Dimps v. Taconic Correctional Facility

Filing 108

ORDER: denying 106 Motion for Recusal. For the aforementioned reasons, the Court DENIES Plaintiff's motion to recuse. The Clerk of the Court is kindly directed to terminate the motion at ECF No. 106. The Clerk of Court is also directed to mail a copy of this order to pro se Plaintiff at the address on the docket and show service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 7/27/2023) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
7/27/2023

SHIRLEY DIMPS,
Plaintiff,
-against-

17-cv-8806 (NSR)

TACONIC CORRECTIONAL FACILITY, NYS
DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION, NYS
DEPARTMENT OF CIVIL SERVICE, AND CSEA,
INC.,

ORDER

Defendants.
NELSON S. ROMÁN, United States District Judge:
Before the Court is Shirley Dimps’s (“Plaintiff”) motion requesting that the Honorable
Nelson S. Román recuse himself from presiding over the instant matter. (See ECF No. 106 and
107.) For the reasons stated below, the Court DENIES Plaintiff’s motion.
BACKGROUND
On February 5, 2020, the Second Circuit issued a Summary Order (C.A. No. 19-0975-cv;
ECF No. 80) vacating the Court’s March 27, 2019 judgment (ECF No. 74) to the extent it denied
Plaintiff leave to amend her Title VII claims against the New York State Department of
Corrections and Community Supervision (“DOCCS”), but affirmed the Court’s dismissal of
Plaintiff’s American with Disabilities Act (“ADA”), the Age Discrimination and Employment Act
(“ADEA”), and 42 U.S.C. § 1981 claims against Taconic Correctional Facility (“Taconic”), the
New York State Department of Correction and Community Supervision (“DOCCS”), the New
York State Department of Civil Service (“DCS”) (together, the “State Defendants”), and the Civil
Service Employees Association, Inc. (“CSEA”). (ECF No. 80 at 2.)
1

Following the Second Circuit’s Summary Order, the Court reopened the case and issued
an order on February 7, 2020 directing Plaintiff to file a Second Amended Complaint by March
23, 2020 that alleges Title VII claims against DOCCS. (ECF No. 77.) Because Plaintiff failed to
file a Second Amended Complaint by that deadline, the Court issued an order to show cause for
want of prosecution on February 2, 2023. (ECF No. 88.) The Order to Show Cause was vacated
after Plaintiff wrote to the Court indicating that she intended on filing a Second Amended
Complaint and wanted to continue prosecuting her case. (ECF No. 91.) Following requests for
extensions, which the Court granted, the Court directed Plaintiff to file her Second Amended
Complaint by May 8, 2023. (ECF No. 95.) On May 5, 2023, Plaintiff filed a Second Amended
Complaint (ECF No. 96.)
On May 10, 2023, the Court denied Plaintiff’s request to amend her pleadings in order to
assert ADA, ADEA, Section 1981 violations against individual DOCCS supervisors and/or
DOCCS. (ECF No. 99.) However, the Court granted Plaintiff's request to add a paragraph to the
Statement of Facts as specified in her May 8, 2023 letter docketed at ECF No. 97. (ECF No. 99.)
On June 28, 2023, the Court granted Defendants leave to file a motion to dismiss the
Second Amended Complaint, and issued a briefing schedule on the motion as follows: Defendants
are to serve (not file) opening papers on or before August 30, 2023; Plaintiff is to serve (not file)
opposition papers on or before October 16, 2023; Defendants are to serve their reply papers on
October 31, 2023. (ECF No. 105.)
DISCUSSION
Now before the Court is Plaintiff’s notice of motion requesting that the Court recuse itself
because Plaintiff, inter alia, argues that the Court is biased for granting Defendants leave to file a
motion to dismiss instead of scheduling a pre-motion conference, and because the Court did not

2

grant Plaintiff’s request to commence discovery.

Plaintiff also states that “Your Honor is

influencing this case by granting the dismissal of the Second Amended Employment
Discrimination Complaint which was not requested by the Attorney General Office.” (ECF No.
107 at 5.) Plaintiff argues that the Court has shown “favoritism, influencing/aiding the case for
the defendants, lack of making fair and impartial decisions, being prejudice and bias in the case
[sic].” (Id. at 8.)
By way of background, 28 U.S.C. § 455(a) requires that a federal judge “shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.” This section
requires recusal where “an objective, disinterested observer fully informed of the underlying facts
[would] entertain significant doubt that justice would be done absent recusal[.]” Shim-Larkin v.
City of New York, No. 16-CV-6099 (AJN), 2020 WL 7646889, at *1 (S.D.N.Y. Dec. 23, 2020)
(citing United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992); see also United States v.
Bayless, 201 F.3d 116, 126 (2d Cir. 2000). Recusal motions are committed to the sound discretion
of the district court. See Lovaglia, 954 F.2d at 815. In considering recusal motions, “judges must
be alert to the possibility that those who would question their impartiality are in fact seeking to
avoid the consequences of the judge's expected adverse decision.” Id. (internal marks omitted)
(citing H. R. Rep. No. 1453, 93d Cong., 2d Sess., reprinted in 1974 U.S.C.C.A.N. 6351, 6355).
The Court notes that “[d]isagreement with the decision[s] of the Court is not a basis for
recusal.” Straw v. Dentons US LLP, No. 20-CV-3312 (JGK), 2020 WL 4004128, at *1 (S.D.N.Y.
July 15, 2020) (citing Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone
almost never constitute a valid basis for a bias or partiality motion . . . Almost invariably, they are
proper grounds for appeal, not for recusal.”). Plaintiff appears to seek recusal on the basis that she
disagrees with the Court’s decision to issue briefing schedule on the motion to dismiss and for not

