Free Order on Motion to Transfer/Disqualify/Recuse Judge - District Court of Connecticut - Connecticut

Case 3:03-cv-00943-AWT

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ------------------------------x GARY SESSION, : : Plaintiff, : v. : : CITY OF NEW HAVEN, and : EDWIN RODRIGUEZ, : : Defendants. : ------------------------------x

Civ No. 3:03CV00943(AWT)

ORDER RE MOTION FOR RECUSAL

Plaintiff Gary Session has moved for this judicial officer to recuse himself with respect to this matter. For the reasons set

forth below, the plaintiff's motion is being denied. As an initial matter, the court assumes that the plaintiff's motion is filed pursuant to 28 U.S.C. § 455(a), because there is no evidence of any effort to comply with the requirements for filing a motion pursuant to 28 U.S.C. § 144. Section 455(a) provides that a

judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a).

The plaintiff contends that certain comments made by the court during a telephonic status conference on October 26, 2007 are proper cause for concern. The plaintiff appears to contend that

comments concerning the fact that many cases do not make it past the summary judgment stage suggest that the court has a preconceived notion about the ability of the plaintiff's case to survive a Rule 50 motion. However, the plaintiff is viewing these

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comments out of context.

Taken in context, it is apparent from

these comments that the court was trying to resolve the dispute between the plaintiff and his former counsel, and the transcript attached as "Exhibit B" to the plaintiff's motion shows that the court was successful in doing so. The language on which the After

plaintiff relies appears at pages 3 and 4 of the transcript.

the court finished its explanation to the plaintiff as to what his counsel had been able to accomplish on his behalf, the plaintiff and his counsel had a conversation outside the hearing of the court and defense counsel, and then returned to report that the plaintiff wanted Mr. Ward to continue as his attorney; this is reflected at page 5 of the transcript. The plaintiff also argues that the court may have an unfavorable opinion of the plaintiff, which would interfere with the court's ability to be fair and impartial. Here, the plaintiff

points to certain other comments during the telephonic conference on October 26, 2007. To put the discussion in context, the

plaintiff sent a letter to the court dated February 19, 2007 complaining about his counsel; the court held an informal telephonic conference on March 5, 2007 so that counsel for the defendants would be aware of the plaintiff's communication with the court; current counsel for the plaintiff may not be aware of that conference. Then, during the October 26, 2007 status conference,

the court informed the plaintiff that the court will not appoint a lawyer for him and that the court doubted that he would be able to

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get another lawyer to represent him based on what the court had observed of the plaintiff and how he had interacted with his lawyers and expressed himself in the presence of the court. court observed that it was probably in the record that the plaintiff had been complaining about his counsel, and the plaintiff agreed. The court then said that the court's conclusion that it The

will not appoint another lawyer for the plaintiff was based on the substance and style of the plaintiff's February 19, 2007 letter, and while the court is gratified that the plaintiff's new counsel has undertaken to represent the plaintiff, many lawyers would not take on a client who had written such a letter. Therefore, the

court would not appoint a new lawyer for the plaintiff. The plaintiff cannot send an inappropriate communication to the court and then complain that the court has concluded it is inappropriate. Similarly, the plaintiff states that he called

chambers to talk to a law clerk and was admonished by the court for calling chambers. Here, the plaintiff ignores that he was

admonished for calling chambers and attempting to engage in inappropriate, ex parte communications dealing with the substance of the case. Finally, the plaintiff points to the April 23, 2008 telephonic status conference during which the court vacated an order extending the dispositive motions deadline to August 26, 2008. The

plaintiff's new counsel is probably not aware of the fact that the order (Doc. No. 166) granted a motion that only sought an extension

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of time until June 26, 2008 to complete discovery (Doc. No. 165), and nothing more. In preparing for the telephonic status

conference on April 23, 2008, the court became aware that the order granting the motion had inadvertently included a sentence extending the dispositive motions deadline to August 26, 2008. was corrected in docket entry 168. This error

It is clear from the language

in docket entry 165 that no extension of time in which to file dispositive motions had been sought, and had one been sought, it would not have been granted because the court had already adjudicated the dispositive motions in the case. Here, the standards for disqualification have not been met. Where the standards for disqualification have not been met, "disqualification is not optional; rather it is prohibited." In Re Certain Underwriter, 294 F.3d 297, 305 (2d Cir. 2002). For the reasons set forth above, the plaintiff's Motion to Transfer to Another Judge or Recuse (Doc. No. 198) is hereby DENIED. It is so ordered. Signed this 26th day of August, 2008 at Hartford, Connecticut. See

_______/s/AWT_________________ Alvin W. Thompson United States District Judge

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