The opinion of the court was delivered by: SCULLIN
Currently before this Court are three motions relating to plaintiffs' pro se 42 U.S.C. § 1983 action against defendants William Gokey, Superintendent, and Ernest Clapper, Elementary School Principal, of the Mayfield Central School District: plaintiffs' motion for an order of recusal pursuant to 28 U.S.C. § 455, plaintiffs' motion for summary judgment pursuant to Fed. R. Civ. P. 56, and defendants' motion for dismissal pursuant to Fed. R. Civ. P. 12(h).
Plaintiffs' daughter, Heidi Kampfer, was absent from school on October 30, 1995.
When she returned to school on October 31, Nurse Henry, a nurse from an area school program, checked Heidi and found evidence of nits. While state law requires that students found with nits or headlice be sent home from school to avoid the risk of contagion,
plaintiffs came to the school and asked that Heidi be allowed to stay through the day in order to participate in the school's Halloween festivities later that day. Defendant Ernest Clapper permitted Heidi to stay for the day's parade and party.
When Heidi came to school the next day, November 1, her teacher told her to go to the office of their school nurse, Nurse Linda Hand, to be re-checked for nits before being readmitted to the classroom.
However, Heidi apparently was upset by this and refused to go to the nurse, so plaintiffs were contacted. Plaintiff Douglas Kampfer came to the school, as well as a deputy sheriff whom Kampfer had summoned. The school offered to have Heidi inspected by the school nurse, but Mr. Kampfer refused to have Nurse Hand perform the inspection, demanding instead that the inspection be done by the school physician. Defendants refused to authorize the school physician to inspect Heidi, and thus Heidi, still uninspected, was sent home from school.
Plaintiffs filed the instant pro se § 1983 action on November 7, 1995. Plaintiffs allege that the defendants violated plaintiffs' Fourteenth Amendment rights as parents to educate their child in the school of their choice. More particularly, plaintiffs allege that defendants refused on November 1 and 2 to authorize the medical inspection of plaintiffs' child by the school doctor for the purpose of certifying that she was free of any contagious disease and could return to school.
In reviewing the submissions of a plaintiff acting pro se, the Court must "read his supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quotation omitted).
I. Plaintiffs' Motion for Recusal
Plaintiffs move, pursuant to 28 U.S.C. § 455, for recusal of the undersigned judge. Plaintiffs claim that "the assigned District Court Judge could not and would not be able to render any decisions in [this case] without bias," because on May 1, 1995, in a related action, plaintiffs filed a motion for an order of protection for their children before the undersigned, and on May 22, 1995, plaintiffs filed a judicial conduct complaint against the undersigned in the United States Court of Appeals for the Second Circuit, claiming that this judge's failure to decide their motion for a protective order by that date endangered the health, safety and welfare of their children. (Pls.' Aff. Supp. Mot. Recusal at 2). This Court also points to the fact that on October 11, 1996, while the instant motions were pending, plaintiffs in this action filed a suit against the undersigned in this district court requesting injunctive and other relief Kampfer v. Scullin, No. 96-CV-1658 (RSP) (DNH). In that suit, plaintiffs complain of the undersigned's failure to promptly respond to their motion for an order of protection in their previous action, and demand review of that motion by an unbiased judge and the institution of a local rule mandating timely response to similar motions.
While this Court appreciates plaintiffs' concern for the health and safety of their children, and their fear of unjustified reprisal by the undersigned, neither the alleged untimeliness of this judge's decision on plaintiffs' motion in the previous case, the mere fact that plaintiffs filed a judicial conduct complaint against the undersigned, nor plaintiffs' subsequent suit against the undersigned, show "a deep-seated favoritism or antagonism" to plaintiffs, such that the undersigned's impartiality could reasonably be questioned in this action. Liteky v. United States, 510 U.S. 540, , 114 S. Ct. 1147, 1158, 127 L. Ed. 2d 474 (1994).
The recusal statute was not intended "to be used as a judge shopping device." Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995). The Supreme Court has held that where grounds for recusal consist of "judicial rulings [and] routine trial administration efforts which occur "in the course of judicial proceedings," recusal will not be appropriate absent a showing that those rulings either "relied upon knowledge acquired outside such proceedings [or] displayed deep-seated and unequivocal antagonism that would render fair judgment impossible." Liteky, 114 S. Ct. at 1158. Prior adverse rulings are not in themselves grounds for recusal. See id. at 1157; United States v. Cooley, 1 F.3d 985, 994 (10th Cir. 1993). Nor, for that matter, can litigants obtain recusal simply by filing a frivolous suit against the judge. See Cooley, 1 F.3d at 994; United States v. Pryor, 960 F.2d 1, 3 (1st Cir. 1992) ("It cannot be that an automatic recusal can be obtained by the simple act of suing the judge."). "[A] judge has as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require." Nichols, 71 F.3d at 351.
In this case, plaintiffs have made conclusory claims of bias without adequate supporting factual allegations. The Court finds no merit to Plaintiffs' claims against the undersigned and therefore sees no basis for recusal. Thus, the motion for recusal must be ...