DiMartino v. Pulice et al

Filing 21

ORDER: For the reasons set forth in the attached order, the Motion to Recuse (Doc. No. 12 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 3/10/17. (Rafferty, M.) (Additional attachment(s) added on 3/10/2017: # 1 REPLACEMENT PDF - to incude Judge's electronic signature) (Ferguson, L.).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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TERRY J. DIMARTINO,
:
:
Plaintiff,
:
:
v.
:
:
ERIN PULICE, SARA HAMILTON,
:
UNITED STATES OF AMERICA,
:
INTERNAL REVENUE SERVICE,
:
JOHN KOSKINEN, JASON M. SCHEFF :
and ALVIN W. THOMPSON,
:
:
Defendants.
:
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CRIM. NO. 3:16cv378(AWT)

ORDER RE MOTION TO RECUSE
The 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.
This 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.
“Any 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 bias:
[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).
The 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
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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.

“The 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

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when it is.”

In re Drexel Burnham Lambert Inc., 861 F.2d 1307,

1312 (2d Cir. 1988).
“The 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.”
Cir. 2002).

In re Certain Underwriter, 294 F.3d 297, 303 (2d
“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 decisionmaker 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.
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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. 03120 (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

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scurrilous attacks . . . .”) (citation and quotation marks
omitted).
The 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.
3:14-cr-175(AWT), Doc. No. 204.

See United States v. DiMartino,
The plaintiff had also moved to

recuse the undersigned in the related criminal case.
Doc. No. 100.

See id. at

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 for recusal.
Therefore, the plaintiff’s Motion to Recuse (Doc. No. 12)
is hereby DENIED.
It is so ordered.

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Signed this 10th day of March, 2017, at Hartford, Connecticut.

_____________________________
Alvin W. Thompson
United States District Judge

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