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Viola v. United States

United States District Court, D. Connecticut

September 28, 2017

GREGORY VIOLA, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          INITIAL REVIEW ORDER

          CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Gregory Viola is currently incarcerated at the Devens Federal Medical Center in Ayer, Massachusetts. He has filed this action as a Complaint and Petition for Writ of Mandamus ("the Complaint") [Doc.1] pursuant to 28 U.S.C. § 1361. For the reasons set forth below, Viola's Complaint is dismissed.

         I. BACKGROUND

         On February 1, 2012, in the Hartford, Connecticut courtroom of United States District Court Judge Vanessa L. Bryant, Viola pleaded guilty to two counts of mail fraud in violation of 18 U.S.C. § 1341. See U.S. v. Viola, Case No. 3:12cr25(VLB) (Minute Entry - Plea Entry, ECF No. 27). On October 4, 2012, Judge Bryant sentenced Viola to a total effective sentence of 100 months of imprisonment followed by thirty-six months of supervised release. See Id. (Minute Entry - Sentencing, ECF No. 69; Judgment, ECF No. 71). In addition, the court ordered Viola to pay a special assessment of $200.00 and restitution in the amount of $6, 872, 633.97. See id.

         After Judge Bryant denied his motion for a new trial, Viola appealed the judgment of conviction. See Id. (Order Denying Motions for New Trial, ECF No. 96; Notice of Appeal, ECF No. 97). On February 10, 2014, the Court of Appeals for the Second Circuit affirmed the judgment of conviction. See U.S. v. Viola, 555 Fed.Appx. 57 (2d Cir. 2014). On November 17, 2014 Viola's petition for writ of certiorari was denied. See Viola v. U.S., 135 S.Ct. 674 (2014).

         On September 22, 2015, Viola filed a motion to vacate, set aside or correct sentence, pursuant to 28 U.S.C. § 2255. See Viola v. U.S., No. 3:15cv1398(VLB), 2016 WL 1664756 (D.Conn. April 26, 2016). On August 22, 2016, Viola filed a motion in that case seeking the recusal of Judge Bryant. See Case No. 3:15cv1398(VLB) (Motion to Recuse, ECF No. 38); Compl. ¶ 5. On September 1, 2016, Judge Bryant denied the motion for recusal. See Case No. 3:15cv1398(VLB) (Order Denying Motion to Recuse, ECF No. 39); Compl. ¶ 5. On September 29, 2016, Judge Bryant denied Viola's motion for reconsideration of her ruling denying the motion for recusal. See Case No. 3:15cv1398(VLB) (Order Denying Motion for Reconsideration, ECF No. 42); Compl. ¶ 5.

         On October 11, 2016, Viola filed an interlocutory appeal of the order denying the motion for recusal. See Case No. 3:15cv1398(VLB) (Notice of Interlocutory Appeal, ECF No. 43); Compl. ¶ 5. On October 25, 2016, Viola filed a motion for leave to appeal from the denial of his motion for recusal. See Case No. 3:15cv1398(VLB) (Motion for Leave to Appeal, ECF No. 45). On October 26, 2016, Judge Bryant denied the motion for leave to appeal. See Id. (Order Denying Motion for Leave to Appeal, ECF No. 46); Compl. ¶ 5. On December 27, 2016, the Court of Appeals for the Second Circuit dismissed the interlocutory appeal for failure to obtain court permission. See Case No. 3:15cv1398(VLB) (Mandate of Dismissal, ECF No. 47).

         On March 15, 2017, the district court administratively closed Viola's § 2255 case, without prejudice to reopening within 120 days of the date of the order. See Case No. 3:15cv1398(VLB) (Order Closing Case, ECF No. 49). Viola did not move to reopen the case within the prescribed time frame, which expired on July 13, 2017, and that case remains closed. See Id. On May 9, 2017, Viola filed a new § 2255 motion based upon the same conviction. See Viola v. U.S., Case No. 3:17cv760(VLB).

         Viola's Complaint asks this Court, by writ of mandamus, to grant his original motion to recuse and compel Judge Bryant to recuse herself. Compl. 3. As indicated above, Viola filed two § 2255 cases. The court construes the Complaint as seeking a writ of mandamus directed to the first § 2255 case, Viola v. United States, Case No. 3:15cv1398(VLB), because the facts asserted in the Complaint pertain to rulings on the motion for recusal issued by Judge Bryant in that action. Viola has not filed a motion for recusal in his second § 2255 case. See Viola v. U.S., 3:17cv760(VLB).

         In addition to the instant Complaint, Viola filed with this Court a separate Bivens action against Judge Bryant, which was dismissed, pursuant to 28 U.S.C. § 1915A(b)(1) and (2), by my Initial Review Order of June 21, 2017. See Viola v. Bryant, No. 3:17cv00853 (CSH), 2017 WL 2676407 (D. Conn. June 21, 2017). Viola appealed that dismissal to the Second Circuit Court of Appeals, which appeal remains pending. See Case No. 3:17cv00853 (CSH) (Notice of Appeal, ECF No. 4); Case No. 17-2342 (on appeal).

         II. STANDARD OF REVIEW

         Under 28 U.S.C. § 1915A, the Court must review all prisoner civil complaints against governmental actors, and dismiss any portion of the complaint that "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or that "seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b)(1), (2).

         In reviewing a pro se complaint, the Court must assume the truth of the allegations, and interpret them liberally to "raise the strongest arguments [they] suggest[]." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Although detailed allegations are not required, the complaint must include sufficient facts to afford the defendants fair notice of the claims and the grounds upon which they are based. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). A plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. Conclusory allegations are not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nevertheless, it is well-established that "pro se complaints 'must be construed liberally and interpreted to raise the strongest arguments that they suggest.'" Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101-02 (2d Cir. 2010) (discussing special rules of solicitude for pro se litigants).

         This special solicitude does not relieve the pro se plaintiff of his obligation to establish grounds for the court's exercise of jurisdiction. "Although we construe a pro se plaintiff's complaint liberally, a plaintiff attempting to bring a case in federal court must still comply with the relevant rules of procedural and substantive law, including establishing that the court has subject matter jurisdiction over the action." Ally v. Sukkar, 128 Fed.Appx. 194, 195 (2d ...


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