Myers v. The People of the State of New York (Department of Motor Vehicles) et al
DECISION AND ORDERED, that Plaintiffs Motions for Reconsideration (Dkt. Nos. 71, 73) are DENIED; and it is further ORDERED, that Plaintiffs Motion for Recusal and Reconsideration (Dkt. No. 77) is DENIED; and it is further ORDERED, that Plaintiffs Letter Motion for Expedited Consideration is DENIED as moot (Dkt. No. 78. Signed by Senior Judge Lawrence E. Kahn on September 28, 2017. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THE PEOPLE OF THE STATE OF
NEW YORK, et al.,
DECISION AND ORDER
Pro se plaintiff Scott Myers commenced this action pursuant to 42 U.S.C. § 1983 for
violations of his civil rights that allegedly occurred after he was arrested on the charge of driving
while intoxicated. Dkt. Nos. 1 (“Complaint”), 26 (“Amended Complaint”), 49 (“Second
Amended Complaint”). Presently before the Court are Plaintiff’s motion for reconsideration, Dkt.
No. 73 (“Motion for Reconsideration”),1 and motion for recusal and reconsideration, Dkt. No. 77
(“Motion for Recusal”). Defendants filed a response to the Motion for Reconsideration. Dkt.
No. 74 (“Opposition”). For the following reasons, Plaintiff’s motions are denied.
The Court assumes the parties’ familiarity with the background and procedural history of
this action, and will recount only the background necessary for the disposition of the present
motions. For further background on the case, reference is made to the Court’s MemorandumDecision Order dated March 24, 2017. Dkt. No. 69 (“March Order”).
Plaintiff filed two versions of his Motion for Reconsideration. Compare Dkt. No. 71,
with Mot. for Reconsideration. The Court construes the later filing as the operative motion.
The March Order considered the only claims in the Second Amended Complaint that
survived initial review under 28 U.S.C. § 1915(e), which the Court construed as claims that
defendant Gambino deprived Plaintiff of due process by giving false testimony at Plaintiff’s
bench trial. Mar. Order at 4. Defendants moved to dismiss on the ground that Gambino is entitled
to absolute immunity for the testimony he gave (or did not give) at Plaintiff’s trial. Dkt. No. 60
(“Motion to Dismiss”) at 7. Plaintiff filed a motion in response, Dkt. No. 65 (“Responsive
Motion”), which continued to assert a false arrest claim despite the Court having dismissed that
claim in its May 9, 2016 Memorandum-Decision and Order. Resp. Mot. at 7; Dkt. No. 56 (“May
Order”) at 13. Plaintiff also asked the Court to “look at the municipality of Saugerties as a
defendant,” despite the Court having dismissed Plaintiff’s claims against the Town of Saugerties
in its May Order. Resp. Mot. at 10; May Order at 13. The Court granted the Motion to Dismiss,
because Gambino is entitled to absolute immunity under § 1983 for his testimony at trial as a
police officer. Mar. Order at 6–7. The Court also denied the Responsive Motion, which the Court
construed as a motion to reconsider its earlier orders to dismiss Plaintiff’s false arrest claim and
his claims against the Town of Saugerties. Id. at 9–10.
Plaintiff now asks the Court to reconsider its March Order, Mot. for Reconsideration
at 14–16, and also to reconsider its text order dated April 25, 2017, Mot. for Recusal at 6–7; see
also Dkt. No. 76 (“Text Order”). The Text Order struck Plaintiff’s reply to the Opposition,
because Plaintiff did not request permission to file the reply. Text Order. Finally, Plaintiff has
requested that the Court recuse itself from this action, because the Court “has created a false path
to assist the defense.” Mot. for Recusal at 12.
A. Motion for Reconsideration
A motion for reconsideration may be granted where there is “an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent a
manifest injustice.” Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers &
Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (quoting Virgin Atl. Airways, Ltd. v. Nat’l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). “The standard for granting a motion for
reconsideration ‘is strict and reconsideration will generally be denied unless the moving party can
point to controlling decisions or data that the court overlooked—matters, in other words, that
might reasonably be expected to alter the conclusion reached by the court.’” Advanced Fiber
Techs. Tr. v. J&L Fiber Servs., Inc., 751 F. Supp. 2d 348, 382–83 (N.D.N.Y. 2010) (Kahn, J.)
(quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). “[R]econsideration
‘should not be granted where the moving party seeks solely to relitigate an issue already
decided.’” Id. at 383 (quoting Shrader, 70 F.3d at 257).
