Young v. United States

FILED
United States Court of Appeals
Tenth Circuit

March 12, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court

TIMOTHY DOYLE YOUNG,

Plaintiff-Appellant,

v. No. 07-1314
(D.C. No. 06-cv-1253-ZLW)
UNITED STATES OF AMERICA; (D. Colo.)
U.S. DEPT. OF JUSTICE; FEDERAL
BUREAU OF PRISONS; ERIC H.
HOLDER, JR., Attorney General;
HARLEY LAPPIN, BOP Director;
HARRELL WATTS, Appeals
Administrator; MICHAEL NALLEY,
Regional Director, NCR; DARYL
KOSIAK, Regional Counsel, NCR;
MR. WERLICK, Previous Unit
Manager; R. WILEY, Warden, ADX;
CAPT. BAUER, Health Systems
Administrator; MS. BAILEY,
Psychologist; MR. COLLINS,
Unit Manager; MR. SUDLOW,
Case Manager; MR. HAYGOOD,
Counselor; MR. DEAKINS,
Recreation Supervisor;
MR. BELLANTONI, Education
Supervisor; MS. PARSONS,
Law Library Worker; MS. REAR,
Adm. Remedy Coordinator; MS.
HAYS, Adm. Remedy Clerk,

Defendants-Appellees.

TIMOTHY DOYLE YOUNG,

Plaintiff-Appellant,
 v. No. 07-1333
(D.C. No. 07-cv-857-ZLW)
U.S. DEPT. OF JUSTICE; ERIC H. (D. Colo.)
HOLDER, JR.; BUREAU OF
PRISONS; HARLEY LAPPIN;
HARRELL WATTS; MICHAEL
NALLEY; R. WILEY;
MR. COLLINS; MR. SUDLOW;
MR. MADISON; JUDGE
WEINSHIENK; MAGISTRATE
BOLAND,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BALDOCK, BRORBY, and EBEL, Circuit Judges.

In these consolidated appeals, 1 plaintiff Timothy Doyle Young, a federal

prisoner appearing pro se, appeals the district court’s orders dismissing without

prejudice two separate actions that he filed in the District of Colorado. Exercising

*
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not binding precedent, except under the doctrines of law of the case, res judicata,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
Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Alberto R. Gonzales as an appellee in these consolidated appeals.

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

in both cases.

I. BACKGROUND

A. Appeal No. 07-1314 (Case No. 06-cv-1253).

In Case No. 06-cv-1253 (the first action), Mr. Young filed a complaint

against seventeen individual defendants, the United States, the Federal Bureau of

Prisons, and the United States Department of Justice. He asserted violations of his

rights under the First, Fifth, and Eighth Amendments, the Freedom of Information

Act, the Americans with Disabilities Act, and the Privacy Act. One claim,

spanning sixteen pages, set forth what amounted to a timeline detailing what he

alleged was a wide-ranging conspiracy to deprive him of his right of access to the

courts. The Honorable Zita L. Weinshienk was assigned to preside over this first

action.

After Mr. Young failed to comply with two orders directing him to file an

amended complaint that both complied with Fed. R. Civ. P. 8 and demonstrated

that he had exhausted his administrative remedies with respect to each of his

claims, Judge Weinshienk entered an order dismissing the first action without

prejudice for failure to file an amended complaint and for failure to prosecute.

Mr. Young then appealed Judge Weinshienk’s dismissal order to this court.

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 In Appeal No. 06-1494, another panel of this court reversed Judge

Weinshienk’s dismissal order and remanded the case for further proceedings. The

panel’s remand order provided as follows:

The shortcomings of Mr. Young’s complaint and his failure to
comply with the district court’s order to file an amended complaint
would ordinarily be ample, even compelling, justification for the
court’s dismissal of his complaint without prejudice. But the legal
landscape changed after that dismissal. No longer must a prisoner’s
complaint establish exhaustion of administrative remedies. See Jones
[v. Bock, 127 S. Ct. 910, 921 (2007)]. This change affects the case
before us in two respects. First, one ground for the order to amend
the complaint was that Mr. Young had inadequately alleged
exhaustion. Second, much of the confusing detail in the complaint
apparently is an effort to explain his failure to exhaust. In this
circumstance we believe that rather than affirming the judgment
(which was proper when entered), the better course is to remand to
permit Mr. Young another opportunity to state his claims in
compliance with the Federal Rules of Civil Procedure. We caution
Mr. Young, however, that continued obstructive conduct, such as
filing repetitive and frivolous motions, will forfeit his opportunity to
file an amended complaint. He would be wise to file no further
pleading except a proper amended complaint.

