UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ZACHARY RUSK, Plaintiff - Appellant,

v. TIMOTHY TYMKOVICH, Defendant - Appellee. No. 17-4193 (D.C. No. 1:17- CV-00156-TS) (D. Utah)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BALDOCK , and HOLMES , Circuit Judges.

________________ _________________ Plaintiff-Appellant Zachary Rusk—appearing pro se —appeals the district court’s dismissal of his complaint agains t the Honorable Timothy Tymkovich, the Chief Judge of this Circuit. We exerci se jurisdiction under 28 U.S.C. § 1291 and affirm. I In July 2017, Chief Judge Tymkovich en tered an order and judgment on behalf of a unanimous panel of this court, affirmi ng the district court’s dismissal of Rusk’s

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 14, 2018 Elisabeth A. Shumaker Clerk of Court2 pro se complaint against the Honorable Paul Warner, the Chief Magistrate Judge of the United States District Cour t 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 certi orari 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 perv asively retaliated against” him, Aplt. Br. at 1, and pursues theories of abus e 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 su it 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 ear lier declined to take disciplinary action agai nst Judge Warner. See ROA, Vol. I at 17, 24.3 § 455(a), federal judges mu st disqualify themselves fr om any proceeding in which their impartiality might reas onably be questioned. “How ever, the statutory guidance for recusal must also be read in light of the judges’ ‘dut y 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 broadl y 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 (10t h Cir.1993). Further, under the “rule of necessity,” a judge is qua lified 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 ra ises in this appeal, we begin by concluding that the district court had jurisdicti on over Rusk’s complaint. Th e opening section of Rusk’s
pro se complaint—labeled “JURISDICTIONAL BASIS”—cited 42 U.S.C. § 1983 and alleged “violations of certain protecti ons guaranteed to [Rusk] by the First and Fourteenth Amendments of the federal C onstitution.” ROA, Vol. I at 4. We conclude, given Chief Judge Tym kovich’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 hear4 cases that arise under the Cons titution,” afforded the distri ct court with jurisdiction over Rusk’s complaint. Carlson v. Green , 446 U.S. 14, 39 (1980). Also, we are persuaded that Chief J udge Tymkovich is absolutely immune from all suits based on his conduct in his offi cial capacity as a judge of this court. See Mireles , 502 U.S. 9–10 (“[I]t is a general pr inciple of the highest importance to the proper administration of justice that a j udicial officer, in exercising the authority vested in him, shall be free to act upon hi s 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-j udicial conduct, Chief Judge Tymkovich is absolutely imm une 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