B. Motion for Recusal
A request for recusal necessarily implicates 28 U.S.C. §§ 144 and 455, the statutes which
detail the circumstances under which a federal judge may properly be disqualified from a
particular matter based upon an appearance of partiality, bias, or prejudice. Jemzura v. Publ.
Serv. Comm’n, 961 F. Supp. 406, 410 (N.D.N.Y. 1997). A judge may be required to recuse
herself based upon “personal bias or prejudice . . . against [a party] or in favor of any adverse
party.” § 144. Section 455 warrants recusal “in any proceeding in which [a judge’s] impartiality
might reasonably be questioned,” § 455(a), or where a judge has “a personal bias or prejudice
concerning a party,” § 455(b)(1). Sections 144 and 455 are complementary, and the grounds for
disqualification are the same under both statutes. Jemzura, 961 F. Supp. at 410 (citing Apple v.
Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987)). The question of whether an
appearance of impartiality exists is an objective one, based on “what a reasonable person
knowing all the facts would conclude.” Chase Manhattan Bank v. Affiliated FM Ins. Co., 343
F.3d 120, 127 (2d Cir. 2003).
The Supreme Court has emphasized that where grounds for recusal are comprised of
“judicial rulings [and] routine trial administration efforts,” recusal is inappropriate absent proof
that those rulings either “relied upon knowledge acquired outside such proceedings [or] displayed
deep-seated and unequivocal antagonism that would render fair judgment impossible.” Liteky v.
United States, 510 U.S. 540, 556 (1994); see also Kampfer v. Gokey, 955 F. Supp. 167, 170
(N.D.N.Y. 1997). Simply put, the mere rendering of adverse rulings against a party is an
insufficient basis upon which to find the appearance of bias. In re IBM Corp., 618 F.2d 923, 929
(2d Cir. 1980).
A recusal decision rests within the sound discretion of the judge whose recusal is sought.
United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). In addition, a judge has “an
affirmative duty . . . not to disqualify himself unnecessarily.” SEC v. Grossman, 887 F. Supp.
649, 658–59 (S.D.N.Y. 1995) (citing Nat’l Auto Brokers Corp. v. General Motors Corp., 572
F.2d 953, 958 (2d Cir. 1978)).
As to the Court’s March Order, Plaintiff “seeks solely to relitigate  issue[s] already
decided.” Advanced Fiber Techs. Tr., 751 F. Supp. 2d at 383. He fails to point to any intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or
prevent a manifest injustice with respect to the Court’s findings. The Court properly found that
Gambino is entitled to absolute immunity under § 1983 with respect to his testimony at trial
because he is a police officer. Mar. Order at 6–8. Moreover, the Court properly found that
Plaintiff cannot relitigate claims for false arrest and against the Town of Saugerties, which were
dismissed in 2016. May Order at 13.
As to the Court’s Text Order, “reply papers on non-dispositive motions are not permitted
without the Court’s prior permission” in this District. Bruno v. City of Schenectady,
No. 12-CV-285, 2014 WL 2707962, at *3 (N.D.N.Y. June 16, 2014) (citing L.R. 7.1(g),
7.1(b)(2)). The Motion for Reconsideration is non-dispositive because “the relief requested is
simply reconsideration of a decision, not the litigation of a new dispositive motion.” Id. Plaintiff
did not receive permission from this Court to file a reply to the Opposition to his Motion for
Reconsideration. Therefore, the Court properly struck his reply pursuant to Local Rules 7.1.(b)(2)
and 7.1(g). Plaintiff does point to any law to the contrary, but merely states that the Court’s Text
Order is indicative of its improper bias. Mot. for Recusal at 6–7.
Plaintiff’s allegations of bias and impartiality are not specified, other than the repeated
claim that the Court “has created a false path to assist the defense.” Id. at 12. However, nothing
in Plaintiff’s submissions or the record suggests that this Court harbors either favoritism toward
Defendants or antagonism toward Plaintiff, such that the Court’s impartiality could reasonably be
questioned. Liteky, 510 U.S. at 555. The Plaintiff’s claims of impartiality are not supported by
any facts and can, at most, be described as “remote, contingent or speculative” and are not the
type of interest that reasonably brings the Court’s impartiality into question. In re Drexel
Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988). Recusal is therefore not required
and would be inappropriate under either § 144 or § 455(b).
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motions for Reconsideration (Dkt. Nos. 71, 73) are
DENIED; and it is further
ORDERED, that Plaintiff’s Motion for Recusal and Reconsideration (Dkt. No. 77) is
DENIED; and it is further
ORDERED, that Plaintiff’s Letter Motion for Expedited Consideration is DENIED as
moot (Dkt. No. 78); and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
September 28, 2017
Albany, New York
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