3

scheduling a conference and allowing the case to proceed to discovery at this time. (See ECF No.
107.) Plaintiff’s disagreement with the decisions of this Court—and the basis of her recusal
motion—are grounded on her misunderstanding of federal procedure and the life cycle of her case.
To be sure, the Court advises Plaintiff that her Second Amened Complaint has not been
dismissed—rather, the briefing on the motion to dismiss is pending. After briefing is complete,
the Court will assess the arguments and decide whether Plaintiff’s allegations in the Second
Amended Complaint adequately pleads causes of action such that the case may proceed into the
discovery stage.
Plaintiff is advised that although she is a pro se litigant, it is her obligation to fully
understand the procedural posture of her case along with Court’s individual rules, the Southern
District of New York’s Local Rules, and the Federal Rules of Civil Procedure. Plaintiff is highly
encouraged to contact the New York Legal Assistance Group’s (NYLAG) Clinic for Pro Se
Litigants. See Burhans v. Amler, No. 06 CIV. 8325 (SCR), 2009 WL 10741846, at *2 (S.D.N.Y.
May 14, 2009) (“At times, it is understandably difficult for pro se litigants to participate effectively
in our legal system, and for this reason, the Court takes pains to afford pro se litigants great liberty
in presenting and pursuing their claims. At the same time, the Court expects and requires that all
litigants—pro se or not—be forthright and honest with the Court.”) The New York Legal
Assistance Group’s (NYLAG) Clinic for Pro Se Litigants in the Southern District of New York,
which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing
themselves in civil lawsuits in this court. The clinic is run by a private organization; it is not part
of, or run by, the Court. It cannot accept filings on behalf of the Court, which must still be made
by any pro se party through the Pro Se Intake Unit).

4

To receive limited-scope assistance from the clinic, parties may complete the clinic's intake
form on their computer or phone at: https://tinyurl.com/NYLAG-ProSe-OI. If parties have
questions regarding the form or they are unable to complete it, they may leave a voicemail at (212)
659-5190. The Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court
is closed. A copy of the flyer with details of the clinic is attached to this order.
CONCLUSION
For the aforementioned reasons, the Court DENIES Plaintiff’s motion to recuse. The Clerk
of the Court is kindly directed to terminate the motion at ECF No. 106. The Clerk of Court is also
directed to mail a copy of this order to pro se Plaintiff at the address on the docket and show service
on the docket.

Dated: July 27, 2023
White Plains, NY

5

Services Provided for Self-Represented Litigants in the Southern
District of New York
The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York provides free limited legal
assistance to individuals who are representing themselves or planning to represent themselves in civil lawsuits
in federal court in Manhattan and White Plains. The clinic is staffed by attorneys, law students, and paralegals.
Information given to clinic staff is confidential.

Clinic Staff Can:

Clinic Staff Cannot:



















Advise on filing cases in federal court,
including on the issue of whether a case
should be filed in the Southern District of
New York or somewhere else;
Provide legal advice in response to questions
that come up at any stage of litigation;
Assist in getting additional information or
research into the legal issue in your case;
Review and explain court orders and filings
by your opponent, and provide an overview of
the federal legal process in civil cases
generally;
Assist with motions, discovery, and strategy;
Assist with getting ready for depositions,
pretrial conferences, mediations, and court
appearances;
Provide forms and instructions manuals;
In appropriate cases, help you retain pro bono
counsel;
In appropriate cases, represent you in a
mediation through the Southern District’s
Alternative Dispute Resolution Program, or a
court-ordered settlement conference;
In appropriate cases, represent you at a
deposition; and
In appropriate cases, provide referrals to
other agencies and organizations that provide
civil legal services and/or social services.

Use of the NYLAG Legal Clinic for Pro Se Litigants is separate from
any appointment of counsel by the court. A request for appointment
of counsel requires a separate application and the decision whether
to appoint counsel is entirely up to the court. Even if a litigant has
consulted with Clinic staff, unless they retain other counsel and that
counsel enters a notice of appearance, they remain unrepresented;
are responsible for doing whatever is necessary in connection with
the case; and must still submit all court papers to the Pro Se Intake
Unit, located in Room 105 of the Daniel Patrick Moynihan
Courthouse, 40 Foley Square, New York, New York, or by following
the court’s instructions for filing via email as a pro se litigant.










Assist with federal civil cases that belong in a
different federal court, such as the Eastern District of
New York, which covers of New York, which covers
Brooklyn, Queens, Staten Island, and Nassau and
Suffolk Counties;
Assist with an appeal of your federal case;
Assist with state court cases, bankruptcy court cases,
or criminal cases;
Pay any of the costs associated with filing or
defending a lawsuit in federal court;
File documents with the court on your behalf;
Appear on your behalf other than representation at a
mediation through the Southern District’s Alternative
Dispute Resolution Program, a court-ordered
settlement conference, or, in appropriate cases, a
deposition;
Write court documents for you; or
Conduct an investigation into the facts of your case.

Clinic Staff May Decline Assistance If:



NYLAG has already given advice to your opponent;



Providing assistance would conflict with the New York
Rules of Professional Conduct;



Your income and/or assets are high enough to allow you
to retain private counsel; or



NYLAG determines, in its professional legal judgement,
that (i) you have refused to cooperate with the Clinic’s
counsel or follow the Clinic’s advice; (ii) any assistance
would be unreasonably difficult for NYLAG to carry out;
or (iii) your case is or will become frivolous,
unreasonable, groundless, or without merit.

Your legal problem is beyond the scope of matters
handled by the clinic;

New York: Thurgood Marshall United States Courthouse | Room LL22 | 40 Foley Square | New York, NY 10007 | [phone] |
https://nylagoi.legalserver.org/modules/matter/extern_intake.php?pid=142&h=cea984&