Walker v. Cuomo

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CARLTON WALKER,

Plaintiff,

v. 9:20-CV-0082

(DNH/CFH)

SENECAL, Officer; Bare Hill

Correctional Facility, and BRIAN

BENWARE, Officer; Bare Hill

Correctional Facility,

Defendants.

APPEARANCES:

CARLTON WALKER

85-A-1559

Plaintiff, pro se

Franklin Correctional Facility

P.O. Box 10

Malone, NY 12953

HON. LETITIA JAMES MARK G. MITCHELL, ESQ.

New York State Attorney General - Albany Asst. Attorney General

The Capitol

Albany, NY 12224

Attorney for Defendants

DAVID N. HURD

United States District Judge

DECISION and ORDER

I. INTRODUCTION

Pro se plaintiff Carlton Walker commenced this action by filing a civil rights complaint

pursuant to 42 U.S.C. § 1983, together with an application to proceed in forma pauperis

("IFP"). Dkt. No. 1 ("Compl."); Dkt. No. 2 ("IFP Application"). Thereafter, plaintiff paid the

$400.00 filing fee in full.

By Decision and Order dated March 31, 2020, the Court denied plaintiff's IFP

Application pursuant to 28 U.S.C. § 1915(g), and, upon review of the complaint pursuant to

28 U.S.C. § 1915A(b), severed and transferred plaintiff's claims arising out of his

confinement at Woodbourne Correctional Facility to the Southern District of New York,

dismissed some of plaintiff's remaining claims and defendants, found that plaintiff's retaliation

claims against two defendants survived sua sponte review, and advised plaintiff to submit a

motion requesting service by a U.S. Marshal, along with full payment of the service fee and

all necessary papers for service if he desired for a U.S. Marshal to effect service on the

remaining defendants. Dkt. No. 6 ("March 2020 Order").

Thereafter, plaintiff filed a motion for partial reconsideration of the March 2020 Order

and a letter request for a U.S. Marshal to effect service on defendants. Dkt. No. 8 ("Motion

for Reconsideration"); Dkt. No. 9 ("Letter Request for Service").1 By Decision and Order

dated May 18, 2020, the Court, among other things, denied plaintiff's Motion for

Reconsideration. Dkt. No. 12 ("May 2020 Order"). Days later, plaintiff moved for leave to

appeal the March 2020 Order in forma pauperis. Dkt. No. 13.

By Decision and Order dated June 12, 2020, the Court, among other things, denied

plaintiff's request to proceed with his appeal of the March 2020 Order in forma pauperis, and

denied plaintiff's Letter Request for Service without prejudice. Dkt. No. 18 ("June 2020

Order"). In denying plaintiff's request to proceed with his appeal of the March 2020 Order in

forma pauperis, the Court found that the appeal of the March 2020 Order was not taken in

1 Before plaintiff's Motion for Reconsideration was decided, plaintiff filed a notice of interlocutory appeal

of the March 2020 Order. Dkt. No. 10.

2

good faith, and that the complaint did not adequately allege that plaintiff was under imminent

danger of serious physical injury at the time it was filed. See June 2020 Order at 3.

Plaintiff filed a motion for reconsideration of the June 2020 Order insofar as it denied

his request to proceed with his appeal of the March 2020 Order in forma pauperis. See Dkt.

No. 21 ("Motion for Reconsideration of the June 2020 Order"). By Decision and Order

entered on July 30, 2020, the Court, among other things, denied plaintiff's Motion for

Reconsideration of the June 2020 Order. Dkt. No. 28 ("July 2020 Order"). Plaintiff then filed

a notice of appeal of the July 2020 Order, along with a motion for leave to appeal in forma

pauperis. Dkt. No. 29; Dkt. No. 30.

By Order entered on August 19, 2020, the Court denied plaintiff's Motion for Leave to

Appeal the July 2020 Order in forma pauperis. Dkt. No. 31. Thereafter, counsel filed a

motion to dismiss the claims remaining in this action, and plaintiff filed a response in

opposition. Dkt. No. 32 ("Motion to Dismiss"); Dkt. No. 34 ("Opposition to Motion to

Dismiss").

Presently before the Court is plantiff's motion for recusal. Dkt. No. 35 ("Motion for

Recusal").2

II. MOTION FOR RECUSAL

Plaintiff states that recusal is warranted "due to the pervasive bias and fraud against

the plaintiff[.]" See Motion for Recusal at 1. Plaintiff further states in his affidavit in support

of his motion that the undersigned's "impartiality might be reasonably questioned" in light of

rulings in this case, which amount to "fraud." Id. at 3, 13.

A federal judge must disqualify himself in any proceeding where "his impartiality might

2 The Motion to Dismiss will be decided separately, and in due course.

3

reasonably be questioned", "he has a personal bias or prejudice concerning a party, or

personal knowledge of disputed evidentiary facts concerning the proceeding . . . ." 28 U.S.C.

