Abreu v. Brown et al
DECISION AND ORDER denying 48 Motion for Recusal. Signed by Hon. Elizabeth A. Wolford on 3/7/2017. (EMS) (An independent search for Plaintiff's name on the DOCCS Inmate Population Information Search website reveals that Plaintiff is currentl y housed at Five Points Correctional Facility. A copy of this Decision and Order has therefore been mailed to Plaintiff at Five Points Correctional Facility rather than the most current address he provided, at Great Meadow Correctional Facility. However, Plaintiff is reminded of his obligation to "inform the Court immediately, in writing, of any change of address. Failure to do so may result in dismissal of the case, with prejudice." L.R. Civ. P. 5.2(d)).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
6: 14-CV-06599 EA W
KEVIN J. BROWN, et al.,
Plaintiff Carlos Abreu ("Plaintiff'), pro se and incarcerated at Great Meadow
Correctional Facility, filed this action pursuant to 42 U.S.C. § 1983, alleging
constitutional violations arising out of his incarceration at Wende Correctional Facility.
(Dkt. 1). Pending before this Court is Plaintiffs motion to recuse the undersigned from
(Dkt. 48). For the reasons discussed below, the Court denies Plaintiffs
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff commenced this action on October 20, 2014. (Dkt. 1). On November 5,
2014, the Court denied Plaintiffs motion for leave to proceed informa pauperis, ordered
the Clerk of Court to close the case, and granted Plaintiff 30 days to move to reopen his
case. (Dkt. 7). On December 9, 2014, the Clerk of Court entered judgment. (Dkt. 8).
On February 9, 2015, Plaintiff moved to reopen his case and vacate the judgment. (Dkt.
9). The case was transferred to the undersigned on April 7, 2015. (Dkt. 16).
On June 3, 2015, the Court granted Plaintiffs motion to reopen the case, granted
him leave to proceed in forma pauperis, consolidated another action filed by Plaintiff
(under case number 6:15-CV-06155) with this case, and granted him leave to file an
amended complaint within 30 days. (Dkt. 21 ). The Court explained that it could not
effectively screen Plaintiffs complaint pursuant to 28 U.S.C. § 1915(a) and§ 1915A in
light of the fact that it was handwritten and voluminous, containing approximately "266
handwritten pages, plus exhibits, 1170 numbered paragraphs and 131 named and
unnamed defendants, many of which are ... redundant." (Id. at 6). Plaintiff was mailed
a copy of his complaint and his supplement to his complaint with a copy of the Decision
and Order dated June 3, 2015. (Id.).
On June 25, 2015, the Court granted Plaintiffs request for an extension of time to
file an amended complaint on or before September 1, 2015. (Dkt. 27).
On September 2, 2015, Plaintiff requested another extension of time to file an
amended complaint, contending that he could not submit one because of a recent surgery
on his hand. (Dkt. 30 at 1). He also requested appointment of counsel to assist in the
preparation of an amended complaint. (Id. at 1-2). The Court granted Plaintiffs request
for a second extension of time, setting November 2, 2015, as the deadline to file an
amended complaint, but denied his motion for appointment of counsel as premature.
In a letter dated October 21, 2015, Plaintiff stated that he had been transferred
from Sullivan Correctional Facility to the Special Housing Unit of the Great Meadow
Correctional Facility. (Dkt. 32 at 1). He stated, inter alia, that prison staff restricted his
access to writing supplies (such as paper and envelopes) and confiscated his multiple
bags of legal papers, which he needed to prepare an amended complaint. (Id. at 3). He
requested that the Court stay all deadlines in the case and schedule a videoconference to
discuss the issue of his access to legal papers. (Id. at 3-4 ).
On November 9, 2015 , the Court granted Plaintiffs request to stay the deadlines
in this case pending a discussion of Plaintiffs access to his legal papers at a December 8,
2015, videoconference. (Dkt. 33). At the videoconference, the Court directed Assistant
Attorney General Hillel Deutsch ("A.A.G. Deutsch") to contact Great Meadows
Correctional Facility to facilitate Plaintiffs access to legal papers. (See Dkt. 36).
In a letter to the Court dated December 10, 2015, A.A.G. Deutsch outlined a
process that the New York State Department of Corrections and Community Supervision
("DOCCS") designed to provide Plaintiff with access to his bags of legal papers. (Dkt.
