* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

MAY 27 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DONALD E. ARMSTRONG,

Plaintiff-Appellant,

v.

KENNETH A. RUSHTON, Trustee,

Defendant-Appellee.

No. 03-4039

(D.C. No. 2:02-CV-1394-TC)

(D. Utah)

ORDER AND JUDGMENT *

Before McCONNELL , ANDERSON , and BALDOCK , 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

On November 26, 2002, the district court enjoined plaintiff-appellant

Donald E. Armstrong from filing any further pleadings relating to the
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confirmation order in his Chapter 11 bankruptcy case pending this court’s

resolution of his appeal of that order. Armstrong did not appeal the November 26

order imposing the injunction.

On December 16, 2002, Armstrong filed a motion to proceed in forma

pauperis (ifp) in the district court with his appeal of two separate

bankruptcy-court orders. On January 3, 2003, he filed a motion to recuse the

Honorable Tena Campbell. The district court denied both motions, and this

appeal followed.

“The denial by a District Judge of a motion to proceed in forma pauperis is

an appealable order.” Roberts v. United States Dist. Ct. for the N. Dist. of Cal. ,

339 U.S. 844, 845 (1950). We review that denial for abuse of discretion. 

Cf. Denton v. Hernandez , 504 U.S. 25, 33 (1992) (reviewing dismissal under

28 U.S.C. § 1915(d)’s frivolousness standard).

The financial declaration attached to Armstrong’s motion to proceed

in forma pauperis shows that he earns $3000 per month and allocates $750 of

that amount for court costs. R. Vol. I, Doc. 6 at 4, 8. Under these circumstances,

the district court was well within its discretion to deny Armstrong ifp status.

With regard to the denial of the motion to recuse, we note that such an

order is interlocutory, not final, and not immediately appealable. Lopez v. Behles

(In re Am. Ready Mix, Inc. ), 14 F.3d 1497, 1499 (10th Cir. 1994). Instead,
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a petition for writ of mandamus is the appropriate means of seeking review of

a judge’s refusal to recuse. In re Bennett , 283 B.R. 308, 321 (B.A.P. 10th Cir.

2002). Because Armstrong is proceeding pro se, however, we will construe his

notice of appeal as a petition for writ of mandamus. See Boughton v. Cotter

Corp. , 10 F.3d 746, 750-51 (10th Cir. 1993).

While we generally review the refusal to recuse for abuse of discretion,

here the higher standard of review for mandamus petitions will govern. Nichols

v. Alley , 71 F.3d 347, 350 (10th Cir. 1995). Thus, Armstrong will have to

demonstrate a “clear and indisputable right to relief” based on the district court’s

“clear abuse of discretion” or “usurpation of judicial authority.” Id.

As noted above, rulings on motions to recuse are left to the discretion of

the district court. Id. Because of their discretionary nature, recusal matters will

rarely be the objects of mandamus relief. See Allied Chem. Corp. v. Daiflon, Inc.,

449 U.S. 33, 36 (1980). Here, Armstrong’s conclusory allegations of bias and the

fact that Judge Campbell has ruled against him a number of times is insufficient

to justify recusal, much less a writ of mandamus ordering recusal. See Liteky v.

United States, 510 U.S. 540, 555-56 (1994). Armstrong did not establish a clear

and indisputable right to mandamus relief.

To the extent Armstrong attempts in his opening brief to argue the propriety

of the litigation injunction, we remind him that he did not appeal from the order
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imposing the injunction and that it is too late now to do so. Any arguments

except those relating to the order denying ifp and the order denying the motion

to recuse are irrelevant to this appeal.

As we have noted in several other decisions issued this day, the fact that

the Bankruptcy Appellate Panel of this court has recently found that the

bankruptcy court lacked jurisdiction to enter criminal contempt sanctions against

Armstrong in a related matter has no bearing on this appeal. Armstrong’s May 7,

2003, motion for the court to obtain the record in bankruptcy case No. 00-26592,

or, in the alternative for the appellant to file an appendix, for extension of time

and/or for stay is DENIED. Armstrong’s motion to file a supplemental appendix,

filed September 2, 2003, is GRANTED. As construed, the petition for writ of

mandamus is DENIED. The order of the district court denying Armstrong ifp

status is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Bobby R. Baldock

Circuit Judge