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HALL v. DWORKIN

July 27, 1993

ROBERT L. HALL, Plaintiff,
v.
CARL G. DWORKIN, DAVID MATHIS, CHRISTOPHER ROSETTI, DONALD NICKLAS, JOSEPH SPINELLI, FELICE TRIFARO, DOMINICK DELLA ROCCO, JIM SIKORA, ROBERT WINN, DONALD M. PAXSON, PEPSI-COLA OF ALBANY BOTTLING CO., NIAGARA MOHAWK POWER CORP., TOWN OF COLONIE POLICE DEPARTMENT, NEW YORK STATE OFFICE OF INSPECTOR GENERAL, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and CENTRAL INTELLIGENCE AGENCY, Defendants.


McAVOY


The opinion of the court was delivered by: THOMAS J. MCAVOY

MEMORANDUM-DECISION and ORDER

 Plaintiff Robert Hall ("Hall"), appearing pro se, commenced the instant action on March 12, 1993 alleging racially motivated violations of his civil rights under 42 U.S.C. § 1983. Plaintiff has moved the court pursuant to 28 U.S.C. § 455 to disqualify this court and Magistrate Ralph W. Smith, Jr. on grounds of racial bias against plaintiff. All defendants, in turn, have moved for dismissal of plaintiff's complaint pursuant to either Rule 12(b)(1) or 12 (b)(6) of the Federal Rules of Civil Procedure.

 I. BACKGROUND and FACTS

 Hall initially alleges that on November 19, 1992 he was discharged by his former employer, the New York State Department of Environmental Conservation ("NYSDEC"), in retaliation for an October 5, 1992 letter he sent to the New York State Office of the Inspector General ("NYSOIG") which purportedly documented "criminal corruption" at the NYSDEC (Compl. PP 6-8). The nature of the alleged corruption is not detailed in the complaint and is, for all practical purposes, not material on this motion to dismiss.

 Plaintiff then proceeds, in a somewhat disjointed manner, to set forth a litany of allegedly racially discriminatory actions taken by the various defendants, all of which he contends have violated his constitutional civil rights. Briefly, the allegations are as follows: (1) the NYSOIG, as an act of racial discrimination, sent plaintiff a subpoena requesting copies of his birth certificate, New York State driver's license and social security cards (Compl. PP 9-10); (2) defendants Rosetti, Nicklas and Spinelli, all employees of the NYSOIG, conspired with other individual defendants to deprive plaintiff of his constitutional rights (Compl. P 10); (3) plaintiff "believes" that defendants Town of Colonie Police Department ("Colonie Police"), Niagara Mohawk Power Corporation ("Niagara Mohawk"), and Pepsi-Cola of Albany Bottling Company ("Pepsi-Cola") all use in their vehicles certain electronic vehicle location systems by which they track vehicles on the road (Compl. 55 11-13); (4) the Central Intelligence Agency ("CIA"), Colonie Police, Niagara Mohawk, Pepsi-Cola and various individual defendants conspired to deprive plaintiff of his constitutional rights by following him around in his car in an effort to harass (Compl. P 14, 22, 25, 30, 34); (5) several of Niagara Mohawk's and Pepsi-Cola's trucks and cars either followed plaintiff in his car or attempted to run into plaintiff's car on various highways and dates (Compl. PP 14, 15, 16); (6) on March 8, 1993, defendant Colonie Police officers Robert Winn ("Winn") and Felice Trifaro ("Trifaro") stopped plaintiff at an arbitration grievance proceeding, temporarily placed him under arrest, took and searched his wallet, threatened plaintiff with bodily injury and/or arrest, and otherwise harassed him (Compl. P 17, 26); (7) plaintiff "believes" that defendant Carl G. Dworkin ("Dworkin"), a NYSDEC employee, had the aforementioned arbitration proceeding transferred from Schenectady to Colonie, N.Y. in order that the Colonie Police could take the actions alleged above (Compl. P 18); (8) various of the defendants are "deranged, psychotic, white supremist [sic] racists, that are used by the New York State Inspector General's office to carry out its' [sic] racist and criminal agenda in New York state." (Compl. P 21); (9) the CIA and the NYSOIG are racist, white supremacist and criminal organizations, and that several of its employees, named defendants herein, conspired with the NYSDEC and Colonie Police to do plaintiff bodily injury (Compl. P 23-24, 34); (10) defendant James Sikora ("Sikora"), a sales manager at Pepsi-Cola, subjected plaintiff to unspecified racial harassment (Compl. P 27); (11) defendant Dominick Della Rocco ("Della Rocco"), an employee of Niagara Mohawk, instructed Niagara Mohawk drivers to follow plaintiff and harass him (Compl. P 22); (12) and finally, it is plaintiff's "belief" that this Court and Magistrate Judge Ralph W. Smith, Jr. received monetary bribes from defendant Donald Paxson ("Paxson"), allegedly an employee of the CIA, so that plaintiff would receive unfavorable rulings in his prior actions (Compl. P 33).

