Thomas v. McCotter

UNITED STATES COURT OF APPEALS
Filed 1/22/97
FOR THE TENTH CIRCUIT

ROBERT HENRY WERNER, also
known as Redelk Ironhorse Thomas,

Plaintiff-Appellant,
No. 96-4050
v. (D.C. No. 92-CV-261-S)
(D. Utah)
O. LANE MCCOTTER, SCOTT
CARVOR, DAVID R. FRANCHINA,
JEFFREY GALLI, NANCY KEMP,
RICHARD BURT, LYNN WALLER,
C. KIM THOMPSON,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before PORFILIO, BALDOCK, and HENRY, 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This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff Robert Henry Werner appeals from an order of the district court

granting defendants’ motion for summary judgment following a remand from this

court. In the remand order, a panel of this court directed the district court to

determine whether defendant prison officials had complied with the Religious

Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, when they determined

that Mr. Walker, a Cherokee Native American, would not be permitted access to a

sweat lodge or possession of a medicine bag. See Werner v. McCotter, 49 F.3d

1476 (10th Cir.), cert. denied, 115 S. Ct. 2625 (1995). We affirm.

On appeal, Mr. Walker argues he had a constitutional right to have his case

heard by a new “unbiased” trial judge. He also contends the district court (1)

failed to properly review his motions for summary judgment and to clarify the

record, (2) failed to examine the new evidence he submitted which included his

assertion that he had received unequal treatment compared to Mormons and

Catholics who are allowed religious objects; and (3) erroneously accepted

defendants’ “over exaggerations.”

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

Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir. 1987). Prior adverse rulings

alone do not create grounds for disqualification. See Mitchell v. Maynard, 80

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F.3d 1433, 1449 (10th Cir. 1996). Upon review, we hold that the district court

did not abuse its discretion in declining to recuse.

“We review the meaning of the [RFRA] de novo, including the definitions

as to what constitutes substantial burden and what constitutes a religious belief,

and the ultimate determination as to whether the [RFRA] has been violated. . . .”

Thiry v. Carlson, 78 F.3d 1491, 1495 (10th Cir.), cert. denied, 117 S. Ct. 78

(1996). Sincerity is a factual matter and, as with historical and other underlying

factual determinations, we defer to the district court's findings, reversing only if

those findings are clearly erroneous. Id.

We have reviewed the record and conclude the district court properly

fulfilled its duty under the RFRA. See United States v. Meyers, 95 F.3d 1475,

1481-82 (10th Cir. 1996). Mr. Werner’s arguments are without merit.

Mr. Werner’s petition to enter evidence is DENIED. The judgment of the

United States District Court for the District of Utah is AFFIRMED for

substantially the reasons stated therein. The mandate shall issue forthwith.

Entered for the Court

John C. Porfilio
Circuit Judge

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