United States District Court, D. Nebraska
M. Gerrard United States District Judge.
matter is before the Court on the petitioner's motion
(filing 64) to recuse presiding Senior District Judge Richard
G. Kopf, on grounds of alleged bias or prejudice.
See28 U.S.C. § 144; see also28 U.S.C.
§ 455. The motion has been referred to the undersigned
for disposition. See Akins v. Knight, 863
F.3d 1084, 1086 (8th Cir. 2017), cert. denied, 138
S.Ct. 992 (2018).
petitioner's motion will be denied for three reasons.
First, it is untimely. A motion for recusal must be made at
the earliest possible moment after obtaining knowledge of
facts demonstrating the basis for such a claim. In re
Steward, 828 F.3d 672, 682 (8th Cir. 2016); see
Oglala Sioux Tribe of Pine Ridge Indian Reservation
v. Homestake Min. Co., 722 F.2d 1407, 1414 (8th Cir.
1983). But the underlying factual allegations that form the
basis of the petitioner's motion here-that is, the
incidents that he claims show bias or prejudice-took place
between March and September 2018. Filing 64 at 9. The
petitioner, aware of those facts, did not seek recusal until
now. Accordingly, he waived recusal on those grounds by
failing to raise them when he became aware of them.
on the merits, a legally sufficient affidavit must allege
bias or prejudice, and such bias or prejudice must
stem from an extrajudicial source. United States v.
Faul, 748 F.2d 1204, 1211 (8th Cir. 1984). That is,
"bias or prejudice" does not include opinions held
by judges acquired in the course of the proceedings, nor does
it include opinions held as a result of what judges learned
in earlier proceedings. Liteky v. United States, 510
U.S. 540, 551 (1994). A party is not entitled to recusal even
when a judge is exceedingly ill-disposed toward him, where
the judge's knowledge and the opinion it produced were
properly and necessarily acquired in the course of the
proceedings. In re Steward, 828 F.3d at 682; see
United States v. Rubashkin, 655 F.3d 849, 858 (8th Cir.
2011). And judicial rulings rarely establish a valid basis
for recusal. United States v. Melton, 738 F.3d 903,
906 (8th Cir. 2013). Here, the petitioner's accusations
are premised entirely on unfavorable rulings in previous
litigation, which are neither extrajudicial, nor indicative
of bias. See United States v. Larsen, 427 F.3d 1091,
1095 (8th Cir. 2005); see also United States v.
Martin, 757 F.3d 776, 778 (8th Cir. 2014).
a motion to change judges is properly denied when it is
essentially a judge-shopping attempt: the federal recusal
statutes do not provide a vehicle for parties to shop among
judges. United States v. Williams, 624 F.3d 889, 894
(8th Cir. 2010). To the extent that the petitioner is
attempting to manufacture a supposed conflict of interest by
separately pursuing legal action against Judge Kopf, it will
not avail him-a party cannot be allowed to create a basis for
recusal by his own deliberate actions. See
Akins, 863 F.3d at 1087; cf. United
States v. Beale, 574 F.3d 512, 519-20 (8th Cir. 2009);
United States v. Gamboa, 439 F.3d 796, 817 (8th Cir.
petitioner's motion for expedited ruling (filing 65) is
petitioner's motion to recuse (filing 64) is denied.
 The Court has considered the effect of
the petitioner's putative interlocutory appeal. See
filing 58. But a district court is not divested of
jurisdiction if a party appeals a non-appealable order. State
ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d
1102, 1106 (8th Cir. 1999); see Waterson v. Hall,515 F.3d 852, 855 (8th Cir. 2008). And a district court
always retains jurisdiction over collateral matters, or
aspects of the case not involved in the appeal. See
FutureFuel Chem. Co. v. Lonza, Inc,756 F.3d 641, 648
(8th Cir. 2014). So, jurisdiction over at least some, if not
all, of ...