....

We REVERSE and REMAND to the district court with
instructions to give Mr. Young the opportunity to file one additional
pleading–namely, an amended complaint complying with the Federal
Rules of Civil Procedure. If the amended complaint so complies, the
case should proceed in the normal fashion.

Young v. United States, No. 06-1494, 2007 WL 831588, *2-3 (10th Cir. Mar. 20,

2007).

On remand, Judge Weinshienk entered an “Order Reinstating Case” on

June 1, 2007. In her order, Judge Weinshienk stated that, in accordance with the

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instructions of this court, “Plaintiff is given the opportunity to file one additional

pleading, an Amended Complaint that complies with the Federal Rules of Civil

Procedure.” Case No. 06-cv-1253, Doc. 80 at 1-2. Judge Weinshienk further

stated that “Mr. Young also is cautioned that if he files any repetitive or frivolous

motions he will forfeit his opportunity to file an Amended Complaint.” Id. at 2.

Judge Weinshienk then ordered: (1) “that Plaintiff file an Amended Complaint in

keeping with the Federal Rules of Civil Procedure”; (2) “that the Clerk of the

Court mail to Mr. Young, together with a copy of this order, two copies of a

Prisoner Complaint form”; and (3) “that if Mr. Young fails . . . to file an Amended

Complaint that complies with this Order, to the Court’s satisfaction, the action will

be dismissed without further notice.” Id. On the certificate of mailing attached to

Judge Weinshienk’s order, a Deputy Clerk of the district court certified that he/she

(the name is illegible) “mailed a copy of the Order and two copies of Prisoner

Complaint to [Mr. Young] on 6/1/07.” Id. at 3.

Instead of filing an amended complaint on the Prisoner Complaint forms

that had been furnished to him by the district court, on June 13, 2007, Mr. Young

submitted a pleading to the district court entitled “Preliminary Injunction.”

Id., Doc. 82. As relevant to this appeal, Mr. Young alleged in his Preliminary

Injunction pleading that: (1) his prison “photocopying privileges” had been “cut

off in retaliation” for his submitting a prison grievance regarding a search of his

cell; (2) he could not “file an Amended complaint without reading the case law

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[i.e., Jones v. Bock] which is the basis of reversal”; and (3) the prison officials’

retaliatory actions left him with “an absolute inability to, both, submit a complete

and accurate complaint and to prosecute the case.” 2 Id. at 4, 8, 12.

On July 27, 2007, the district court entered an order dismissing the first

action without prejudice for failure to comply with the court’s June 1, 2007, order

and for failure to prosecute. The court based its dismissal on the following

reasoning:

With respect to Plaintiff’s assertion that he is not able to
prepare an Amended Complaint without reading Jones, the claim
lacks merit. The Tenth Circuit provided sufficient information in the
March 20, 2007, order for Plaintiff to understand the implication of
Jones. The Tenth Circuit stated that pursuant to Jones Plaintiff no
longer must establish exhaustion of his administrative remedies.
Young v. United States of America, No. 06-1494 2007 WL 831588 *2
(10th Cir. Mar. 20, 2007). The Tenth Circuit also noted that much of
the confusing detail in the Complaint was an effort by Plaintiff to
explain his failure to exhaust and that the action should be remanded
to this Court to allow Mr. Young another opportunity to comply with
the Federal Rules of Civil Procedure. Id.

