Daniels v. Murphy et al

Filing 38

ORDER denying, without prejudice to refiling if case goes to trial, 26 Motion to Appoint Counsel; denying as moot 28 Motion for TRO; denying 29 Motion for Summary Judgment; denying as moot 33 Motion for Order. Signed by Judge Stefan R. Underhill on 11/8/12. (Sbalbi, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LADEAN DANIELS
v.

CASE NO. 3:11CV286

(SRU)

COMMISSIONER BRIAN MURPHY, ET AL.

RULING ON PENDING MOTIONS
Pending before the court are LaDean Daniels’ motions for summary judgment, for
appointment of counsel, for injunctive relief and for an order to produce documents. For the
reasons set forth below, the motions are denied.
I.

Motion for Summary Judgment [Doc. No. 29]
On February 2012, the plaintiff filed an amended complaint asserting claims pursuant to

42 U.S.C. § 1983 and the Americans with Disabilities Act. The plaintiff names former
Commissioner of Correction Brian Murphy, Director of Security Michael Lajoie, Warden Angel
Quiros, Deputy Warden Lauren Powers, Health Services Administrator Richard Furey,
Correctional Officers Goodhall and St. John, Dr. Carson Wright and Nurse Erin Dolan as
defendants.
The plaintiff asserts that on June 6, 2010, he was confined at Northern Correctional
Institution (“Northern”) as a pretrial detainee and remained at Northern until May 2011. The
plaintiff claims that the defendants did not provide him with a hearing prior to forcing him to
participate in the Security Risk Group Threat Member Program at Northern as a pretrial detainee.
The plaintiff suffers from a musculoskeletal injury due to a gunshot wound to his right
leg. Correctional officials at Northern would not permit him to wear a special leg brace that he
had used prior to his incarceration.

During his incarceration at Northern, Daniels was confined in his cell for twenty-three
hours a day and was only permitted one hour out of his cell to exercise. Pursuant to an October
2009 Policy authorized by Commissioner Murphy and Director of Security Lajoie, the plaintiff
was required to be handcuffed behind his back during recreation. The plaintiff alleges that he
was unable to exercise when he was handcuffed behind his back.
The plaintiff claims that he suffers from chronic back, shoulder, hip, knee, ankle and foot
pain and is taking medication for these conditions. The plaintiff alleges that due to his disabling
conditions, he requires a cane in order to walk safely and needs to sleep on a bottom bunk.
During his confinement at Northern, Warden Quiros, Assistant Warden Powers, Health Services
Administrator Richard Furey, Dr. Wright and Nurse Erin Dolan were deliberately indifferent to
his various medical needs and his disabilities.
The plaintiff asserts that he is entitled to summary judgment because he will most likely
succeed on his claims at trial. In a motion for summary judgment, the burden is on the moving
party to establish that there are no genuine issues of material fact in dispute and that it is entitled
to judgment as a matter of law. See Rule 56(c), Fed. R. Civ. P.; Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986). The moving party may satisfy this burden by demonstrating the lack
of evidence to support the nonmoving party’s case. See PepsiCo, Inc. v. Coca-Cola Co., 315
F.3d 101, 105 (2d Cir. 2002) (per curiam).
A court must grant summary judgment if the pleadings, discovery materials on file and
any affidavits show that there is no genuine issue as to any material fact. See Miner v. Glen
Falls, 999 F.2d 655, 661 (2d Cir. 1993). A dispute regarding a material fact is genuine if there is
sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. See

