ADAMS III v. TAYLOR (2022)

DECISION AND ORDER

INTRODUCTION

Plaintiff Robert Adams, III (“Plaintiff”), proceeding pro se, asserts claims against defendant Corrections Officer Justin Taylor (“Defendant”) pursuant to 42 U.S.C. § 1983. (Dkt. 79). Presently before the Court are Plaintiff's motion to disqualify judge (Dkt. 29) and motion for sanctions (Dkt. 31). For the reasons discussed below, Plaintiff's motions are denied.

DISCUSSION

I. Plaintiff's Motion to Disqualify

Plaintiff first makes a motion to disqualify the undersigned from this case, citing to 28 U.S.C. § 144, which addresses “Bias or prejudice of judge.” (See Dkt. 29 at 1; 28 U.S.C. § 144).

Under 28 U.S.C. § 144, a litigant may seek recusal of a judge if the litigant files “a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party.” 28 U.S.C. § 144. “Title 28 U.S.C. § 455(a) requires a judge to recuse [her]self ‘in any proceeding in which [her] impartiality might reasonably be questioned.’ ” Cox v. Onondaga Cnty. Sheriff's Dep't, 760 F.3d 139, 150 (2d Cir. 2014) (quoting 28 U.S.C. § 455(a)); see also Walker v. Cuomo, No. 9:17-CV-0650(TJM/DJS), 2018 WL 6380369, at *1 (N.D.N.Y. Dec. 6, 2018) (“Sections 144 and 455 are complementary, and the grounds for disqualification are the same under both statutes.”). “Recusal motions ‘are committed to the sound discretion of the district court[.]’ ” Abidekun v. N.Y.C. Transit Auth., No. 93-CV-5600 (FB), 1998 WL 296372, at *2 (E.D.N.Y. June 4, 1998) (quoting United States v. Conte, 99 F.3d 60, 65 (2d Cir. 1996)). “In cases where a judge's impartiality might reasonably be questioned, the issue for consideration is not whether the judge is in fact subjectively impartial, but whether the objective facts suggest impartiality.” Williams v. LaClair, No. 9:10-CV-635 (GLS/RFT), 2013 WL 1193766, at *3 (N.D.N.Y. Jan. 29, 2013) (citing Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)), adopted, No. 9:10-CV-0635, 2013 WL 1193741 (N.D.N.Y. Mar. 22, 2013).

Plaintiff argues that the undersigned has a “personal bias, and or prejudice” against him and in favor of Defendant and the New York Department of Corrections. (Dkt. 29 at 3). In support of this assertion, Plaintiff states that Defendant was attempting to evade service by not returning the “Notice and Acknowledgment of Receipt of Summons and Complaint by Mail” form ¹ , and the Court's not granting his letter requests for personal service on Defendant demonstrates bias and prejudice. (Id. at 3-13; see also Dkt. 23; Dkt. 25; Dkt. 27).

Plaintiff originally filed this case against “Corrections Officer Taylor.” (Dkt. 1; Dkt. 15). On September 8, 2021, the Court directed the Clerk to cause the United States Marshals Service (“USMS) to serve copies of the summons, complaint, and the Court's screening order on Corrections Officer Taylor at the Groveland Correctional Facility. (Dkt. 15). That same day, the summons was issued as to Defendant Corrections Officer Taylor, and the Clerk's Office forwarded service packets to the USMS. (Dkt. 16). On November 3, 2021, the summons was returned unexecuted, and indicated that the summons was “mailed certified on 09/09/2021,” but the “acknowledgment of receipt was not returned on 11/03/2021.” (Dkt. 20). Six days later, on November 9, 2021, the Court granted Plaintiff's motion to extend the time to serve Defendant, and also directed that the New York State Attorney General's Office ascertain Defendant's first name and provide a proper address for him, so that he could be served. (Dkt. 21). On November 16, 2021, the Attorney General's Office filed a response, providing that Defendant's first name was “Justin” as well as his address at Groveland Correctional Facility. (Dkt. 22). The docket reflects that the summons was reissued one day later, on November 17, 2021. However, the summons was again returned unexecuted on January 10, 2022. (Dkt. 26). Plaintiff thereafter moved for entry of default (Dkt. 28), which was denied by the Clerk given that Defendant had not yet been served. Thereafter, on April 21, 2022, the Attorney General's Office filed a Notice of Appearance on behalf of Defendant. (Dkt. 32).

Contrary to Plaintiff's argument, the Court took steps between September 2021, when the complaint was screened, and April 2022, when the Attorney General's Office filed a notice of appearance, to ensure that Plaintiff's complaint was served on the proper entity, including issuing a Valentin Order directing the Attorney General's Office to identify the correct name and address for Defendant, and by extending Plaintiff's time to serve the complaint. (See Dkt. 21; Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997)). That this process took longer than Plaintiff would have preferred does not entitle him to recusal, nor does the fact that the Court did not immediately order personal service or grant entry of default in his favor. See, e.g., Mills v. Poole, Nos. 1:06-cv-00842-MAT-VEB, 1:11-cv-00440-MAT, 2014 WL 4829437, at *6 (W.D.N.Y. Sept. 29, 2014) (“[Plaintiff'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.”); see also Ranzello v. Nelson, No. 1:05-CV-153, 2006 WL 8431516, at *1 (D. Vt. Jan. 13, 2006) (“An order for service by publication, after unsuccessful attempts at personal service, does not display either favoritism or antagonism.”). Put simply, there is no evidence justifying recusal, nor is there any basis for it, and Plaintiff's conclusory claims of bias and prejudice lack any factual basis and fail to provide sufficient grounds for the undersigned's recusal. Accordingly, Plaintiff's motion to disqualify (Dkt. 29) is denied.