Nothing Mr. Young asserts in the Preliminary Injunction
indicates that he is unable to submit to this Court an Amended
Complaint, on a Court-approved form, that sets forth all of his claims
in a concise and simple manner in accordance with Rule 8 of the
Federal Rules of Civil Procedure. Even though Plaintiff complains

2
On July 12, 2007, the district court received a letter from Mr. Young
requesting that it send him: (1) “Twenty USM-285 forms”; and (2) “Twenty
waiver of service forms.” Case No. 06-cv-1253, Doc. 84. It is not clear from the
record whether the district court ever responded to this request. In any event, we
note that Mr. Young has not referred to this request to support any of his
appellate arguments challenging the propriety of Judge Weinshienk’s dismissal
order in the first action.

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 that he does not have access to part of his legal materials including
notes, grievances, response, dates, and case law, none of these items
would prevent him from naming defendants who violated his
constitutional rights and asserting his claims in a short and concise
manner on a prisoner complaint form.

Id., Doc. 85 at 2-3. 3 Mr. Young subsequently appealed Judge Weinshienk’s

dismissal order to this court, which was docketed as Appeal No. 07-1314.

B. Appeal No. 07-1333 (Case No. 07-cv-857).

Mr. Young originally filed Case No. 07-cv-857 (the second action) in the

District of Columbia in February 2007. Because venue was not proper in that

district, the case was transferred to the District of Colorado in April 2007.

Following the transfer, Judge Weinshienk was assigned to preside over the second

action.

In his complaint, Mr. Young asserted claims against eight individual

defendants, the United States Department of Justice, and the Bureau of Prisons.

Mr. Young also named Judge Weinshienk and Magistrate Judge Boyd N. Boland as

defendants. 4 As in the first action, Mr. Young alleged that defendants were

retaliating against him for exercising his constitutional rights and denying him

3
Judge Weinshienk also stated that Mr. Young filed his Preliminary
Injunction pleading in order to circumvent orders that she had entered in Case
No. 07-cv-857. Case No. 06-cv-1253, Doc. 85 at 4. While this may be an
accurate observation, the other reasons put forth by Judge Weinshienk fully
support her dismissal order. We therefore do not need to rely on any purported
motives behind Mr. Young’s filings.
4
Magistrate Judge Boland subsequently recused himself from the case.

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access to the courts, and he specifically alleged that “Judge Weinshienk and

Magistrate Boland denied [him] access to the court in the furtherance of a

conspiracy by submitting documents containing misrepresentations of material

fact, failure to serve process, and failure to interpret the Preliminary Injunction

motions liberally.” 5 Case No. 07-cv-857, Doc. 1, Complaint at 9. He further

alleged that “Judge Weinshienk and Magistrate Boland’s practice of automatically

demanding that a prisoner complaint be amended is unconstitutional because this

custom is designed to disadvantage the prisoner plaintiff.” Id. at 10.

The District of Colorado has a specific local rule that governs pleadings

filed in civil actions by prisoners. The rule provides that: (1) “[a] pro se prisoner

shall use the forms established by this court to file an action”; and (2) “[a] judicial

officer designated by the Chief Judge shall review the pleadings of a prisoner

(regardless of representation by counsel) to determine whether the pleadings

should be dismissed summarily.” D.C. Colo. L. Civ. R. 8.2(A) and (C). In

accordance with this local rule, a magistrate judge reviewed the complaint in the

second action, and, on May 7, 2007, he entered an “Order Directing Plaintiff to

Cure Deficiencies” in which he determined that Mr. Young’s complaint was

5
As noted above, Mr. Young filed a pleading entitled “Preliminary
Injunction” in the first action in June 2007 – over five months after he filed his
complaint in the second action. As a result, Mr. Young’s allegation in the second
action regarding “Preliminary Injunction motions” is apparently directed at a
motion for preliminary injunction, and supplements thereto, that he filed in the
first action in August and September 2006.

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deficient because it was “not on proper form (must use the Court’s current form).”

