Whitehead v. Netflix Inc. et al

Filing 7

ORDER: The Court denies Plaintiff's motion for recusal (ECF No. 5), but grants his second motion for an extension of time to pay the fees (ECF 4). Plaintiff must pay the fees or submit an IFP application within 30 days. No further extensions will be granted. The Court certifies under 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. (Filing Fee due by 4/7/2022., In Forma Pauperis (IFP) Application due by 4/7/2022.) Motions terminated: #5 MOTION for Recusal, filed by David Louis Whitehead., #4 MOTION for Extension of Time, filed by David Louis Whitehead. (Signed by Judge Laura Taylor Swain on 3/8/2022) (sac) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DAVID LOUIS WHITEHEAD,
Plaintiff,
-against-

22-CV-0883 (LTS)
ORDER

NETFLIX INC., et al.,
Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:

Plaintiff, who is a resident of Louisiana, filed this action pro se. He submitted the
complaint without the $402.00 in fees required to file a civil action in this court or a request to
proceed in forma pauperis (IFP). Instead, he submitted a motion requesting a 60-day extension
of time to pay the fees, or in the alternative, to allow him to submit an IFP application. (ECF 2.)
On February 3, 2022, the Court denied Plaintiff’s motion for a 60-day extension of time to pay
the fees and directed him, within 30 days, to pay the fees or, if he is unable to pay the fees,
submit an IFP application. (ECF 3.) That order specified that failure to comply would result in
dismissal of the complaint.
In response to the order, on February 28, 2022, Plaintiff filed a motion for recusal (ECF
5) and a renewed motion for an extension of time to pay the fees (ECF 4). After reviewing the
arguments in Plaintiff’s submissions, the Court denies the motion for recusal but grants the
motion for an extension of time. The Court directs Plaintiff to pay the fees or submit an IFP
application within 30 days.

DISCUSSION
A.

Motion For Recusal
A judge is required to recuse herself from “any proceeding in which [her] impartiality

might reasonably be questioned.” 28 U.S.C. § 455(a). When a judge’s impartiality is questioned
on bias or prejudice grounds, “what matters is not the reality of bias or prejudice but its
appearance.” Liteky v. United States, 510 U.S. 540, 548 (1994). That is, recusal is warranted if
“an objective, disinterested observer fully informed of the underlying facts . . . [would] entertain
significant doubt that justice would be done absent recusal.” United States v. Yousef, 327 F.3d
56, 169 (2d Cir. 2003) (internal quotation marks and citation omitted).
The showing of personal bias to warrant recusal must ordinarily be based on
“extrajudicial conduct . . . not conduct which arises in a judicial context.” Lewis v. Tuscan Dairy
Farms, Inc., 25 F.3d 1138, 1141 (2d Cir. 1994) (internal quotation marks and citation omitted).
And “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”
Liteky, 510 U.S. at 555 (citation omitted); see Fulton v. Robinson, 289 F.3d 188, 199 (2d Cir.
2002) (affirming denial of recusal motion filed in case by plaintiff where judge had ruled against
him on all his motions and where plaintiff had “speculated that the judge may have been
acquainted with [him]”). Moreover, because recusal “necessarily results in a waste of the judicial
resources which have already been invested in the proceeding,” In re Int’l Business Machines
Corp., 618 F.2d 923, 933 (2d Cir. 1980), a judge is “as much obliged not to recuse [her]self
when it is not called for as [s]he is obligated to when it is.” In re Drexel Burnham Lambert, Inc.,
861 F.2d 1307, 1312 (2d Cir. 1988).
Plaintiff seeks the Court’s recusal from this action, contending the following:
DUE TO APPEARANCE OF JUDICIAL BIAS FOR NETFLIX AND
HOLLYWOOD STUDIOS ASSOCIATED WITH PRESIDENT BARRACK
OBAMA AND MICHELLE OBAMA’S ENTERTAINMENT COMPANY
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HIGHER GROUNDS HAVING SUBSTANTIAL FINANCIAL CONTRACTS
WITH NETFLIX DEFENDANTS, FURTHER NOTING THAT THE COURT
WAS APPOINTED TO THE FEDERAL BENCH BY MR. OBAMA. 28 U.S.C.
SECTION 455A, B1.
(ECF 5, at 1) (capitalization and punctuation in original). Plaintiff further asserts that the Court
has demonstrated judicial bias against him by transferring his related case, Whitehead v.
Buttigieg, ECF 1:21-CV-8669, 15 (S.D.N.Y. Jan. 31, 2022) (Whitehead I), to the United States
District Court for the Western District of Louisiana, where he is barred from filing cases.
An objective, well-informed observer could not reasonably question the Court’s
impartiality in this matter based on Plaintiff’s contentions. First, Plaintiff’s assertion that the
Court was appointed by former President Obama is incorrect. Even if that assertion were true,
however, the appointment of the Court by a particular President would not be relevant to an
impartiality determination in this case. Second, the fact that the Court transferred Whitehead I to
the Western District of Louisiana has no bearing as such a judicial ruling does not constitute a
valid basis for a bias or partiality motion. See Liteky, 510 U.S. at 544. As Plaintiff alleges no
facts to suggest a “deep-seated favoritism or antagonism that would make fair judgment
impossible,” id at 555, a reasonable and objective observer would perceive only Plaintiff’s
dissatisfaction with the transfer of Whitehead I, and an attempt to preemptively dissuade the
Court from taking action in this matter, see United States v. Arena, 180 F.3d 380, 398 (2d Cir.
1999). Because Plaintiff does not allege a sufficient basis for recusal in this case, the Court
denies the motion for recusal.
B.

