Jean Pierre v. Lieberman et al

Filing 31

OPINION AND ORDER re: 21 MOTION for Recusal, filed by Gertrude Jean Pierre, 20 APPLICATION for the Court to Request Counsel, filed by Gertrude Jean Pierre. Because plaintiff's motion is based on events that occurred in the cours e of judicial proceedings, she has not asserted any valid ground for recusal and her motion to disqualify me is denied. Plaintiff has not demonstrated that the case has sufficient merit to warrant the appointment of pro bono counsel. For the reason s stated in the Report and Recommendation of even date, it appears that there are fundamental defects in the complaint that cannot be remedied by amendment. Therefore, plaintiff's motion for the appointment of pro bono counsel is denied. Althoug h plaintiff has filed a motion to proceed without prepaying fees or costs, this motion is moot. According to the Docket Sheet, the filing fees in this action have already been paid (See Docket Entry, dated July 8, 2016). Therefore, plaintiff's a pplication to proceed in forma pauperis is denied as moot. Accordingly, for all the foregoing reasons, plaintiff's motions to disqualify me from this action (D.I. 21), for appointment of counsel and for leave to proceed in forma pauperis (D.I. 20) are denied. (Signed by Magistrate Judge Henry B. Pitman on 6/14/2017) Copies Mailed and Transmitted By Chambers. (ras)

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i '. 0:2DC SDNY

ti DOCUMENT

n~;::LECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x
GERTRUDE JEAN PIERRE,
Plaintiff,

16 Civ. 5473

-against-

(GBD) (HBP)

OPINION
AND ORDER

FREDERICK LIEBERMAN and
CHASE INVESTMENT SERVICES,
CORPORATION,
Defendants.

-----------------------------------x
PITMAN, United States Magistrate Judge:

By a Report and Recommendation of even date,

I have

recommended that the complaint in this matter be dismissed for
failure to state a claim.

The reader's familiarity with the

Report and Recommendation is assumed.

In this Order, I address

several non-dispositive motions made by plaintiff.
Plaintiff has filed motions seeking (1)

to disqualify

me from the action (Motion for Recusal of Magistrate Judge Henry
Pitman, dated Oct. 25, 2016 (Docket Item ("D.I.")
Recusal Motion") ,

( 2) the appointment of

leave to proceed in forma pauperis

J2..IQ

21)

("Pl.

bono counsel and ( 3)

(Application for the Court to

Request Pro Bono Counsel and Application to Proceed Without
Prepaying Fees or Costs, dated Oct. 9, 2016 (D.I. 20)

("Pl.

Motions for Counsel & Waiver of Fees").

For the reasons set

forth below, plaintiff's motions are all denied.

I.

Motion for Recusal

Plaintiff's motion for recusal is premised on her
assertion that the schedule I set for defendants' motion to
dismiss violated her legal rights 1 and demonstrates that I am
biased against her (Pl. Recusal Motion at 1-2).

The scheduling

order in issue required defendants to file their motion to
dismiss by October 6, 2016 and required plaintiff to file her
opposition on November 4, 2016 (see Memo Endorsement, dated Aug.
24, 2016 (D.I. 12))
following reasons:

Plaintiff objected to the schedule for the
(1) defendants should not be permitted to

move to dismiss because the case should proceed immediately to
trial and (2)

she needed more time to respond to the motion

(Letter from Plaintiff, dated Oct. 14, 2016 (D.I. 22)).
In order to constitute a basis for recusal, the alleged
bias must have an extrajudicial source, i.g., the claim must be

1

Plaintiff argues that I have violated her "human rights as
well as being part of an onslaught against [her] existence" and
goes on to cite various "human rights" including the "right to
liberty and security" and the right "not to be subjected to
torture and/or cruel, inhuman, degrading treatment or punishment"
(Pl. Recusal Motion at 1-2).
2

based on something other than the judge's in-court rulings and
case management decisions.
[T]he fact that Plaintiff-Appellant and Appellants were
unhappy with the district court's legal rulings and
other case management decisions is not a basis for
recusal, and under no circumstances justifies the
utterly unsubstantiated allegations of .
dishonesty .
. and fraud lodged against the district
court.
See In re Int'l Bus. Machs. Corp., 618 F.2d
923, 927 (2d Cir. 1980) ("'The alleged bias and prejudice to be disqualifying [under 28 U.S.C. § 455] must
stem from an extrajudicial source and result in an
opinion on the merits on some basis other than what the
judge has learned from his participation in the
case. ' ") (quoting United States v. Grinnell Corp., 3 8 4
U.S. 563, 583, 86 S.Ct. 1698, 16 L.E.2d 778 (1966)).
Watkins v.
order)

Smith,

561 F. App'x 46,

(2d Cir.