§ 455(a) and (b)(1);3 see also 28 U.S.C. § 144 ("Whenever a party to any proceeding in a

district court makes and files a timely and sufficient affidavit that the judge before whom the

matter is pending has a personal bias or prejudice either against him or in favor of any

adverse party, such judge shall proceed no further therein, but another judge shall be

assigned to hear such proceeding.").

In cases where a judge's impartiality might reasonably be questioned, the issue for

consideration is not whether the judge is in fact subjectively impartial, but whether the

objective facts suggest impartiality. See Liteky v. United States, 510 U.S. 540, 548

(1994). The ultimate inquiry is whether "a reasonable person, knowing all the facts, [would]

conclude that the trial judge's impartiality could reasonably be questioned." Hughes v. City of

Albany, 33 F. Supp. 2d 152, 153 (N.D.N.Y. 1999).

"[T]he grounds asserted in a recusal motion must be scrutinized with care, and judges

should not recuse themselves solely because a party claims an appearance of partiality." In

re Aguinda, 241 F.3d 194, 201 (2d Cir. 2001) (noting that, "where the standards governing

disqualification have not been met, disqualification is not optional; rather, it is prohibited").

The requirement that a judge recuse himself whenever his "impartiality might

reasonably be questioned" is commonly limited to those circumstances in which the alleged

partiality "stem[s] from an extrajudicial source." Liteky, 510 U.S. at 544 (quoting United

States v. Grinnell Corp., 384 U.S. 563, 583 (1966)); United States v. Morris, 988 F.2d 1335,

3 There are other reasons for disqualification not relevant to the present motion. See 28 U.S.C. §

455(b)(2)-(5).

4

1337 (4th Cir. 1993) ("[T]he source of the appearance of partiality must arise from some

source other than the judge's previous involvement with cases that concerned the parties or

witnesses in the present case." (collecting cases)); Stantini v. United States, 268 F. Supp. 2d

168, 179 (E.D.N.Y. 2003) ("It is well settled that a motion for recusal requires a showing of

personal bias which is ordinarily based on extra-judicial conduct and not conduct which

arises in a judicial context.").

In this case, the alleged partiality does not stem from an extrajudicial source. Rather,

plaintiff's Motion for Recusal is based entirely on rulings issued in this case. See generally,

Motion for Recusal. Plaintiff disagrees with those rulings. But plaintiff's expressed

disagreement with the Court's prior rulings, unaccompanied by any allegations or evidence of

statements or actions exhibiting bias, does not provide a basis for recusal. See, e.g.,

Gottlieb v. U.S. Sec. & Exch. Comm'n, 723 Fed. App'x 17, 19-20 (2d Cir. 2018) ("Other than

dismissal of this case, Gottlieb does not suggest that Judge Preska made any statements or

took any actions exhibiting bias; and the dismissal (as explained above) was clearly within

Judge Preska's discretion."); Chen v. Chen Qualified Settlement Fund, 552 F.3d 218, 227 (2d

Cir. 2009) ("[A]dverse rulings, without more, will rarely suffice to provide a reasonable basis

for questioning a judge's impartiality."); Moskovits v. Moskovits, 150 Fed. App'x 101, 102 (2d

Cir. 2005) ("Plaintiffs have failed to show a basis for recusal, as their allegations fail to

demonstrate any deep-seated favoritism or antagonism that would make fair judgment

impossible, . . . as opposed to disagreement with decisions made by Judge Daniels in his

judicial role." (internal quotation marks and citations omitted)); Gottlieb v. S.E.C., No.

05-CV-2401, 2007 WL 646382, at *2-3 (S.D.N.Y. Feb. 27, 2007) ("Plaintiff does not allege

the Court's bias to stem from anything other than the Court's participation in his case. Thus,

5

he fails to establish grounds for the Court's recusal. Accordingly, his motion for recusal is

denied."), aff'd, 310 Fed. App’x 424 (2d Cir. 2009); Hoatson v. New York Archdiocese, No.

05-CV-10467, 2006 WL 3500633, at *2 (S.D.N.Y. Dec. 1, 2006) ("[R]ulings made during the

course of a case are generally not regarded as evidence of bias, even if they appear to

disproportionately favor one side."); Locasio v. United States, 372 F. Supp. 2d 304, 315

(E.D.N.Y. 2005) (same). Insofar as plaintiff believes that the Court erred in one or more of its

prior rulings, he may appeal these rulings at the conclusion of this proceeding, which he has

already been advised by the Second Circuit. See Dkt. No. 36.

In short, plaintiff has presented no grounds that require the undersigned's recusal.

Accordingly, plaintiffs Motion for Recusal is denied.

lll. CONCLUSION

Therefore, it is

ORDERED that

1. Plaintiff's motion for recusal (Dkt. No. 35) is DENIED; and

2. The Clerk shall serve a copy of this Decision and Order on the parties.

IT IS SO ORDERED.

Dated: December 11, 2020 C/O) Lif,

Utica, New York. SL _/ Pheer

United Sfates Jorge