Pietsch v. Marcantonio et al

Filing 18

MEMORANDUM & ORDER. Plaintiff's claims against Defendants Hofstra University and Stuart Rabinowitz are DISMISSED WITH PREJUDICE and these Defendants are TERMINATED from this action. The Clerk of the Court is DIRECTED to issue a Summons against P .O. Marcantonio and forward it to the USMS together with the Complaint and the November 18th Order for service upon P.O. Marcantonio at 144 Hofstra University, Hempstead, New York. Plaintiff's motion 13 for an "open-ended extension of tim e... until Vito Marcantonio... is found, identified, and served by the U.S. Marshall" is DENIED. Plaintiff's 11 MOTION for Extension of Time to File Amended Complaint for 20 days is MOOT and the MOTION for Recusal of Judge Joanna Seybert is DENIED. The Court certifies that any appeal from this Order would not be taken in good faith and in forma pauperis status is DENIED for purposes of an appeal. Ordered by Judge Joanna Seybert on 2/25/2014. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
WALTER G. PIETSCH,
Plaintiff,

MEMORANDUM & ORDER
13-CV-4696(JS)(WDW)

-againstPOLICE OFFICER VITO MARCANTONIO,
SHIELD # 299; HOFSTRA UNIVERSITY;
COMMISSION ON PRESIDENTIAL DEBATES;
DEMOCRATIC NATIONAL COMMITTEE;
REPUBLICAN NATIONAL COMMITTEE; and
STUART RABINOWITZ,

Defendants.
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APPEARANCES
For Plaintiff:
Walter G. Pietsch, pro se
P.O. Box 10057
Westbury, NY 11590
For Defendants:

No appearances.

SEYBERT, District Judge:
On

August

21,

2013,

plaintiff

Walter

G.

Pietsch

(“Plaintiff”), proceeding pro se, commenced this action pursuant
to 42 U.S.C. § 1983 (“Section 1983”) against Police Officer Vito
Marcantonio, Shield # 299 (“P.O. Marcantonio”); Hofstra University
(“Hofstra”); Stuart Rabinowitz (“Rabinowitz”); the Commission on
Presidential

Debates

(“Commission”);

the

Democratic

National

Committee (“DNC”); and the Republican National Committee (“RNC”
and collectively, “Defendants”).
On November 18, 2013, this Court sua sponte dismissed
without prejudice Plaintiff’s claims against Hofstra, Rabinowitz,

the

Commission,

the

DNC,

and

28 U.S.C. § 1915(e)(2)(B)(ii).
Docket Entry 7.)

the

RNC

pursuant

to

(See the “November 18th Order,”

With respect to the claims against Hofstra and

Rabinowitz, the Court found that Plaintiff’s claims were not
plausible because Plaintiff failed to establish that Hofstra and
Rabinowitz were state actors for purposes of a Section 1983 claim.
(November

18th

Plaintiff

Order

leave

to

at

8-10.)

re-plead

his

However,
claims

the

Court

against

granted

Hofstra

and

Rabinowitz to allege how Hofstra and Rabinowitz, as a private
entity and individual, respectively, were acting under color of
state

law

during

the

alleged

Constitutional

violation

within

thirty days from the November 18, 2013 Order. (November 18th Order
at 13.)

The Court also granted Plaintiff leave to amend his

Complaint to add the Commission, the DNC, or the RNC should he
discover, at a later date, that P.O. Marcantonio was employed by
any of these entities on the date in question.
Order at 13-14.)
Complaint

would

(November 18th

Finally, the Court also ruled that Plaintiff’s
proceed

against

P.O.

Marcantonio

but

ordered

Plaintiff to provide the Court with an address for P.O. Marcantonio
in writing within thirty days in order to permit the United States
Marshals

Service

(“USMS”)

to

serve

copies

of

the

Summons,

Complaint, and the November 18th Order upon P.O. Marcantonio.
(November 18th Order at 14.)

2

On December 12, 2013, Plaintiff moved for an extension
of time to file an amended complaint.

(Docket Entry 9.)

On

December 17, 2013, the Court granted Plaintiff’s request and
ordered Plaintiff to file an amended complaint by December 28,
2013.

On December 18, 2013, Plaintiff filed a document that he

identified as an “Amended Complaint.” (Docket Entry 11.) However,
the

December

18th

filing

does

not

include

any

allegations

purporting to cure the pleading deficiencies of the original
Complaint as against Hofstra and Rabinowitz.

Rather, the December

18th filing contains a motion for recusal of the Undersigned and
a reiteration of Plaintiff’s previous request for the twenty-day
extension of time to file an amended complaint.

The December 18th

filing also provided the Court with an address of “Commission on
Presidential Debates, 1200 New Hampshire Avenue, NW, Washington,
DC 20036” for service of the Summons, Complaint, and the November
18th Order on P.O. Marcantonio.

(Docket Entry 11 at 5.)

On December 27, 2013, Plaintiff filed another document
that he identified as a “Crucial Addendum to Amended Complaint.”
(Docket Entry 12.)