Fees
A party commencing any civil action, suit, or proceeding in a district court of the United

States, except an application for writ of habeas corpus, must pay $402.00 in fees – a $350.00
filing fee plus a $52.00 administrative fee. See 28 U.S.C. § 1914(a). An action may proceed

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without prepayment of the fee only if the litigant is granted leave to proceed IFP under 28 U.S.C.
§ 1915(a). The federal IFP statute, 28 U.S.C. § 1915, is intended to guarantee that no citizen
shall be denied access to the courts “solely because his poverty makes it impossible for him [or
her] to pay or secure the costs.” Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342
(1948). The statute ensures “that indigent persons have equal access to the judicial system” as
those who can afford payment of court fees. Hobbs v. Cnty. of Westchester, No. 00-CV-8170
(JSM), 2002 WL 868269, at *1 (S.D.N.Y. May 3, 2002).
Plaintiff renews his request for an extension of time to pay the filing fees. He asserts the
following: (1) that he is unemployed, (2) the Internal Revenue Service has “held up” his tax
return, (3) he will obtain employment in the near future and need additional time to pay the fees,
(4) requesting IFP “would allow the district court to rule on the merits of the case,” (5) he needs
an additional 30 days to pay the fees, and (6) the defendants would not be prejudiced by the
Court granting his request. (ECF 4, at 1-2.)
Plaintiff’s assertions do not provide a sufficient basis to further delay this case until he is
able to pay the filing fees. As noted above, when a litigant is unable to pay the fees, he may
request leave to proceed without prepayment of the fees. Here, Plaintiff pleads poverty but
voices his disclination to submit an IFP application because he fears the dismissal of this case on
the merits. Plaintiff fails to allege a sufficient basis to stay this case.
Although the Court finds Plaintiff’s reasons for an extension inadequate, because he is
proceeding without the benefit of an attorney, the Court will grant him a 30-day extension to
either pay the fees or submit an IFP application. If Plaintiff fails to comply with this order within
the time allowed, the action will be dismissed. No further extensions will be granted.

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CONCLUSION
The Court denies Plaintiff’s motion for recusal (ECF No. 5), but grants his second motion
for an extension of time to pay the fees (ECF 4). Plaintiff must pay the fees or submit an IFP
application within 30 days. No further extensions will be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket.
SO ORDERED.
Dated:

March 8, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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