United States District Court, D. Connecticut
TERRY J. DIMARTINO, Plaintiff,
ERIN PULICE, SARA HAMILTON, UNITED STATES OF AMERICA, INTERNAL REVENUE SERVICE, JOHN KOSKINEN, JASON M. SCHEFF and ALVIN W. THOMPSON, Defendants.
ORDER RE MOTION TO RECUSE
W. THOMPSON, UNITED STATES DISTRICT JUDGE
plaintiff, Terry DiMartino (“DiMartino”), filed a
complaint against Erin Pulice (“Pulice”), Jason
Scheff (“Scheff”), and Sara Hamilton
(“Hamilton”). Defendants Pulice and Scheff are
attorneys who prosecuted a criminal case against DiMartino
for obstructing and impeding the due administration of the
Internal Revenue laws, filing false tax returns, and
willfully failing to file tax returns. Defendant Hamilton was
one of the IRS case agents in the criminal matter. The case
went to trial before a jury, and DiMartino was found guilty
of all eight counts of the indictment. See United States
v. DiMartino, 14-cr-175, Doc. No. 233.
case was initially assigned to Judge Stefan R. Underhill, but
was transferred to the undersigned, who was the presiding
judge in the criminal case. On March 10, 2016, DiMartino
filed a motion to recuse the undersigned. On April 1, 2016,
DiMartino filed an “Addendum to the Complaint, ”
in which he added the undersigned as a defendant.
justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned. He shall also
disqualify himself . . . [w]here 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. In a motion under § 455 alleging
[t]he analysis . . . looks to the extrajudicial conduct as
the basis for making [a determination of partiality], not
conduct which arises in the judicial context. And the
substantive standard for recusal is whether a reasonable
person, knowing all the facts, would conclude that the
court's impartiality might reasonably be questioned.
Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326,
333 (2d Cir. 1987) (citation omitted).
meaning of “extrajudicial conduct” was examined
extensively in Liteky v. United States, 510 U.S. 540
(1994). In Liteky, the petitioner challenged a district
judge's denial of a motion pursuant to 28 U.S.C. §
455(a) seeking that the judge disqualify himself for bias
because he had presided over a previous case in which the
petitioner was a defendant. After concluding that § 455
requires a showing of bias from an “extrajudicial
source, ” Id. at 554, the Court established
guiding principles for use in analyzing such situations.
“First, judicial rulings alone almost never constitute
a valid basis for a bias or partiality recusal motion,
” and “[s]econd, opinions formed by the judge on
the basis of facts introduced or events occurring in the
course of the current proceedings . . . do not constitute a
basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair
judgment impossible.” Id. at 555.
Second Circuit similarly has rejected those recusal motions
that are based solely on comments and rulings made in a
judicial capacity.” Bin-Wahad v. Coughlin, 853
F.Supp. 680, 686 (S.D.N.Y. 1994) (citing In re Drexel
Burnham Lambert Inc., 861 F.2d 1307 (2d Cir. 1988)); see
also United States v. Bernstein, 533 F.2d 775, 785
(2d Cir. 1976) (“The rule of law . . . is that what a
judge learns in his judicial capacity . . . is a proper basis
for judicial observations, and the use of such information is
the not the kind of matter that results in
disqualification.”). Moreover, “[a] judge's
ordinary efforts at courtroom administration--even a stern
and short-tempered judge's ordinary efforts at courtroom
administration--remain immune [from establishing a basis for
disqualification].” Liteky, 510 U.S. at 556.
“A judge is as much obliged not to recuse himself when
it is not called for as he is obliged to when it is.”
In re Drexel Burnham Lambert Inc., 861 F.2d 1307,
1312 (2d Cir. 1988).
statute governing recusal, 28 U.S.C. § 455 appears to
mandate recusal under certain circumstances, such as when a
judge is a party to, or has a financial interest in, a
proceeding.” In re Certain Underwriter, 294
F.3d 297, 303 (2d Cir. 2002). “However, it is clear
that a judge is not disqualified under 28 U.S.C. § 455 .
