides that a judge “shall” disqualify

herself in circumstances where she is a party to the proceeding. 28 U.S.C.

§ 455(b)(5)(i). In two recent unpublished orders, we explicitly informed Judge

Weinshienk that this provision requires her recusal when she is a named

defendant in the action before her. See Young v. United States, Nos. 07-1314 &

07-1333, 2009 WL 624076, at *7 (10th Cir. Mar. 12, 2009) (applying harmless

error analysis to “Judge Weinshienk’s violation of § 455(b)(5)(i)”); Akers v.

                                          -3-
Weinshienk, No. 08-1471, 2009 WL 1789074, at *1 (10th Cir. June 24, 2009)

(reversing and remanding for reassignment). We recognize that the second order

was issued after Judge Weinshienk issued her decision in this case, but

nevertheless, the statute plainly provides for mandatory recusal in the

circumstances presented here.

      Grismore did not announce a contrary holding. In that case, a criminal

defendant sought to disqualify his presiding judge on the grounds that he was

considering suing the judge in an unrelated civil matter. We concluded there

were no grounds for disqualification under § 455, stating that “[a] judge is not

disqualified merely because a litigant sues or threatens to sue him.” Grismore,

564 F.2d at 933. Judge Weinshienk contends this language insulates her decision

to preside over this case notwithstanding her status as a defendant and our express

urging in Young that she “follow the plain command in § 455(b)(5)(i) and recuse

herself from any future cases in which is she is named as a party,” 2009 WL

624076 at *7. The obvious difference between this case and Grismore, however,

is that the judge in that case was not a defendant, or even at risk of becoming a

defendant, in the case in which the recusal was sought. By contrast, in this case,

as in Young and Akers v. Weinshienk, Judge Weinshienk issued a ruling

dismissing an action in which she was a current defendant. Absent being required

to sit by the rule of necessity, see United States v. Will, 449 U.S. 200, 213-14

(1980), we are aware of no exception that would have justified her refusal to

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recuse under these circumstances. 2 Judge Weinshienk’s decision violated the

clear mandate of § 455(b)(5)(i) and was an abuse of discretion.

      In certain limited circumstances we have found it appropriate to review an

improper refusal to recuse for harmless error. See Young, 2009 WL 624076 at *7;

Higganbotham, 328 F.3d at 645. But we conclude such review is not appropriate

in this case. The dismissal of this action was not mandated by a straightforward

application of the law to the merits of Mr. Akers’s claims. Cf. Higganbotham,

328 F.3d at 646 (reviewing for harmless error where case presented

“straightforward questions of law”). Rather, in a discretionary ruling, Judge

Weinshienk dismissed Mr. Akers’s claims because she found his compliance with

the local civil rules to be less than perfect. Under these circumstances, we cannot

say with confidence that the outcome was a foregone conclusion because another

judge may have ruled differently. Cf. Young, 2009 WL 624076 at *7 (noting with

confidence “that a remand would simply result in another judge reaching the same

result as Judge Weinsheink”). We recognize that on remand another judge may

very well reach the same conclusion as Judge Weinshienk, but given the


2
       In the order denying Mr. Akers’s recusal motion, Judge Weinshienk cites a
number of decisions from other federal district courts and one unpublished First
Circuit opinion, in which those courts questioned the compulsory aspect of
§ 455(b)(5)(i). We are not bound by those decisions or persuaded by their
reasoning. We agree with the panel’s approach in Mr. Akers’s earlier case
(No. 08-1471) and hold that § 455(b)(5)(i) imposes an absolute rule requiring
recusal unless “the case cannot be heard otherwise.” Will, 449 U.S. at 213
(internal quotation marks omitted).

                                        -5-
inherently discretionary nature of the decision under review, that possibility is not

dispositive.

                                  III. Conclusion

      Because Judge Weinshienk failed to recuse in this case as required under

28 U.S.C. § 455(b)(5)(i), the judgment of the district court is VACATED and this

action is REMANDED for reassignment to another judge.

      Mr. Akers’s motion to proceed in forma pauperis is GRANTED and he is

reminded of his continuing obligation to make partial payments until the entire

filing fee has been paid.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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