Parham v. Community College

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 3 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
EUGENIA PARHAM,
Plaintiff-Appellant,
v. No. 99-1496
(D.C. No. 99-M-1594)
COMMUNITY COLLEGE OF (D. Colo.)
AURORA, Staff and employees of the
Humanities and Fine Arts Division and
the Business and Professional Studies
Division; NEVA GRONERT,
Department Chair; MICHELE AMON,
Department Chair; SUE WALDHEIM,
Administrative Assistant; RON ROSS,
Personnel Director; RICHARD
TUBBS, Resigned; TOM BROSH,
Dean; LES MOROYE, Dean; CHRIS
PADILLA,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, HENRY, and LUCERO, Circuit Judges.
*
This order and judgment is not binding precedent, except under the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.
Eugenia Parham, proceeding pro se, appeals from the magistrate judge’s
order denying her motion for recusal in her underlying discrimination suit, and
seeks an emergency stay pending appeal of the district court’s scheduling
conference, set for November 5, 1999. Although we construe appellant’s pro se
pleadings liberally, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), this court
has a duty to examine its own jurisdiction in the first instance. See Maier v.
United States Envtl. Protection Agency, 114 F.3d 1032, 1036 (10th Cir. 1997).
Because we conclude that the magistrate judge’s denial of appellant’s recusal
motion is not a final, appealable order, we must dismiss this appeal for lack of
jurisdiction.
The denial of appellant’s recusal motion is not final for at least two
reasons. First, a magistrate judge’s orders are not directly appealable to the court
of appeals, absent consent of the parties. See Niehaus v. Kansas Bar Ass’n,
793 F.2d 1159, 1164-65 (10th Cir. 1986). Second, because denials of motions to
recuse may be challenged by petition for a writ of mandamus, see Lopez v. Behles
(In re American Ready Mix, Inc.), 14 F.3d 1497, 1499 (10th Cir. 1994), they are
not appealable. See Weston v. Mann (In re Weston), 18 F.3d 860, 864 (10th Cir.
1994) (mandamus is not a substitute for appeal). Accordingly, this appeal is
dismissed for lack of jurisdiction, and appellant’s motion for stay is dismissed as
moot. See Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755, 756-57
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(10th Cir. 1993) (appellate jurisdiction is a prerequisite for consideration of a stay
pending appeal).
In the alternative, we may construe appellant’s notice of appeal as a
petition for a writ of mandamus. See Boughton v. Cotter Corp., 10 F.3d 746, 750-
51 (10th Cir. 1993). After consideration of appellant’s request for relief from the
district court ’s upcoming scheduling conference, we deny the petition for
mandamus. Appellant has not demonstrated that the district court has either
exceeded its jurisdiction or abused its discretion in denying the motion for
recusal. See Pacificare of Okla., Inc. v. Burrage, 59 F.3d 151, 153 (10th Cir.
1995).
This appeal is DISMISSED. The emergency motion for stay is
DISMISSED AS MOOT. The petition for mandamus is DENIED.
ENTERED FOR THE COURT
PER CURIAM
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