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Tropeano v. City of New York

May 24, 2007


The opinion of the court was delivered by: Townes, United States District Judge


On May 12, 2006, Susan Tropeano -- who was formerly employed by defendant New York City Department of Education ("DOE") as a teacher at P.S. 66 in Queens -- and her husband, Joseph Tropeano, filed the instant action. On October 30, 2006, this Court issued a Memorandum and Order which granted Susan Tropeano's request to proceed in forma pauperis, dismissed the complaint in partand directed Mrs. Tropeano to file an amended complaint in order to proceed with this action. In a letter dated January 3, 2007, this Court extended plaintiffs' time to file the amended complaint to March 2, 2007, and advised plaintiffs that this Court would not rule on a request for appointment of counsel until plaintiffs filed the amended complaint.

Although this Court twice advised plaintiffs that the complaint would be dismissed in its entirety if they failed to file the amended complaint on or before March 2, 2007, plaintiffs have refused to do so, repeatedly stating that they will not file an amended complaint until this Court appoints "reputable" counsel to represent them. Plaintiffs assert that stress-related problems prevent them from complying with this Court's orders, but have nonetheless managed to file several other documents, including a 57-page letter requesting that this Court recuse itself. They have also filed numerous exhibits -- albeit not all the documents this Court specifically requested -- and a letter from their psychologist, who urges this Court to appoint counsel on plaintiffs' behalf. For the reasons set forth below, this Court declines to recuse itself, declines to appoint counsel and dismisses plaintiffs' complaint in its entirety.


Plaintiffs' complaint specifically alleges that this Court has jurisdiction under various federal statutes, including Title VII, the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), the Employee Retirement Income Security Act ("ERISA"), the Civil Rights Act and the Racketeer Influenced and Corrupt Organizations Act ("RICO"). Pursuant to the dictates of 28 U.S.C. § 1915, and in keeping with this Court's affirmative obligation to examine the bases of its jurisdiction, see FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990), this Court carefully reviewed the allegations contained in plaintiffs' 143-page complaint. This Court concluded that, despite the complaint's considerable length, it fails to allege facts suggesting a violation of any of these statutes. In addition, the complaint itself suggests certain procedural bars to raising some of these claims.

In a Memorandum and Order dated October 30, 2006 (the "M&O"), this Court explained why certain causes of action -- such as plaintiffs' Title VII, ADEA and ADA claims against individual defendants, as well as claims under ERISA and the LMRA -- could not proceed and had to be dismissed. In addition, the M&O explained that the allegations in the complaint were insufficient to make out certain other claims, and that some claims appeared to be procedurally barred. For example, the M&O noted that plaintiffs' EEOC charge appeared to be untimely filed and that plaintiffs needed to allege a basis for equitable tolling.

Recognizing that plaintiffs were proceeding pro se, this Court afforded plaintiffs the opportunity to amend the complaint. In a section entitled, "Leave to Amend," this Court described with particularity what additional information plaintiffs needed to provide. In addition, this Court advised plaintiffs that the failure to provide the information within 30 days would result in dismissal of the complaint.

In mid-December 2006, this Court received a one-page fax from plaintiffs, alleging that they had not received a copy of the M&O until December 14, 2006. Shortly thereafter, this Court received a 45-page letter, dated December 28, 2006. That letter did not purport to be an amended complaint, and could not be construed as such. Indeed, the letter stated that plaintiffs would not amend the complaint until this Court appointed counsel on their behalf. See Letter to Judge Townes from Susan and Joseph Tropeano, dated Dec. 28, 2006, at 13. The letter also contained several references to Robert LoPresti, law clerk to Justice Robert W. Schmidt of the Appellate Division, Second Department, and implied that Mr. LoPresti was involved in this case. Id. at 1-2.

In response to plaintiffs' letter, this Court sent plaintiffs a letter dated January 3, 2007, in which this Court sua sponte extended plaintiffs' time to file an amended complaint to March 2, 2007. The Court sought to disabuse plaintiffs of the notion that they were entitled to court-appointed counsel, explaining that this Court could not request counsel for them unless their case appeared "likely to be of substance." Letter to Mr. and Mrs. Joseph Tropeano from Hon. Sandra L. Townes, dated Jan. 3, 2007, at 2 (citing Ferrelli v. River Manor Health Care Center, 323 F.3d 196, 204 (2d Cir. 2003)). The Court further noted that this threshold determination could not be made until plaintiffs amended their pleadings, and cautioned plaintiffs that their action would be dismissed if they did not do so.

In the interests of full disclosure, this Court informed plaintiffs of its connection to the Appellate Division, Second Department. This Court described with as much precision as possible its prior contacts with Justice Schmidt and Mr. LoPresti, and advised plaintiffs that they could move this Court to recuse itself if they believed "that these minimal contacts create[d] an appearance of impartiality or impropriety." Id. at 2. However, the Court repeated that the amended complaint had to be filed by March 2, 2007, and advised plaintiffs that a recusal motion would not further extend their time to file the amended complaint.

In mid-February 2007, plaintiffs filed several hundred pages of documents, including a 57-page letter requesting that this Court recuse itself (the "Recusal Letter"). That letter alleges that Mr. LoPresti, Justice Schmidt and various other individuals are plaintiffs' "adversaries." However, the only alleged connection between Mr. LoPresti, Justice Schmidt and plaintiffs is that Mr. LoPresti's wife, Genevieve Lane LoPresti, represented plaintiffs for about half a year before moving to be relieved from plaintiffs' case in October 2005. In addition, the Recusal Letter asserts, based on this Court's prior decisions in this case and minimal connections to Mr. LoPresti, that this Court is biased against plaintiffs.


The Recusal Motion

Section 455 of the United States Judicial Code, 28 U.S.C. § 455, governs the recusal of federal judges. In re Aguinda, 241 F.3d 194, 200 (2d Cir. 2001). This statute has two subsections. Subsection (b) contains a list of circumstances in which a judge must recuse himself or herself. Such circumstances include, in pertinent part, instances in which the judge "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455(b)(1). However, in interpreting this statute, the Supreme Court has stated that "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion," noting that such rulings may be "proper grounds for appeal, not for recusal." Liteky v. United States, 510 U.S. 540, 555 (1994). Moreover, recusal is not ...

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