United States District Court, D. Connecticut
INITIAL REVIEW ORDER
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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).
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).
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.,
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).
STANDARD OF REVIEW
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. §
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).
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 ...