Byrd v. Fingerlakes \ Developmental Disabilities Services Office O.P. W.D.D.

Filing 13

DECISION & ORDER denying 12 Motion for Disqualification or Recusal. Plaintiff is free to continue her efforts to find counsel. If she is successful, counsel should enter a notice of appearance on her behalf and may represent her. Her complaint reflects her request for a jury trial. Signed by Hon. Marian W. Payson on 10/16/2015. Copy of Decision & Order sent by First Class Mail to plaintiff Vickie Dianne Byrd on 10/16/2015. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

VICKIE DIANNE BYRD,
DECISION & ORDER
Plaintiff,
14-CV-6470T
v.
FINGER LAKES DEVELOPMENTAL
DISABILITIES SERVICES OFFICE
O.P.W.D.D.,
Defendant.

Following the district judge’s referral order dated August 10, 2015, this Court
scheduled a conference pursuant to Rule 16 of the Federal Rules of Civil Procedure to be held on
October 14, 2015. (Docket # 7). On August 20, 2015, plaintiff filed a motion for appointment of
counsel (Docket # 8), which this Court denied by Decision and Order dated October 2, 2015
(Docket # 10). This Court held the Rule 16 scheduling conference on October 14, 2015, at which
time a scheduling order was agreed upon by the parties and issued by the Court. (Docket # 11).
At the time of the conference, plaintiff indicated her desire to revoke her consent to magistrate
judge jurisdiction over the case. Her revocation was accepted, although the Court noted that
counsel for defendant had not consented so the undersigned was acting pursuant to 28 U.S.C.
§ 636(b)(1)(A) and not § 636(c). At the time of the conference, plaintiff referenced a letter she
had sent the Court, which had not yet been received.
The day after the Rule 16 conference, this Court received plaintiff’s letter dated
October 8, 2015. The letter, which has been docketed as a motion, refers to her desire to revoke

her consent, to request a jury trial, and to request that I be disqualified and recused from any
further proceedings in this case due to her perception that I am prejudiced and biased against her.
(Docket # 12). Her perception apparently derives from my recent decision denying her motion
for appointment of counsel without prejudice to renewal. She complains that the decision was
unfair and not issued in a timely manner. (Id.). Her complaints do not justify disqualification or
recusal, see, e.g., Moskovits v. Moskovits, 150 F. App’x 101, 102 (2d Cir. 2005) (“[p]laintiffs
have failed to show basis for recusal, as their allegations fail to demonstrate an ‘deep-seated
favoritism or antagonism that would make fair judgment impossible,’ . . . as opposed to
disagreement with decisions made by [the judge] in his judicial role”) (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994)); Kearney v. Fischer, 2014 WL 1379541, *2 (W.D.N.Y. 2014)
(“[t]he [p]laintiff’s sole basis for seeking the [c]ourt’s recusal in this case is his disagreement
with the [c]ourt’s decision not to assign him new pro bono counsel[;] [h]owever, ‘judicial rulings
alone almost never constitute a valid basis for a bias or partiality motion’”) (quoting Liteky v.
United States, 510 U.S. at 555); Wu v. Pearson Educ. Inc., 2012 WL 3065303, *2 (S.D.N.Y.
2012) (“it is plain to see that this motion is an expression of plaintiff’s disapproval with the
decisions that this [c]ourt has made in its judicial role – and a party’s disagreement with judicial
decisions does not provide a basis for recusal”), and her application for such relief (Docket # 12)
is denied.
Insofar as she requests more time to attempt to retain counsel, plaintiff is free to
continue her efforts to find counsel. If she is successful, counsel should enter a notice of

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appearance on her behalf and may represent her. Her complaint reflects her request for a jury
trial. (See Docket # 1).
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
October 16, 2015

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