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Anderson, 477 U.S. at 248.
The plaintiff’s motion for summary judgment consists of a nine pages. He describes his
claims against the defendants and argues that the defendants have violated his First, Eighth and
Fourteenth Amendment rights as well as his rights under the Americans with Disabilities Act.
The supplemental memorandum in support of his motion refers to incidents that have occurred
from May 2012 through August 2012. Those incidents are not set forth in support of claims in
the amended complaint.
Rule 56(a), D. Conn. L. Civ. R., requires that a motion for summary judgment be
accompanied by “a document entitled ‘Local Rule 56(a)1 Statement,’ which sets forth in
separately numbered paragraphs meeting the requirements of Local Rule 56(a)3 a concise
statement of each material fact as to which the moving party contends there is no genuine issue to
be tried.” Rule 56(a)3 requires that each statement in the Rule 56(a)1 Statement “must be
followed by a specific citation to (1) the affidavit of a witness competent to testify as to the facts
at trial and/or (2) evidence that would be admissible at trial. The affidavits, deposition
testimony, responses to discovery requests, or other documents containing such evidence shall be
filed and served” with the Local Rule 56(a)1 Statement. This specific citation requirement
applies to pro se litigants as well as to attorneys.
Daniels has not filed a separate Local Rule 56(a)1 Statement with specific citations to
affidavits or other evidence that would be admissible at trial. Nor has he submitted any
documentary evidence in support of the arguments in his memorandum in support of his motion
for summary judgment. Thus, his motion for summary judgment fails to comply with a court
rule and is denied.

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II.

Motion for Injunctive Relief [Doc. No. 28]
The plaintiff asserts that in May 2012, prison officials at MacDougall Correctional

Institution (“MacDougall”) lowered his security risk level to a three and transferred him to Carl
Robinson Correctional Institution (“Carl Robinson”) in Enfield, Connecticut. At Carl Robinson,
Dr. Gerard Gagne met with the plaintiff and determined that he did not need the medication that
had been prescribed to him at MacDougall to treat his mental health conditions. Dr. Gagne
discontinued the medication. Nurse Dolan then confiscated the cane that the plaintiff had been
using to assist him in walking.
The plaintiff claims that Nurse Dolan and Dr. Gagne acted with deliberate indifference
towards him when they discontinued treatment and medication that had been prescribed by
medical providers at MacDougall. The plaintiff also suggests that the decisions were made in
retaliation for the current lawsuit.
The defendants have filed a memorandum in response to the motion for injunctive relief
indicating that the plaintiff is now confined at Osborn Correctional Institution (“Osborn”). The
plaintiff has filed a reply to the memorandum in response to his motion for injunctive relief as
well as a supplement to his motion for summary judgment acknowledging that on July 9, 2012,
prison officials at Carl Robinson transferred him to Osborn and he is receiving adequate mental
and medical treatment at that facility. (See Reply to Mem. Opp’n Mot. Inj. Relief, Doc. No. 34
and Addendum to Mot. Summ. J., Doc. No. 36.)
In this circuit, the standard for injunctive relief is well established. To warrant
preliminary injunctive relief, the moving party “must demonstrate (1) that it will be irreparably
harmed in the absence of an injunction, and (2) either (a) a likelihood of success on the merits or

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(b) sufficiently serious questions going to the merits of the case to make them a fair ground for
litigation, and a balance of hardships tipping decidedly in its favor.” Brewer v. West Irondequoit
Central Sch. Dist., 212 F.3d 738, 743-44 (2d Cir. 2000).
Although a showing that irreparable injury will be suffered before a decision on the
merits may be reached is insufficient by itself to require the granting of a preliminary injunction,
it is nevertheless the most significant condition which must be demonstrated. See Faiveley
Transport Malmo AB v. Wabtec Corp., 559 F. 3d 110, 118 (2d Cir. 2009). To demonstrate
irreparable harm, plaintiff must show an “‘injury that is neither remote nor speculative, but actual
and imminent and that cannot be remedied by an award of monetary damages.’” Forest City
Daly Housing, Inc. v. Town of North Hempstead, 175 F.3d 144, 153 (2d Cir. 1999) (quoting
Rodriguez v. DeBuono, 162 F.3d 56, 61 (2d Cir. 1998)).
Although a hearing is generally required on a properly supported motion for preliminary
injunction, oral argument and testimony is not required in all cases. See Kern v. Clark, 331 F.3d
9, 12 (2d Cir. 2003). Where, as here, “the record before the district court permits it to conclude
that there is no factual dispute which must be resolved by an evidentiary hearing, a preliminary
injunction may be granted or denied without hearing oral testimony.” 7 James W. Moore, et al.,
Moore’s Federal Practice ¶ 65.04[3] (2d ed.1995]. In this case, oral testimony and argument are
not necessary.
The defendants contend that any requests for injunctive relief regarding the conditions of
confinement at Carl Robinson are moot because the plaintiff is now housed at Osborn and has
received the medical and mental health treatment he claimed he was not receiving at Carl
Robinson. The plaintiff concedes that he is confined at Osborn and has received passes to use a