Case No. 07-cv-857, Doc. 5 at 2. The magistrate judge ordered: (1) “that Plaintiff

cure the deficienc[y] . . . within thirty days from the date of this Order”; and

(2) “that if the Plaintiff fails to cure the designated deficienc[y] within thirty

days from the date of this Order the Complaint and the action will be dismissed

without further notice.” Id. at 3. The magistrate judge also ordered the Clerk of

the Court to mail to Mr. Young two copies of the district court’s “Prisoner

Complaint” form. Id. On the certificate of mailing attached to the magistrate

judge’s order, a Deputy Clerk of the district court certified that he/she (the name is

illegible) mailed two copies of the Prisoner Complaint form to Mr. Young on

May 7, 2007. Id. at 4.

Instead of filing an amended complaint on the Prisoner Complaint forms

that had been furnished to him by the district court, on May 31, 2007, Mr. Young

submitted a pleading to the district court entitled “‘Order to Cure’ Objections.”

Id., Doc. 6. In his objections to the magistrate judge’s order, Mr. Young argued

that the transfer of his case from the District of Columbia was improper. He also

objected to having to file an amended complaint on the District of Colorado’s

Prisoner Complaint form, arguing that “[t]he local Rules of this district do not

apply to the filing of a complaint that has already been filed [in another district

court].” Id. at 1. Mr. Young further argued that “D.C. Colo. L. Civ. R. #8.2 and

the requirement of multiple copies (‘Prisoner Complaint Packet’ instructions

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at p. 2, pp. 2) is in violation of the F. R. Civ. P. #83 and 28 U.S.C. § 1915(d)[.]” 6

Id. at 2. In addition, Mr. Young stated that his prison “photocopying privileges

were taken away in retaliation for two [prison] grievances . . . that [he] filed and

the Order to Cure does not acknowledge that fact or give an alternative means with

which to comply [with the multiple-copies requirement].” Id. at 3.

On June 21, 2007, Judge Weinshienk entered an order overruling

Mr. Young’s objections to the transfer of his case and to the requirement in the

magistrate judge’s May 7, 2007, order that he file an amended complaint on the

District of Colorado’s Prisoner Complaint form. Id., Doc. 9 at 2-3. Judge

Weinshienk also ordered Mr. Young to do the following:

Plaintiff is instructed to comply with the May 7, 2007, Order or the
Complaint and action will be dismissed for failure to cure the
deficiencies. The only filings Plaintiff is to submit to the Court at
this time are the completed Court-approved forms sent to Plaintiff
with the May 7, 2007, Order if he desires to proceed with the instant
action in this Court. Accordingly, it is

....

6
The “Prisoner Complaint Packet” that Mr. Young refers to is not in the
record before this court. We take judicial notice, however, that the District of
Colorado’s general guidelines for filing a civil suit direct plaintiffs who are
proceeding in forma pauperis under 28 U.S.C. § 1915 and who want the court to
direct the United States Marshals Service to serve process to file one copy of the
complaint for each defendant named in the complaint. We will therefore assume
that Mr. Young was in fact instructed by the Clerk or a Deputy Clerk of the
district court to file a copy of the Prisoner Complaint form for each defendant
named in the second action.

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 . . . ORDERED that Plaintiff has ten days from the date of
this Order to comply with the May 7, 2007, Order. It is

FURTHER ORDERED that if Plaintiff fails to comply with the
May 7, 2007, Order as directed, within the time allowed, the
Complaint and action will be dismissed without further notice.

Id.

Instead of complying with the May 7, 2007, order within ten days as

specifically directed by Judge Weinshienk, on June 29, 2007, Mr. Young

submitted a pleading to the district court entitled “Unconstitutionality of the

‘Order Overruling Objections.’” Id., Doc. 11. In this pleading, Mr. Young argued

that “[t]he local rule, D.C. Colo. L. Civ. R. #8.2 requiring the proper form and the

directions attached to the form requiring multiple copies of the complaint is in

direct conflict with F. R. Civ. P. #83, 28 U.S.C. § 2071, § 2072, and § 1915(d),

which makes it unconstitutional.” Id. at 2. Once again, Mr. Young also alleged

that “Defendants cut off [his] access to [prison] photocopying privileges.”

