FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 14, 2018
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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.
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ORDER AND JUDGMENT*
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Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.
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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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
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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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