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cane and to sleep on a bottom bunk and is receiving medication to treat his mental health
conditions. Thus, the claims for injunctive relief relating to his conditions of confinement at Carl
Robinson are denied as moot. See Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976)
(inmate’s request for injunctive relief against correctional staff or conditions of confinement at a
particular correctional institution becomes moot when the inmate is discharged or transferred to a
different correctional institution); Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983)
(“The hallmark of a moot case or controversy is that the relief sought can no longer be given or is
no longer needed”).
III.

Motion for Order to Produce Documents [Doc. No. 33]
The plaintiff claims that he sent a request for production of documents to counsel for the

defendants seeking a copy of his security risk group file. The plaintiff contends that counsel for
the defendants objected to his request based on safety and security concerns. The plaintiff claims
that he has asked to view his security risk group file, but prison officials have denied his request.
The defendants object to the plaintiff’s motion. They assert that the plaintiff made no
attempt to confer in good faith prior to filing this motion. A party may seek the assistance of the
court only after he has complied with the provisions of Rule 37(a)(1) of the Federal Rules of
Civil Procedure. Under that rule, a motion to compel must include a certification that the
plaintiff has made an attempt to confer with opposing counsel in a good faith effort to resolve the
discovery dispute without the intervention of the court.
The plaintiff has not included a certification that he made an effort to resolve the dispute
pertaining to his request for production of his security risk group file prior to filing the motion.
Therefore, the plaintiff has not satisfied Federal Rule 37(a)(1). Accordingly, the motion to

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compel is denied without prejudice.
IV.

Motion for Appointment of Counsel [Doc. No. 26]
The plaintiff is seeking an appointment of pro bono counsel. The Second Circuit

repeatedly has cautioned the district courts against the routine appointment of counsel. See, e.g.,
Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir. 1997); Cooper v. A. Sargenti Co., 877 F. 2d
170, 172 (2d Cir. 1989). The Second Circuit has made clear that before an appointment is even
considered, the indigent person must demonstrate that he is unable to obtain counsel. See Hodge
v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986).
The plaintiff states that he contacted an attorney at the Inmates’ Legal Assistance
Program in November 2012 and does not know why the attorney declined to assist him. He
suspects it may be because of a conflict of interest. The plaintiff does not attach any letters from
that attorney. The plaintiff also states that he contacted an attorney at the Connecticut Civil
Liberties Union in January 2011, but neglects to indicate how the attorney responded to his
request for assistance.
Daniels’ two undocumented attempts to find counsel are insufficient to demonstrate that
plaintiff cannot obtain legal assistance on his own. The possibility that the plaintiff may be able
to secure legal assistance or representation independently precludes appointment of counsel by
the court at this time. The motion for appointment of counsel is denied without prejudice to refiling if the case proceeds to trial.
Conclusion
The plaintiff’s Motion for Summary Judgment [Doc. No. 29] is DENIED. The Motion
for Injunctive Relief [Doc. No. 28] is DENIED as moot. The Motion to Compel [Doc. No. 33]

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is DENIED without prejudice. The Motion for Appointment of Counsel [Doc. No. 26] is
DENIED without prejudice to refiling if the case goes to trial. Any renewal of that motion shall
be accompanied by a summary of any further attempts by Daniels to obtain counsel or legal
assistance, including the names of the attorneys contacted, the dates upon which plaintiff made
those contacts and the reasons why assistance was unavailable.
SO ORDERED this 8th day of November 2012, at Bridgeport, Connecticut.
/s/ Stefan R. Underhill
Stefan R. Underhill
United States District Judge

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