Id. at 2-3. For the first time, Mr. Young also complained that, because Judge

Weinshienk was a named defendant in the second action, 28 U.S.C. § 455 required

her to recuse herself from the case. Id. at 4-5.

On July 20, 2007, Judge Weinshienk entered an order striking Mr. Young’s

June 29, 2007, filing, stating as follows:

The Court instructed Plaintiff, in the June 21, 2007, Order that
at this time the only proper filings for him to submit to the Court are
the Court-approved forms, which were sent to him with the May 7,
2007, Order. The forms were sent to Plaintiff so that he may

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 complete them and file them with the Court. Therefore, the Court
will direct the Clerk of the Court to strike the June 29, 2007, filing.
Mr. Young is warned that if he continues to inundate the Court with
unnecessary filings the Complaint and action will be dismissed
pursuant to 28 U.S. § 1915(e)(2)(B)(i).

Id., Doc. 12 at 1-2.

Mr. Young subsequently failed to file an amended complaint on the

court-approved form. As a result, after reciting the course of events in the case

and taking notice of the findings that she had previously made in dismissing the

first action, Judge Weinshienk dismissed the second action without prejudice on

August 2, 2007. Id., Doc. 13 at 2. In dismissing the case, Judge Weinshienk also

found “no basis for recusal in the instant action.” Id. Mr. Young subsequently

appealed Judge Weinshienk’s dismissal order to this court, which was docketed as

Appeal No. 07-1333.

II. ANALYSIS

A. Rulings Applicable to Both Actions.

“Although we construe [Mr. Young’s] pleadings liberally because he is a

pro se litigant, he nevertheless must follow the same [local district court] rules of

procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915, 917

(10th Cir. 1992); see also AdvantEdge Bus. Group, L.L.C. v. Thomas E. Mestmaker

& Assocs., 552 F.3d 1233, 1236 (10th Cir. 2009) (“A district court undoubtably

has discretion to sanction a party for failing . . . to comply with local . . .

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procedural rules.”) (internal quotation marks omitted). Thus, Judge Weinshienk

acted properly in requiring Mr. Young to file an amended complaint on the

court-approved Prisoner Complaint form required by D.C. Colo. L. Civ. R. 8.2(A).

Further, Fed. R. Civ. P. 83(a)(2) allows local district court rules imposing form

requirements to be enforced unless the failure to comply is “nonwillful.” As set

forth above, Mr. Young’s repeated refusals to comply with Judge Weinshienk’s

orders directing him to file amended complaints on the court-approved Prisoner

Complaint form and to file no other pleadings were blatantly willful, and we reject

his constitutional and other challenges to the District of Colorado’s local rule

requiring use of the form by all prisoner litigants.

We also reject Mr. Young’s weak excuse that he could not comply with

Judge Weinshienk’s orders because his prison photocopying privileges had been

revoked. Simply put, while the Clerk or a Deputy Clerk of the district court may

have forwarded instructions to Mr. Young directing him to file a copy of the

Prisoner Complaint form for each named defendant, Judge Weinshienk’s orders

only directed him to file the forms that had been directly provided to him by the

court, and this was clearly and repeatedly specified in her orders. Moreover, if

Mr. Young had submitted the form amended complaints that he was ordered to

file, it would have been a simple matter for him to include a brief explanation as to

why he was unable to submit multiple copies of the amended complaints. Instead,

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however, Mr. Young chose to ignore Judge Weinshienk’s direct orders, and, as set

forth below, we will not tolerate his obstructive behavior.

B. Fed. R. Civ. P. 41(b).

Rule 41(b) authorizes a district court, upon a defendant’s motion, to order

the dismissal of an action for failure to prosecute or for failure to comply with the

Federal Rules of Civil Procedure or “a court order.” Fed. R. Civ. P. 41(b). This

rule has been interpreted as permitting district courts to dismiss actions sua sponte

when one of these conditions is met. Link v. Wabash R.R. Co., 370 U.S. 626,

630-31 (1962); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003).