 II. PRESENT MOTIONS

 On April 12, 1993, defendants Dworkin, Mathis, Rosetti, Nicklas, Spinelli, the NYSOIG, and the NYSDEC (the "State defendants") filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The State defendants also seek Rule 11 sanctions and an order enjoining defendant from instituting federal legal actions without prior court approval. *fn1"

 On May 13, 1993, defendant CIA filed a motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6).

 On May 17, 1993, plaintiff filed a motion pursuant to 28 U.S.C. § 455 to disqualify this judge and Magistrate Judge Ralph W. Smith, Jr. from presiding over this action on grounds of racial bias toward plaintiff. On May 28, 1993, defendants Niagara Mohawk and Della Rocco filed papers in opposition to plaintiff's motion for disqualification.

 On June 3, 1993, defendants Sikora and Pepsi-Cola filed a motion to dismiss the complaint pursuant to Rule 12(b)(6), or, in the alternative, for summary judgment pursuant to Rule 56. They also join in the motion for Rule ll sanctions and an order enjoining plaintiff from instituting federal legal actions without prior court approval.

 All motions were taken on a submission basis.

 For the reasons that follow, defendants' motions are granted in part and denied in part. Plaintiff's motion is denied.

 III. DISCUSSION

 A. Disqualification Under 28 U.S.C. § 455

 As a threshold matter, the court addresses plaintiff's request that the court disqualify itself and Magistrate Judge Smith from presiding over the instant action. Plaintiff alleges that this court has shown "bias to the plaintiff in his . . . legal actions No's 89-CV-0805, 92-CV-0834, and 92-CV-894." Pltf. Notice of Motion 05/14/93, P c. Plaintiff asserts that disqualification is warranted inasmuch as this court and Magistrate Judge Smith are "named in this legal action . . . [and] are incapable of making an unbiased decision in this matter." Pltf. Mem. of Law 05/14/93. Finally, and perhaps most disturbingly, plaintiff states that it is his "belief" that this court and Magistrate Judge Smith received monetary bribes as an inducement to rule against plaintiff in a prior action. See Hall v. N.Y.S. Dep't of Envtl. Conservation, 89-CV-805 (N.D.N.Y.).

 The motion is denied.

 Section 455 of Title 28 *fn2" of the United States Code contains two independent provisions. Section 455(a) provides, in pertinent part, that "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C.A. § 455(a) (Supp. 1993) (emphasis added). The statute further provides that a judge shall "disqualify himself . . . where he has a personal bias or prejudice concerning a party . . .". 28 U.S.C.A. § 455(b)(1) (Supp. 1993). Because plaintiff's sole ground for disqualification is alleged bias, the court treats section 455(b)(1) first.

  It is settled that § 455(b)(1) "looks to extrajudicial conduct as the basis for making such a determination, not conduct which arises in a judicial context," U.S. v. Terry, 802 F. Supp. 1094, 1097 (S.D.N.Y. 1992) (quoting Apple v. Jewish Hosp. & Medical Center, 829 F.2d 326, 333 (2d Cir. 1987) (emphasis added)). Moreover, a motion to recuse is committed to the sound discretion of the district court judge, In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1312 (2d Cir. 1988), reh'g denied, 869 F.2d 116 (2d Cir. 1989), cert. denied sub nom., Milken v. SEC, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012 (1989), and there is a "substantial burden" on the moving party to demonstrate that the judge is not impartial. Shabazz v. Scully, 1993 U.S. Dist. LEXIS 3, *1 (S.D.N.Y. 1993); Lamborn v. Dittmer, 726 F. Supp. 510, 514 (S.D.N.Y. 1989); U.S. v. Int'l Business Mach. Corp., 475 F. Supp. 1372, 1379 (S.D.N.Y. 1979), aff'd, 618 F.2d 923 (2d Cir. 1980). To meet this burden, plaintiff must proffer evidence to show that "a reasonable person knowing and understanding all the relevant facts would recuse the judge[s]." In re Drexel Burnham, supra, 861 F.2d at 1313; Apple, supra, 829 F.2d at 333 (citing U.S. v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)).