However, like Plaintiff’s prior filing on

December 18th, the December 27th filing did not include any
allegations purporting to cure the pleading deficiencies of the
original

Complaint

as

against

Hofstra

and

Rabinowitz,

but

Plaintiff did request an additional twenty-day extension to file
an amended complaint.

Since that time, Plaintiff has filed an
3

additional motion for recusal of the Undersigned and motion for an
“open-ended extension of time . . . until Vito Marcantonio . . . is
found, identified, and served by the U.S. Marshall.” (Docket Entry
13.)

Plaintiff also filed prolix documents on February 4, 5, and

10, 2014.

(Docket Entries 15-17.)

Like Plaintiff’s previous

filings, none of these filings includes any facts or allegations
that Hofstra or Rabinowitz were acting under color of state law,
nor are there any facts from which the Court could reasonably
construe a conspiracy claim against either Hofstra or Rabinowitz.
However, in his February 5, 2014 filing, Plaintiff provided a new
address

for

P.O.

Marcantonio

Hempstead, NY 11549.”

at

“144

Hofstra

University,

(Docket Entry 16.)

Based on the foregoing, the Court makes the following
rulings:
Since Plaintiff has failed to provide the Court with an
amended complaint addressing the pleading deficiencies of the
original Complaint as against Hofstra and Rabinowitz as required
by the November 18th Order, Plaintiff’s claims against Hofstra and
Rabinowitz are DISMISSED WITH PREJUDICE.
Since Plaintiff has provided the Court with an address
to serve P.O. Marcantonio, the Clerk of the Court is DIRECTED to
issue a Summons against P.O. Marcantonio and forward it to the
USMS together with the Complaint and the November 18th Order for
service

upon

P.O.

Marcantonio
4

at

“144

Hofstra

University,

Hempstead, NY 11549.”

Accordingly, Plaintiff’s motion for an

“open-ended extension of time . . . until Vito Marcantonio . . .
is found, identified, and served by the U.S. Marshall” is DENIED.
Finally, the Court DENIES Plaintiff’s motion for recusal
of the Undersigned.

Plaintiff states that the Undersigned “should

recuse herself from any further hearing of this case, due to the
clearly biased, subjective nature of her November 18th dismissal.”
(Docket Entry 11 at 1.)
besides

his

own

However, Plaintiff alleges no fact,

subjective

dissatisfaction

with

the

rulings

contained in the November 18th Order and Judge Joseph F. Bianco’s
prior recusal from this case1, as a basis for his motion.
Although Plaintiff has not identified which statute or
rule he relies upon in making his motion, Plaintiff’s allegations
do not support a finding of impartiality, personal bias, or
prejudice under either 28 U.S.C. § 455 or 28 U.S.C § 144, the two
statutes

that

require

recusal

or

disqualification

impartiality, personal bias, or prejudice.

due

to

It is well-settled

that a motion for recusal “may be made only on the basis of alleged
bias or prejudice from an extrajudicial source,” not upon court’s
rulings or conduct.

Goodwine v. Nat’l R.R. Passenger Corp., No.

12-CV-3882, 2014 WL 37850, at *2 (E.D.N.Y. Jan. 6, 2014); see also
Rajagopala v. Trustees of Columbia Univ., No. 06-CV-6841, 2012 WL

On October 31, 2013, Judge Bianco recused himself from this
action pursuant to 28 U.S.C. § 455.
1

5

2878123, at *9 (S.D.N.Y. July 13, 2012) (“[J]udicial rulings alone
almost never constitute a valid basis for a bias or partiality
motion . . . .”) (quoting Weisshaus v. Fagan, 456 F. App’x 32, 35
(2d Cir. 2012)); United States v. El-Gabrowny, 844 F. Supp. 955,
959 (S.D.N.Y. 1994) (“[B]ecause it is in the nature of a judge’s
job to rule, and any ruling must favor one side and disfavor the
other, rulings during the course of a case generally are not
regarded as evidence of bias . . . .”).

Accordingly, Plaintiff’s

motion for recusal is DENIED.
CONCLUSION
Plaintiff’s claims against Hofstra and Rabinowitz are
DISMISSED WITH PREJUDICE.
The Clerk of the Court is DIRECTED to issue a Summons
against P.O. Marcantonio and forward it to the USMS together with
the Complaint and the November 18th Order for service upon P.O.
Marcantonio at 144 Hofstra University, Hempstead, NY 11549.
Plaintiff’s motion for an “open-ended extension of time
. . . until Vito Marcantonio . . . is found, identified, and served
by the U.S. Marshall” is DENIED.
Plaintiff’s motion for recusal of the Undersigned is
DENIED.
Given Plaintiff’s pro se status, the Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Memorandum and Order would not be taken in good faith and therefore
6

in forma pauperis status is DENIED for purposes of an appeal.
Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8
L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to pro se Plaintiff.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

February
25 , 2014
Central Islip, New York

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