Smith v. City of New York et al

Filing 31

MEMORANDUM AND ORDER. For the reasons in this Memorandum and Order, the motion for recusal is denied. Denying 29 Motion for Recusal. (Signed by Judge Naomi Reice Buchwald on 4/7/2015) Copies Mailed By Chambers. (rjm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------X
THEODORE SMITH,
Plaintiff,
MEMORANDUM AND ORDER
- against 14 Civ. 2690 (NRB)
CITY OF NEW YORK, et al.
Defendants.
----------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

Plaintiff

Theodore

Smith,

pro

se,

moves

to

recuse

the

undersigned on the basis of personal bias or prejudice against
him.

See 28 U.S.C. §§ 144, 455.

For the following reasons, the

motion is denied.

BACKGROUND
This is the second federal lawsuit that Smith has brought
against the New York City Department of Education (“DOE”), and
related persons and agencies, to challenge adverse action taken
against him in his former capacity as a public schoolteacher.
The

first

lawsuit,

which

Smith

commenced

summary judgment for the defendants.

in

2006,

ended

in

See Smith v. N.Y.C. Dep’t

of Educ., 808 F. Supp. 2d 569 (S.D.N.Y. 2011) (“Smith I”).

The

federal claims in Smith I were dismissed principally under the
doctrine of collateral estoppel, as the Court determined that
factual

findings

of

two

DOE

disciplinary

hearings

Smith’s alleged misconduct had preclusive effect.
577-78, 580.

concerning
See id. at

The results of both of those disciplinary hearings

had been affirmed by state courts before this Court ruled on the
summary judgment motion.

See id. at 574-76 (summarizing the

hearings and state-court decisions).
Smith

commenced

this

second

federal

lawsuit,

which

was

assigned to the undersigned because it is related to the first,
in

2014.

Defendants

have

moved

to

dismiss

Smith’s

second

amended complaint on the grounds that its claims are precluded
by the results of the DOE disciplinary hearings and the prior
litigations in state and federal court, and, in the alternative,
that it fails to state a plausible claim upon which relief can
be granted.

Because the Court has granted Smith two extensions

of time to file his opposition papers, the motion to dismiss is
still being briefed.

In the interim, on March 30, 2015, Smith

filed the instant motion for recusal.

DISCUSSION
Smith’s motion for recusal principally contends that the
Court

exhibited

bias

and

prejudice

2

in

the

Smith

I

opinion

because it relied on (1) allegations and findings made in the
disciplinary hearings and (2) allegations made by Smith’s former
lawyer, David M. Kearney, in applying to withdraw as counsel in
the first federal case.

See Smith Memorandum of Law, dated

March 28, 2015 (“Smith Mem.”), at 12-16.

Smith also argues that

the Court exhibited bias and prejudice in remarks made at a
pretrial conference.

See Declaration of Theodore Smith, dated

March 30, 2015 (“Smith Decl.”), at ¶ 18 (“Judge Buchwald stated
how I looked like a gym teacher and remarked that she didn’t
think Kearney had any reason to lie.”); Smith Mem. at 15 (“Judge
Buchwald remarked that Plaintiff, ‘looked like a gym teacher,’
and

also

made

it

clear

that

Kearney’s

allegations

would

be

viewed by her as truthful, because, ‘why would he lie.’”).
A
whether

federal

judge

recusal

is

has

a

duty

warranted.

in
See

every
28

case

U.S.C.

to

determine

§ 455;

In

re

Initial Pub. Offering Sec. Litig., 174 F. Supp. 2d 70, 74-75
(S.D.N.Y. 2001).1
proceeding

in

A judge must disqualify herself from “any

which

[her]

impartiality

might

reasonably

be

questioned,” 28 U.S.C. § 455(a), including circumstances where
she “has a personal bias or prejudice concerning a party,” id.

1

Although Smith relies on the procedure set out in 28 U.S.C. § 144, that
statutory mechanism to disqualify a judge is arguably unavailable to pro se
parties because it requires the submission of an attorney’s certificate of
good faith.
See Williams v. N.Y.C. Hous. Auth., 287 F. Supp. 2d 247, 249
(S.D.N.Y. 2003). This is of no substantive importance here, however, because
the standard for disqualification under 28 U.S.C. § 144 is the same as that

3

§ 455(b)(1).

Recusal

is

required

when

“an

objective,

disinterested observer fully informed of the underlying facts[]
would entertain significant doubt that justice would be done
absent recusal,” or, in other words, when “a reasonable person,
knowing all the facts, would question the judge’s impartiality.”
United

States

(internal

v.

Yousef,

quotation

marks

327

F.3d

and

other

56,

169

(2d

brackets

Cir.