40 at 2). To access one of his bags, Plaintiff would be required to make a written request
to switch out any bag for any other bag, and prison staff would provide the new bag to
him by the close of the next business day. (Id.). Citing DOCCS Directives 4933, 4913,
and 4911, A.A.G. Deutsch explained that "legal papers on active cases are permitted [in a
prisoner's cell] to the extent that they do not constitute a fire hazard." (Id. at 1). In a
letter to the Court dated December 29, 2015 , A.A.G. Deutsch informed the Court that
Plaintiff was refusing to participate in the process because he believed he should have
access to multiple bags of legal papers in his Special Housing Unit cell at one time,
notwithstanding the security and safety concerns set forth by A.A.G. Deutsch. (Dkt. 41).
The Court held a further status conference on January 12, 2016.
Plaintiffs access to his bags of legal papers and writing supplies was discussed at length
during the status conference.
(Abreu v. Farley, No. 6:11-CV-06251 EAW, Dkt. 91
(1112116 Status Conference Transcript)). The Court informed Plaintiff that he was free to
file a motion seeking relief from DOCCS 's process regarding his bags of legal papers and
that the Court would consider any such motion, but on the record before it, the Court
found no basis to order DOC CS to take any different action. (Id. at 9-10). The Court
also expressed skepticism that Plaintiff had no access to writing supplies given that he
had recently submitted written materials to the Court, but nevertheless informed Plaintiff
that "if, in fact, [he] ha[ d] proof that [he was] being denied paper and writing materials,
then [he] c[ ould] file a motion .. . to extend the six-month deadline" to file an amended
complaint. (Id. at 12).
After the status conference, on January 24, 2016, the Court issued a scheduling
order setting July 15, 2016, as the deadline for Plaintiff to file an amended complaint.
(Dkt. 39). The Court stated that it would not grant any additional extensions of time.
On February 24, 2016, Plaintiff moved to vacate and reconsider the Court's
scheduling order. (Dkt. 42). In his motion, Plaintiff reiterated his assertion that he had
been denied access to writing supplies, as well as his bags of legal papers, and requested
not only that the Court vacate its scheduling order, but also that it order DOCCS to
provide Plaintiff writing supplies and his bags of legal papers. (Id. at 12-13 ). The Court
denied the motion "for the reasons stated on the record at the status conference held on
January 12, 2016," and reiterated that the amended complaint had to be filed on or before
July 15, 2016.
The Court reasoned that "Plaintiff's submission of
approximately 28 pages of handwritten materials and copies of exhibits [in support of his
motion for reconsideration] defies Plaintiff's assertion that he has been denied access to
paper and postage for legal mail." (Id.).
On June 3, 2016, in response to Plaintiff's request, the Court ordered the Clerk of
Court to provide Plaintiff with a complete copy of his complaint and supplement to his
complaint in order to assist him with the drafting of an amended complaint. (Dkt. 4 7).
On June 16, 2016, Plaintiff moved to recuse the undersigned. (Dkt. 48). The
Court issued a scheduling order, requiring Defendants to file a response on or before July
7, 2016. (Dkt. 49). Defendants did not file any response. On July 11 , 2016, Plaintiff
filed an amended complaint. (Dkt. 50).
Motion for Recusal
In his motion for recusal, Plaintiff describes various circumstances that, in his
view, have hindered his ability to proceed in this case and, in particular, to file an
amended complaint. He reiterates his assertion that he has been continuously denied
access to writing supplies and his bags of legal papers. (See generally Dkt. 48). He also
takes issue with the Court's decision to deny his request to appoint pro bono counsel to
assist with the preparation of an amended complaint, arguing that the decision was
erroneous because he has limited education and English language skills and because he
was appointed pro bona counsel in another lawsuit. 1 (Id. at 3-4). Plaintiff states that
various medical procedures also hindered his ability to prepare an amended complaint.
(Id. at 5).
Plaintiff requests that I recuse myself from this lawsuit, alleging that I am "[p]ro
Defendant and [am] ruling in their favor, when it is well known that a judge is supposed
to act in a neutral manner with both parties in any litigation."
(Id. at 7).
contends that I engaged in "judicial misconduct" because I denied his motion for
reconsideration and purportedly "will not consider [his] letters, showing [my] judicial
misconduct." (Id.). In particular, he contends that I neglected to consider his "proofs and
evidences, and exhibits that [he] sent ... in December 2015 challenges to the letters of
the Attorney General's Office .... "
(Id. at 8).
Plaintiff asserts that my purported
"misconduct against [him] in a non-neutral fashion, is being unfair, arbitrary and
capricious favoritism in the Defendants['] behalf, and should be consider[ ed] in all
respects serious judicial misconduct." (Id. at 8-9).