2014)

(summary

(second alteration in original); see Securities & Exch.

Comm'n v. Razmilovic,
ingly,

47

738 F.3d 14,

29-30

(2d Cir.

2013)

("Accord-

recusal is not warranted where the only challenged conduct

'consist[s]
efforts,

of judicial rulings,

routine trial administration

and ordinary admonishments .

. to counsel and to

witnesses,' where the conduct occurs during judicial proceedings,
and where the judge 'neither

(1)

relie[s]

upon knowledge acquired

outside such proceedings nor

(2)

display[s]

deep-seated and

unequivocal antagonism that would render fair judgment impossible. '"

(alterations in original) ) , quoting Li teky v. United

States,
Fin. AG,

510 U.S.

540,

555

(1994);

688 F.3d 98,

107

(2d Cir.

3

ISC Holding AG v. Nobel Biocare
2012); Weisshaus v.

Fagan,

456

F. App'x 32, 35

(2d Cir. 2012)

645 F.3d 519, 520-21

(2d Cir. 2011)

Qualified Settlement Fund,
(~ curiam);

552 F.3d 218,

227-28

Chen v. Chen

(2d Cir. 2009)

473 F.3d 493,

Smith v. City of New York,

(NRB), 2015 WL 1539049 at *2
D.J.).

(~ curiam);

Locascio v. United States,

(~ curiam);

Cir. 2007)

(summary order); Gallop v. Cheney,

(S.D.N.Y. Apr. 7, 2015)

495-96

(2d

14 Civ. 2690
(Buchwald,

See generally 1 Michael Silberberg, Edward M. Spiro &

Judith L. Mogul, Civil Practice in the Southern District of New
York

§

3: 12

(2016-2017 ed.).

Because plaintiff's motion is based on events that
occurred in the course of judicial proceedings, she has not
asserted any valid ground for recusal and her motion to disqualify me is denied.

II.

Motion for Appointment of Counsel

The factors to be considered in ruling on a motion for
P.£Q bono counsel are well settled and include "the merits of

plaintiff's case, the plaintiff's ability to pay for private
counsel,

[plaintiff's] efforts to obtain a lawyer, the availabil-

ity of counsel, and the plaintiff's ability to gather the facts
and deal with the issues if unassisted by counsel." Cooper v. A.
SargentiCo., 877 F.2dl70, 172

(2dCir. 1989).

factor which command[s] the most attention [is]
4

Of these,

"[t] he

the merits."

Cooper v. A. Sargenti Co.,
Sielaff,
1996)

90 Civ.

(Batts,

7659

supra,

(DAB),

877 F.2d at 172; accord Odom v.

1996 WL 208203

D.J.); see Berry v. Kerik,

(S.D.N.Y. Apr. 26,

366 F.3d 85,

2003); Ferrelli v. River Manor Health Care Ctr.,
204

88

(2d Cir.

323 F.3d 196,

(2d Cir. 2003).
Plaintiff has not demonstrated that the appointment of

pro bono counsel is warranted in this case.

Although it appears

that plaintiff lacks the financial resources to retain counsel
privately,

she has not met the other criteria relevant to an

application for Q.IQ bono counsel.

Plaintiff does not provide any

information concerning her efforts to find counsel on her own nor
does she explain why the case is so complex that plaintiff cannot
litigate it without counsel.

Rather, plaintiff asserts that she

has not been able to find counsel due to her belief that an
"onslaught of government employees and major corporations" have
conspired against her
at 2).

(Pl. Motions for Counsel & Waiver of Fees

Most importantly, plaintiff has not demonstrated that the

case has sufficient merit to warrant the appointment of Q.IQ bono
counsel.

For the reasons stated in the Report and Recommendation

of even date,

it appears that there are fundamental defects in

the complaint that cannot be remedied by amendment.

Therefore,

plaintiff's motion for the appointment of Q.IQ bono counsel is
denied.
5

III.

Motion to Proceed
In Forma Pauperis

Although plaintiff has filed a motion to proceed
without prepaying fees or costs,

this motion is moot.

According

to the Docket Sheet, the filing fees in this action have already
been paid (See Docket Entry, dated July 8,

2016).

Therefore,

plaintiff's application to proceed in forma pauperis is denied as
moot.

IV.

Conclusion
Accordingly,

for all the foregoing reasons, plaintiff's

motions to disqualify me from this action (D.I.

21),

for appoint-

ment of counsel and for leave to proceed in forma pauperis

(O.I.

20) are denied.
Dated:

New York, New York
June 14, 2017
SO ORDERED,

HENRY PIT£1AN
United States Magistrate Judge
Copies mailed to:
Ms. Gertrude Jean Pierre
P.O. Box 80411
Stoneham, Massachusetts 02180
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Copies transmitted to:
All counsel

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