Although not expressly stated by Judge Weinshienk in her dismissal orders,

we will presume that she dismissed Mr. Young’s actions without prejudice

pursuant to Rule 41(b). “We review dismissals under Rule 41(b) for abuse of

discretion.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161

(10th Cir. 2007). “An abuse of discretion occurs when a district court makes a

clear error of judgment or exceeds the bounds of permissible choice in the

circumstances. This occurs when a district court relies upon an erroneous

conclusion of law or upon clearly erroneous facts.” Ecclesiastes 9:10-11-12, Inc.

v. LMC Holding Co., 497 F.3d 1135, 1143 (10th Cir. 2007) (citation, brackets, and

internal quotation marks omitted). In addition, it is well established in this circuit

that a district court is not obligated to follow any particular procedures when

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dismissing an action without prejudice under Rule 41(b). 7 AdvantEdge Bus.

Group, 552 F.3d at 1236; Ecclesiastes, 497 F.3d at 1143-44 n.10; Nasious,

492 F.3d at 1162.

C. First Action (Case No. 06-cv-1253).

We see no abuse of discretion by Judge Weinshienk in dismissing the first

action without prejudice. As set forth above, in Mr. Young’s prior appeal in that

action, we specifically cautioned him that “continued obstructive conduct, such as

filing repetitive and frivolous motions, will forfeit his opportunity to file an

amended complaint,” and that “[h]e would be wise to file no further pleading

except a proper amended complaint.” Young, 2007 WL 831588, at *2. On

remand, Judge Weinshienk then reiterated this admonishment in her “Order

7
This is significant because it means that a district court does not need to
consider the non-exhaustive list of factors that it ordinarily must consider in
determining whether to dismiss an action with prejudice under Rule 41(b). See
Ecclesiastes, 497 F.3d at 1143-44 (setting forth five factors to consider when
dismissing action with prejudice) (citing Ehrenhaus v. Reynolds, 965 F.2d 916,
921 (10th Cir. 1992)). “Only a dismissal with prejudice triggers the Ehrenhaus
criteria because it is a significantly harsher remedy-the death penalty of pleading
punishments.” Id. at 1143-44 n.10 (internal quotation marks omitted). Of course,
a dismissal without prejudice may, in effect, constitute a dismissal with prejudice
if the applicable statute of limitations would bar relief if the plaintiff refiled his
or her claims. We have therefore indicated that the Ehrenhaus criteria may need
to be considered in that circumstance. See AdvantEdge Bus. Group, 552 F.3d at
1236. We do not need to consider the possible running of any of the applicable
statute of limitations in either of Mr. Young’s actions, however, because he has
failed to raise the issue in either of these consolidated appeals. Id. (holding that
plaintiff waived argument that a dismissal without prejudice had practical effect
of a dismissal with prejudice where plaintiff “failed to sufficiently address on
appeal the possible running of a statute of limitations”).

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Reinstating Case.” See Case No. 06-cv-1253, Doc. 80 at 2 (“Mr. Young also is

cautioned that if he files any repetitive or frivolous motions he will forfeit his

opportunity to file an Amended Complaint.”).

Despite these clear and unequivocal warnings, instead of filing an amended

complaint on the Prisoner Complaint forms that had been furnished to him by a

Deputy Clerk of the district court, Mr. Young submitted a pleading to the district

court entitled “Preliminary Injunction.” Id., Doc. 82. We agree with Judge

Weinshienk that Mr. Young forfeited his right to proceed any further in the first

action when he filed the Preliminary Injunction pleading. As succinctly explained

by Judge Weinshienk in her dismissal order, “[n]othing Mr. Young asserts in the

Preliminary Injunction indicates that he is unable to submit to this Court an

Amended Complaint, on a Court-approved form, that sets forth all of his claims in

a concise and simple manner in accordance with Rule 8 of the Federal Rules of

Civil Procedure.” Id., Doc. 85 at 3. Accordingly, we have no difficulty affirming

the without-prejudice dismissal of the first action.

