Lettieri v. Daniels et al

Filing 10

ORDER: For the reasons stated in the order, Lettieri's motion for recusal, Docket Item 5 , and motions for reconsideration, Docket Items 6 and 9 , are DENIED. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 2/5/2024. (DJ)This was mailed to: the plaintiff.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID C. LETTIERI,
Plaintiff,
v.

23-CV-867-LJV
ORDER

JOEL DANIELS, et al.,
Defendants.
The pro se plaintiff, David C. Lettieri, was a prisoner incarcerated at the
Northeast Ohio Correctional Facility when he commenced this action under Bivens v.
Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 1 Docket
Item 1. He alleges that during his criminal case, his attorney, Joel Daniels, waived his
right to a post-arraignment felony hearing. Id.
On October 16, 2023, the Court dismissed the complaint under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(a). Docket Item 3. Lettieri then moved for reconsideration
of that order, Docket Items 6 and 9; moved for this Court’s recusal, Docket Item 5; and
filed a notice of appeal, Docket Item 7.

On June 14, 2023, a jury found Lettieri guilty of one count of enticement of a
minor in violation of 18 U.S.C. § 2442(b). See United States v. Lettieri, Case No. 21-cr20, Docket Items 146, 150 (W.D.N.Y. June 14, 2023). For several reasons, including
his retention of new counsel, he has not yet been sentenced.
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Since November 2022, Lettieri has filed more than 70 civil complaints and
habeas petitions in this District. The Court recently imposed a filing injunction to
address Lettieri’s pattern of abuse of the judicial process. In re: David C. Lettieri, Case
No. 23-mc-32, Docket Item 18 (W.D.N.Y. Jan. 19, 2024).

For the reasons that follow, Lettieri’s motions are denied. 2
DISCUSSION
I.

MOTION FOR RECUSAL
A judge shall recuse himself “in any proceeding in which his impartiality might

reasonably be questioned” and in any proceeding “[w]here he has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.” 28 U.S.C. § 455. “[R]ecusal motions are committed to the
sound discretion of the district court.” United States v. Lovaglia, 954 F.2d 811, 815 (2d
Cir. 1992) (citation omitted).
Lettieri asserts several grounds for recusal: (1) that he has sued this Court in
several other civil actions; (2) that the Court is conspiring with the government; and (3)
that the Court has made statements to which Lettieri objects. Docket Item 5. Those are
not bases for recusal here.
First, “a judge is not required to recuse him- or herself simply because a litigant
before the judge has filed suit or made a complaint against him or her.” Jenkins v.
Sladkus, 2004 WL 1238360, at *1 (S.D.N.Y. June 3, 2004). Second, “bald allegations”

Despite Lettieri’s notice of appeal, this Court retains the power to consider his
pending motions under Federal Rule of Civil Procedure 62.1, which provides that when
a litigant timely moves for relief while an appeal is pending, the district court may “(1)
defer considering the motion; (2) deny the motion; or (3) state either that it would grant
the motion if the court of appeals remands for that purpose or that the motion raises a
substantial issue.” In fact, the Second Circuit has stayed at least one of Lettieri’s
appeals pending resolution of a motion for reconsideration before this Court. Lettieri v.
Auricchio, Case No. 23-8094, Docket Item 7 (2d Cir. Dec. 27, 2023). Although the
Second Circuit did not do that here, it presumably will treat all of Lettieri’s cases in the
same manner. Therefore, and because it has the authority to do so under Rule 62.1,
this Court decides Lettieri’s pending motions.
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or speculation that a judge is engaged in criminal conduct are “insufficient to compel
recusal.” Jordan v. U.S. Dep’t of Just., 315 F. Supp. 3d 584, 593 (D.D.C. 2018). Third,
“opinions formed by the judge on the basis of . . . events occurring in the course of the
current proceedings, or of prior proceedings, do not constitute a basis for . . . [recusal]
unless they display a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994).
Lettieri points to nothing suggesting that this Court’s impartiality might reasonably
be questioned. See Docket Item 5. In fact, several—if not all—of his allegations are
frivolous. See id. Moreover, this Court harbors no bias against Lettieri and has
previously denied several of his motions seeking its recusal, see, e.g., Lettieri v. W.
Dist. of New York, Case No. 23-cv-770, Docket Item 7 at 4-6 (W.D.N.Y. Sept. 11, 2023),
which have become part of his pattern of vexatious litigation, see supra at n.1.
Lettieri’s motion for recusal therefore is denied.
II.

MOTIONS FOR RECONSIDERATION
“As explained by the Second Circuit, ‘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.’” Kharshiladze v. Philips, 2021 WL 1525869, at *1 (W.D.N.Y. Apr. 19, 2021)
(alterations omitted) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.
1995)). “The major grounds justifying reconsideration are an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or
prevent a manifest injustice.” Id. (quoting Virgin Atl. Airways v. Nat’l Mediation Bd., 956
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F.2d 1245, 1255 (2d Cir. 1992)). “These criteria are strictly construed against the
moving party so as to avoid repetitive arguments on issues that have been considered
fully by the court.” Id. (quoting Boyde v. Osborne, 2013 WL 6662862, at *1 (W.D.N.Y.
Dec. 16, 2013)); see Nossek v. Bd. of Educ. of Duanesburg Cent. Sch. Dist., 1994 WL
688298, *1 (N.D.N.Y. Nov. 10, 1994) (“[A] motion for reconsideration is not a device
intended to give an unhappy litigant one additional chance to sway the judge.” (citation
and internal quotation marks omitted)).
Lettieri’s motions for reconsideration do not demonstrate any of the three
circumstances under which reconsideration might be warranted. See Kharshiladze,
2021 WL 1525869, at *1. Indeed, Lettieri does nothing more than make a bald and
baseless claim about a conspiracy between his prior lawyer, a prosecutor, and a
magistrate judge, see Docket Item 6 at 1-2; criticize this Court and reargue the law that
this Court applied in its prior decision, see id. at 1-3; and raise an irrelevant claim that
he is a “class of one,” see Docket Item 9. Because there is no reason for this Court to
revisit its previous order, Lettieri’s motions for reconsideration are denied.
CONCLUSION
For the reasons stated above, Lettieri’s motion for recusal, Docket Item 5, and
motions for reconsideration, Docket Items 6 and 9, are DENIED.

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SO ORDERED.
Dated: February 5, 2024
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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