. . merely because a litigant sues or threatens to sue
him.” In re Martin-Trigona, 573 F.Supp. 1237,
1243 (D. Conn. 1983) (citing United States v.
Grismore, 564 F.2d 929, 933 (10th Cir. 1977)).
A judge who is named as a defendant in a plaintiff's
amended complaint is not required to disqualify him or
herself unless there is a legitimate basis for suing the
judge. For a judge to be disqualified simply because the
plaintiff has sued that judge would be to allow the plaintiff
to manipulate the identity of the decision-maker and thus to
engage in judge-shopping.
32 Am. Jur. 2d Federal Courts § 95. See also Stine
v. Oliver, No. 15-1233, 2016 WL 1320436, at *2 (10th
Cir. Apr. 5, 2016) (“Judges do not need to recuse
simply because they have been sued by one of the
parties.”); Alarcon v. Parks, Recreation &
Museums, No. 15-CV-339 RRM GRB, 2015 WL 4895497, at *1
n.1 (E.D.N.Y. Aug. 16, 2015) (“Obviously a litigant
should not be enabled to judge-shop merely by making written
attacks upon or filing a complaint against the assigned
judge.”); Hopson v. Berry, No. 3:12-CV-706-R,
2012 WL 6115395, at *1 (W.D. Ky. Dec. 10, 2012) (“The
Court concludes that there is no legitimate basis for
Plaintiff to sue the undersigned. The Court is convinced that
Plaintiff is trying to manipulate the system in order to get
a new judge.”); Rodriguez ex rel. Rodriguez-Hazbun
v. Nat'l Ctr. for Missing & Exploited Children, No.
CIV.A. 03-120 (RWR), 2005 WL 736526, at *17 (D.D.C. Mar.
31, 2005), aff'd sub nom. In re Rodriguez, No.
05-5130, 2005 WL 3843612 (D.C. Cir. Oct. 14, 2005)
(“[I]t is apparent that plaintiffs do not have a
legitimate basis for suing me or these other newly-named
defendants. Rather, plaintiffs' amended complaint and
motion to disqualify are merely transparent attempts to
judge-shop and forum-shop.”); 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.”); Andersen v.
Roszkowski, 681 F.Supp. 1284, 1289 (N.D.Ill. 1988),
aff'd, 894 F.2d 1338 (7th Cir. 1990) (“It is
apparent to the Court that plaintiffs do not have a
legitimate basis for suing me, my secretary, and my minute
clerk. None of us were sued in plaintiffs' initial
complaint; we were added as defendants only after I dismissed
plaintiffs' Complaint for failure to comply with
Fed.R.Civ.P. 8 and 9(b).”); United States v.
Studley, 783 F.2d 934, 940 (9th Cir. 1986) (“A
judge is not disqualified by a litigant's suit or
threatened suit against him, or by a litigant's
intemperate and scurrilous attacks . . . .”) (citation
and quotation marks omitted).
plaintiff has not identified in his motion any extrajudicial
conduct as a basis for his motion, so the court construes the
motion to recuse as being based on the undersigned's
comments and rulings made in a judicial capacity. The
original complaint did not name the undersigned as a
defendant in this case. In the amended complaint, in which
DiMartino added the undersigned as a defendant, he set forth
no factual allegations as to the undersigned. But prior to
adding the undersigned as a defendant and filing the instant
motion, DiMartino raised an objection during a telephonic
status conference to the fact that the case was transferred
from Judge Underhill to the undersigned. See United
States v. DiMartino, 3:14-cr-175(AWT), Doc. No. 204. The
plaintiff had also moved to recuse the undersigned in the
related criminal case. See Id. at Doc. No. 100.
Thus, it appears that he added the undersigned as a defendant
in order to force recusal, and he has not identified either
any grounds for suing the undersigned or a legitimate basis
the plaintiff's Motion to Recuse (Doc. No. ...