II. Plaintiff's Motion for Sanctions

Relying on Rule 11 of the Federal Rules of Civil Procedure, Plaintiff requests sanctions in the amount of $5,000, based on the alleged failure of the Assistant Attorney General in Charge (“AAGIC”) Ted O'Brien, to return the acknowledgement of service form to the USMS. (Dkt. 31). Defendant opposes Plaintiff's motion, contending that Rule 11 is not a proper mechanism by which Plaintiff can seek relief, that there is no obligation to accept service of process by mailing, and Plaintiff has failed to demonstrate why he is entitled to $5,000 in sanctions. (Dkt. 33).

Rule 11 requires an attorney to certify that (1) a pleading “is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation,” (2) “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law,” and (3) “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed. R. Civ. P. 11(b). Under Rule 11(c), a court has the authority to sanction a party “if it determines that the party has made false, misleading, improper, or frivolous representations to the court in violation of Rule 11(b).” Hardie v. City of Albany, No. 118CV470GLSCFH, 2019 WL 5537610, at *3 (N.D.N.Y. Oct. 25, 2019).

Rule 11 provides that a motion for sanctions “must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b).” See Fed. R. Civ. P. 11(c)(2). Further, any such motion “must be served on the offending party twenty-one days before it is filed with the court.” Rogers v. Henry, No. 16-CV-05271 (KAM)(VMS), 2017 WL 5495805, at *4 (E.D.N.Y. Sept. 12, 2017) (citing Fed. R. Civ. P. 11(c)(2)). “Any motion seeking Rule 11 sanctions that does not comply with these provisions must be denied.” Intravaia v. Rocky Pt. Union Free Sch. Dist., No. 12-CV-0642 (DRH)(AKT), 2014 WL 7338849, at *3 (E.D.N.Y. Dec. 22, 2014).

As an initial matter, Rule 11 is not the proper vehicle by which Plaintiff may seek relief at this juncture. Plaintiff's motion for sanctions is not based on an alleged misrepresentation by Defendant in a pleading, that Defendant's defenses are frivolous, or that Defendant's factual contentions lack evidentiary support. Accordingly, Plaintiff has failed to articulate any basis for his entitlement to $5,000 in sanctions.

Even if Rule 11 was the proper vehicle by which Plaintiff could seek relief, Plaintiff has failed to comply with the procedural requirements of that Rule. Specifically, Plaintiff's motion for sanctions also seeks a separate form of relief, including an expedited order directing the Attorney General's Office to accept service of process on behalf of Defendant, pursuant to Rule 4(e) and DOCCS Directive 6930. (See Dkt. 31 at 1). Further, Plaintiff has failed to demonstrate that he served his motion for sanctions on Defendant 21 days before filing it with the Court. Plaintiff's motion was filed on the docket on April 13, 2022, and the affidavit of service attached to the motion states that Plaintiff served his motion on the Attorney General's Office on April 7, 2022. (See id. at 10). Accordingly, Plaintiff has not complied with Rule 11’s 21-day safe harbor provision. See Hardie, 2019 WL 5537610, at *3 (“Further, the motion must first be served upon the offending party, who is then given 21 days to remedy the sanctionable conduct before the motion may be made to the court.” (quoting Finnan v. Ryan, No. 8:08-CV-259, 2008 WL 4891162, at *7 (N.D.N.Y. Nov. 7, 2008))); Castro v. Mitchell, 727 F. Supp. 2d 302, 306 (S.D.N.Y. 2010) (“A motion that fails to comply with the safe harbor provision of Rule 11 must be denied.”). Indeed, on April 14, 2022—less than 21 days after it was served with the motion—the Attorney General's Office did in fact complete an acknowledgement of service on Defendant's behalf. (See Dkt. 36). For those reasons, Plaintiff's motion for sanctions is denied.

CONCLUSION

For the foregoing reasons, Plaintiff's motion to disqualify judge (Dkt. 29) and motion for sanctions (Dkt. 31) are denied.

SO ORDERED.

FOOTNOTES

1.   The acknowledgment form referenced by Plaintiff was attached to the summons and mailed by the United States Marshals Service to Defendant. (See Dkt. 15; Dkt. 20). Pursuant Rule 4(d)(1) of the Federal Rules of Civil Procedure, select individual and corporate defendants have “a duty to avoid unnecessary expenses of serving the summons.” Fed. R. Civ. P. 4(d)(1). The Rule provides that a plaintiff “may notify such a defendant that an action has been commenced and request that the defendant waive service of a summons.” Id. If the defendant is properly notified and fails to waive service “without good cause”, “the court must impose on the defendant ․ the expenses later incurred in making service; and ․ the reasonable expenses, including attorney's fees, of any motion required to collect those service expenses.” Id. at (d)(2).

ELIZABETH A. WOLFORD, Chief Judge