2003)

omitted);

see,

e.g., ISC Holding AG v. Nobel Biocare Finance AG, 688 F.3d 98,
107 (2d Cir. 2012).
Only in exceptional situations can decisions rendered, or
views developed, in the ordinary course of judicial proceedings
create
alone

disqualifying
almost

partiality

never

motion.

bias

or

prejudice.

constitute
. . .

a

Almost

valid

basis

invariably,

grounds for appeal, not for recusal.”
510 U.S. 540, 555 (1994).

“[J]udicial
for
they

a
are

rulings
bias

or

proper

Liteky v. United States,

Furthermore, “opinions formed by the

judge on the basis of facts introduced or events occurring in
the course of the current proceedings, or of prior 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.

“Accordingly, recusal is

not warranted where the only challenged conduct ‘consists of

under 28 U.S.C. § 455(b)(1).
326, 333 (2d Cir. 1987).

See Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d

4

judicial

rulings,

routine

trial

administration

efforts,

and

ordinary admonishments . . . to counsel and witnesses,’ where
the conduct occurs during judicial proceedings, and where the
judge ‘neither (1) relies upon knowledge acquired outside such
proceedings

nor

(2)

displays

deep-seated

and

unequivocal

antagonism that would render fair judgment impossible.’”
v.

Razmilovic,

738

F.3d

14,

29-30

(2d

Cir.

2013)

S.E.C.

(brackets

omitted) (quoting Liteky, 510 U.S. at 556), cert. denied, 134 S.
Ct. 1564 (2014).
Under this standard, the proceedings and opinion in Smith I
do not even arguably warrant recusal.

To the extent that Smith

took issue with the decision to afford preclusive effect to the
findings of the disciplinary hearings, or any other aspect of
the opinion, the proper remedy would have been to appeal (which
he did not).
reasonable,

But regardless of the merits of that opinion, no
disinterested

observer

could

conclude

that

it

relied

on

displayed bias or prejudice.
Smith’s

suggestion

that

the

Smith

I

decision

Kearney’s May 23, 2007 affirmation in support of his application
to withdraw as counsel not only does not provide a basis for
recusal, it also mischaracterizes the basis of that decision.
Kearney’s affirmation, and its underlying allegation that Smith
uttered

death

threats

against

5

an

arbitrator

in

the

first

disciplinary hearing, was of significance in both disciplinary
hearings.2

But the issue before this Court in Smith I was not

whether Kearney’s allegation was truthful, but whether it was
appropriate to relitigate issues that had been decided in prior
proceedings.

See Smith I, 808 F. Supp. 2d at 577-78, 580.

Finally, the remarks that Smith attributes to the Court do
not

establish

specifically

any
recall

antagonism
those

to

Smith.

remarks,

purposes that they were made.3

but

The

Court

assumes

for

does

not

present

First, an offhanded comment that

Smith “looked like a gym teacher,” Smith Decl. ¶ 18, hardly
evidences bias.

Rather, if said, the comment was intended as a

compliment, i.e., that Smith appeared physically fit.

Second,

the issue of Kearney’s credibility, which has been of obvious
relevance
appropriate

to

the

subject

many
for

proceedings
discussion

involving
at

a

Smith,

status

was

an

conference.

Neither the Court’s question “why would [Kearney] lie,” Smith
Mem. at 15, nor the Court’s expression of doubt that Kearney had
“any reason to lie,” Smith Decl. ¶ 18, bespeaks partiality or
bias.

2

Although Kearney’s affirmation was originally submitted to this Court
ex parte, Smith provided it to the DOE in 2007, and Smith has filed a copy of
it in support of the instant motion. See Smith Mem. at 4; Smith Decl. Ex 10.
3
The alleged remarks were made at a November 4, 2009 status conference.
Consistent with the Court’s practice to hold status conferences in civil
cases off the record, no court reporter was present to transcribe the
proceedings. See Smith Decl. ¶ 18; Letter from Judge Buchwald to Mr. Smith,
dated March 9, 2015, Smith Decl. Ex. 18.
The Court recalls that Kearney’s
allegations were one topic of discussion.

6

"A judge is as much obliged not to recuse
is not called for as

[she]

[herself] when it

is obliged to when it

Drexel Burnham Lambert Inc.,

861 F.2d 1307, 1312

is.

11

In re

(2d Cir. 1988).

Because Smith's submission does not provide any proper basis for
recusal,

and the Court is not aware of any other disqualifying

fact, recusal would be inappropriate.

CONCLUSION

For

the

foregoing

reasons,

the

motion

for

recusal

lS

denied.

Dated:

New York, New York
April 7, 2015

L2/~
~~achwd
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

7

A copy of the foregoing Memorandum and Order has been mailed on
this date to the following:
Plaintiff
Theodore Smith
420 E. 61st Street, Apt. 37C
New York, NY 10065
Attorney for Defendants
Mark A. Osmond, Esq.
NYC Law Department
Office of the Corporation Counsel
100 Church Street
New York, NY 10007

8