 In the case at bar, plaintiff has failed to meet his burden and the court finds no merit to his contentions. Hall has failed to present any evidence of, or suggest any motive for, bias or other wrongful conduct which could lead a reasonable person to conclude that disqualification is warranted. *fn3" His allegations, scurrilous indeed, are based solely on supposition and conclusory allegations, unsupported by even a shred of factual evidence or detail. As is not uncommon, the only logical explanation for plaintiff's motion is that he is unhappy with this court's prior rulings in this and his other cases. It is well settled, however, that personal bias or prejudice "means prejudice based on 'extrajudicial matters,' and earlier adverse rulings, without more, do not provide a reasonable basis for questioning a judge's impartiality." U.S. v. Colon, 961 F.2d 41, 44 (2d Cir. 1992); Arocena v. U.S, 721 F. Supp. 528, 530 (S.D.N.Y. 1989), aff'd, 902 F.2d 1556 (2d cir.), cert. denied 496 U.S. 939, 110 S. Ct. 3219, 110 L. Ed. 2d 667 (1990). Finally, "[a] judge should not recuse himself on unsupported, irrational, or highly tenuous speculation." Hinman v. Rogers, 831 F.2d 937, 939 (10th cir. 1987). Plaintiff'S accusations of impartiality, as well as his perceptions of persecution, unquestionably fall within this category.

 Turning to the broader provision of § 455, subsection (a), it is settled that inasmuch as plaintiff's motion to recuse rests solely on allegations of bias or prejudice on the part of the court, a motion under § 455(a) is not appropriate and therefore should not be granted. Apple, supra, 829 F.2d at 333 ("When, as here, a party has not alleged any grounds for recusal other than those relating to the district court's alleged bias or prejudice, those broader grounds [for recusal] are not implicated.") (citing U.S. v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980)).

 In short, Plaintiff has failed to meet his burden for disqualification under 28 U.S.C. § 455. As such, the court has no choice but to deny his motion. See In re Drexel Burnham, supra, 861 F.2d at 1312 (a "judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is.") *fn4"

 B. Rule 12(b)(6) Failure to State a Claim

 1. Standard of Review

 On a motion to dismiss, the facts alleged by the plaintiff are assumed to be true and must be liberally construed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Easton v. Sundram, 947 F.2d 1011, 1014 (2d Cir.), cert. denied, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992). While the court need not accept mere conclusions of law, the court should accept the pleader's description of what happened along with any conclusions that can reasonably be drawn therefrom. Murray v. City of Milford, 380 F.2d 468 (2d Cir. 1967).

 The court also notes with emphasis its obligation to afford plaintiff every favorable inference arising from his pro se status, as well as from his position as non-movant on these motions to dismiss. To be sure, because pro se plaintiffs are often unfamiliar with the formalities of pleading requirements, "the Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel." Platsky v. CIA, 953 F.2d 26, 28 (2d Cir. 1991) (citing Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S. Ct. 173, 66 L. Ed. 2d 163 (1980) (per curiam)); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) (per curiam).

 Further, the Supreme Court has recently held that federal courts are barred from applying a "heightened pleading standard" in civil rights cases under § 1983. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (March 3, 1993) (addressing municipal liability under Monell v. Dep't of Social Serv., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)). *fn5" Thus, the court's initial inquiry is merely directed to whether the allegations constitute a statement of claim under Rule 8(a), which calls for "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a).

 Consequently, plaintiff's complaint should not be dismissed for failure to state a claim unless it appears, beyond doubt, that he can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied 470 U.S. 1084, 105 S. Ct. 1845, 85 L. Ed. 2d 144 (1985); Wanamaker v. Columbian Rope Co., 740 F. Supp. 127 (N.D.N.Y. 1990). With this ...


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