A judge must recuse herself "in any proceeding in which h[er] impartiality might
reasonably be questioned," 28 U.S.C. § 455(a), and/or "[w]here [she] has a personal bias
or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
That lawsuit is Abreu v. Farley, No. 6:11-CV-06251 EAW, commenced on May
10, 2011, by the filing of an approximately 340-page, handwritten complaint that named
more than 130 defendants and alleged various constitutional violations arising out of
Plaintiffs incarceration at Five Points Correctional Facility. (Dkt. 1). On August 11,
2011, pro bona counsel was appointed to represent Plaintiff. (Dkt. 9). On January 5,
2015, that case was also transferred to the undersigned. (Dkt. 48).
concerning the proceeding," id. at § 455(b)(l). "[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). In deciding whether to recuse, a judge considers whether "a reasonable
person, knowing all the facts, [would] conclude that the trial judge's impartiality could
reasonably be questioned[.] " Id.
Recusal is not warranted. Plaintiff devotes a significant portion of his motion for
recusal to descriptions of the various circumstances that conspired to frustrate his ability
to file an amended complaint.
As an initial matter, the fact that Plaintiff filed his
amended complaint by this Court's deadline undermines Plaintiffs arguments. In any
event, by Plaintiffs own description, the circumstances that hindered his preparation of
an amended complaint are attributable not to my decisions or conduct, but rather to the
alleged actions of prison officials. According to Plaintiff, the reasons that he had been
unable to amend are as follows:
(1) The Facility continues denying [him] any reasonable accommodations
to access [his] legal work. (2) The Prison Officials continue to confiscate
[his] legal work, and now even refuses to provide the one-bag limit, and
continues to enforce limitations of legal postage and legal copies for an
entire year. (3) And continues in denying [him] writing paper, envelopes,
carbon paper, etc.
(Dkt. 48 at 8). The prison officials ' decisions regarding the management of Plaintiffs'
legal materials and access to writing supplies do not give rise to any reasonable basis to
question the undersigned ' s impartiality.
To the extent that Plaintiff contends that the Court failed to address the issue of his
access to his bags of legal papers, the record does not show that to be the case. The Court
has spent considerable time addressing the issue both in this case and in the Abreu v.
In the latter, after Plaintiff represented that prison officials were
threatening to destroy his bags of legal papers, the Court ordered DOCCS to "preserve
the legal materials of Plaintiff Carlos Abreu, Inmate No. 99A3027, while he is being
housed at Great Meadow Correctional Facility, as well as at any future DOCCS facility at
which he may be housed."
(Abreu v. Farley, No. 6: l 1-CV-06251 EA W, Dkt. 98
(7/28/2016 Text Order)). 2 Simply put, any contention that the Court has failed to address
the issue of Plaintiffs access to his legal papers is baseless. Indeed, significant time has
been devoted to addressing this very issue.
At bottom, Plaintiffs motion for recusal is an expression of his dissatisfaction
with the Court's decisions in this case. He takes issue with the determinations I made
regarding his requests for appointment of counsel and for reconsideration, and he claims,
in a conclusory fashion, that I am biased in favor of Defendants and have not considered
his submissions. But disagreement with my decisions is not evidence of any bias or
prejudice. Judicial rulings are "[a]lmost invariably ... proper grounds for appeal, not for
recusal." Liteky v. United States, 510 U.S. 540, 555 (1994); see also Mills v. Poole, Nos.
1:06-cv-00842-MAT-VE, 1:11-cv-00440, 2014 WL 4829437, at *6 (W.D.N.Y. Sept. 29,
In a letter dated January 19, 2017, Plaintiff stated that his legal papers "will be
available [to] me in Upstate CF SHU very soon, in my cell." (Abreu v. Farley, No. 6:1 lCV-06251 EA W, Dkt. 108 at 2 (Letter)). Based on Plaintiffs letter, it appears that the
issue of Plaintiffs access to his bags of legal papers has been resolved.
2014) ("Petitioner's claims of bias and impartiality on the part of the undersigned ... are
both conclusory and based entirely on his disagreement with the Court's decisions. This
is an insufficient basis for recusal."). Nothing in the record suggests that I have based my
decisions on any favoritism toward Defendants or anything other than my honest view of
the law and the facts. Moreover, Plaintiffs conclusory assertion that I have failed to
consider his arguments or submissions is undermined by the record in this case. Rather
than ignore Plaintiffs submissions, Plaintiffs requests have been addressed on the record
through various orders of this Court and in multiple status conferences.
Based on the record in this case, I conclude that no reasonable observer would
question my impartiality. Moreover, nothing in the record suggests that I am biased in
favor of Defendants or against Plaintiff. Accordingly, Plaintiffs motion for recusal is
For the reasons set forth above, Plaintiffs motion for recusal (Dkt. 48) is denied.
Dated: March 7, 2017
Rochester, New York
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