# Walker v. Cuomo

> District Court, N.D. New York · December 11, 2020

URL: https://www.frixlaw.com/law-library/cases/10313433

## Case

- **Court:** District Court, N.D. New York
- **Decided:** December 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313433. Public record. Not legal advice.