D. Second Action (Case No. 07-cv-857).

The second action presents the threshold question of whether Judge

Weinshienk should have recused herself from the case because she was a named

defendant. Under 28 U.S.C. § 455(b)(5)(i), a judge must recuse herself when she

is a party to the proceeding, and this mandatory provision required Judge

Weinshienk to recuse herself from the second action.

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 This does not end our inquiry, however, because, in accordance with our

decision in Harris v. Champion, 15 F.3d 1538, 1571 (10th Cir. 1994), we are

permitted to apply a harmless error analysis to Judge Weinshienk’s violation of

§ 455(b)(5)(i). In deciding whether a violation of § 455 is harmless error, we must

consider “‘the risk of injustice to the parties in the particular case, the risk that the

denial of relief will produce injustice in other cases, and the risk of undermining

the public’s confidence in the judicial process.’” Id. at 1571-72 (quoting Liljeberg

v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988)). Applying these

factors, we conclude that Judge Weinshienk’s failure to recuse herself from the

second action was harmless error.

First, given Mr. Young’s blatant disregard of two separate orders from

Judge Weinshienk directing him to file an amended complaint on the

court-approved Prisoner Complaint form, he is hardly in a position to complain

about any injustice to himself, as the adverse consequences that he suffered were

entirely self-inflicted and could easily have been avoided. Second, there is no risk

of injustice to any of the named defendants in the second action or to parties in

any other cases. Third, while we urge Judge Weinshienk to follow the plain

command in § 455(b)(5)(i) and recuse herself from any future cases in which she

is named as a party, in light of the lack of regard shown by Mr. Young for the

integrity of the district court, Judge Weinshienk’s failure to recuse herself from

the second action raises only a very minimal risk of undermining the public’s

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confidence in the judiciary. Moreover, we do not believe this slight risk

necessitates the time and expense of a remand for yet another round of district

court proceedings in this already-protracted litigation. We are also confident that

a remand would simply result in another judge reaching the same result as Judge

Weinshienk. Accordingly, we conclude that a remand is not necessary to remedy

Judge Weinshienk’s violation of § 455(b)(5)(i).

With the recusal question answered, we easily determine that Judge

Weinshienk did not abuse her discretion in dismissing the second action without

prejudice. As set forth above, Judge Weinshienk entered two separate orders

directing Mr. Young to file an amended complaint on the court-approved Prisoner

Complaint forms that a Deputy Clerk of the district court had sent to him, and

Mr. Young failed to comply with either order even though he was specifically

warned by Judge Weinshienk that his case would be dismissed if he failed to

comply. Moreover, Mr. Young has utterly failed to assert any valid reason to

excuse his failures to comply with Judge Weinshienk’s unequivocal orders.

CONCLUSION

In Appeal No. 07-1314, we AFFIRM the dismissal without prejudice of

Mr. Young’s complaint in Case No. 06-cv-1253. In Appeal No. 07-1333, we

AFFIRM the dismissal without prejudice of Mr. Young’s complaint in Case

No. 07-cv-857. We DENY the motions for emergency relief that Mr. Young filed

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in this court on January 27, 2009, and February 24, 2009, respectively. 8 The

motions either raise new matters that are not properly part of these appeals or

matters that are part and parcel of the cases that Judge Weinshienk dismissed

without prejudice. We have also determined that Mr. Young’s allegations to the

effect that he is in imminent danger of physical harm are wholly conclusory and

are insufficient to support any claim for relief, either emergency or otherwise.

We also DENY all other pending motions and requests for relief in both of these

appeals. We GRANT Mr. Young’s motions to proceed in Appeal No. 07-1314 and

Appeal No. 07-1333 without prepayment of the appellate filing fees. We remind

Mr. Young, however, of his continuing obligation to make partial payments until

he has paid the entire appellate filing fee for each appeal.

Entered for the Court

David M. Ebel
Circuit Judge

8
On March 5, 2009, Mr. Young filed an affidavit in support of his second
motion for emergency relief, and we have reviewed the affidavit in connection
with our denial of that motion.

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