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 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 14, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

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. 
3 

§ 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 
4 

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