Kostyshyn v. Markell et al

Filing 29

MEMORANDUM ORDER - DENYING 18 MOTION for Preliminary Injunction, MOTION to Compel filed by Peter Kostyshyn, DENYING 20 MOTION to Appoint Counsel, MOTION for Preliminary Injunction filed by Peter Kostyshyn, DENYING 28 MOTION to Appoint C ounsel, MOTION Lift ban on mailing filed by Peter Kostyshyn. Plaintiff is placed on notice that the court will docket, but not consider, further motions until plaintiff complies with the May 30, 2013 order (D. I. 16). Signed by Judge Sue L. Robinson on 6/19/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

PETER KOSTYSHYN,
Plaintiff,
v.
GOVERNOR JACK MARKELL, et aI.,
Defendants.

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) Civ. No. 13-825-SLR
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MEMORANDUM ORDER

At Wilmington this

\~ay of June, 2013, having considered plaintiffs motions for

preliminary injunction, motion to compel discovery, requests for counsel, and motion for
reconsideration (D.1. 18,20,28);
IT IS ORDERED that the motions (D.1. 18,20,28) are denied, for the reasons
that follow:
1. Background. Plaintiff Peter Kostyshyn ("plaintiff'), a prisoner incarcerated at
the Howard R. Young Correctional Institution ("HRYCI"), Wilmington, Delaware, filed a
complaint on May 9, 2013, pursuant to 42 U.S.C. § 1983. (D.1. 1) On May 31, 20)3
and June 10, 2013, respectively, plaintiff filed motions for injunctive relief to order the
State of Delaware to: (1) lift a weekly $1.35 postage restriction on legal mail; (2) lift the
limit of twenty photocopies per week; and (3) allow him to keep nitroglycerin on his
person or, in the alterative, to house him in the infirmary where the nitroglycerin tablets
are kept. Plaintiff also requests counselor, in the alternative, moves to compel the
production of documents. Finally, he seeks reconsideration of a June 3, 2013 order
that denied injunctive relief with regard to the nitroglycerin issue. On June 11, 2013,

the court ordered Warden Phil Morgan to respond and address plaintiff's motions. A
response was filed June 14, 2013.
2. Injunctive relief. A preliminary injunction is "an extraordinary remedy that
should be granted only if (1) the plaintiff is likely to succeed on the merits; (2) denial will
result in irreparable harm to the plaintiff; (3) granting the injunction will not result in
irreparable harm to the defendant; and (4) granting the injunction is in the public
interest." NutraSweet Co. v. Vit-MarEnterprises, Inc., 176 F.3d 151,153 (3d Gir. 1999)

("NutraSweet II"). The elements also apply to temporary restraining orders. See
NutriSweet Co. v. Vii-Mar Enterprises., Inc., 112 F.3d 689,693 (3d Gir. 1997)
("NutraSweet I") (a temporary restraining order continued beyond the time permissible
under Rule 65 must be treated as a preliminary injunction, and must conform to the
standards applicable to preliminary injunctions). "[F]ailure to establish any element in [a
plaintiff's] favor renders a preliminary injunction inappropriate." NutraSweet II, 176 F.3d
at 153. Furthermore, because of the intractable problems of prison administration, a
request for injunctive relief in the prison context must be viewed with considerable
caution. Rush v. Correctional Med. Services, Inc., 287 F. App'x 142, 144 (3d Gir. 2008)
(not published) (citing Goffv. Harper, 60 F.3d 518, 520 (8th Cir. 1995».
3. Plaintiff indicates that he has been restricted from petitioning the courts as a
result of a $1.35 per week postage limit and a photocopy limit of twenty copies per
week. Plaintiff asserts the restrictions were imposed in retaliation for filing lawsuits.
Plaintiff received a memorandum dated May 20, 2013 placing the restrictions on him
due to his "continuous use and perhaps abuse of limited resources as it relates to [his]

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mailing and supply privileges" that were granted him. Plaintiff was advised that he has
not shown the ability to responsibly and respectfully use the free mail for legal
purposes.
4. Plaintiff's allowable legal mail amount was reduced to $2.27 per week (Le.,
one personal letter at 46 cents and one large envelope at $1.35). In addition, he has
been limited to no more than twenty photocopies for legal work per week, except the
amount may be modified upon presentation of a court order that indicates more copies
are required. (0.1. 18, ex. I)
5. Mary Matthews supervises the mailroom at the HRYCI. She states that
plaintiff's mailing privileges were limited due to plaintiff's abuse of the mail system.
Plaintiff is limited in the amount of postage he receives for mailing through the United
States Postal Service, but he can send mail at no charge through the State of
Delaware's interoffice mail system for correspondence to the Delaware State Courts,
Delaware State Officials, and the like. Plaintiff mailed 192 items from May 1, 2013 to
June 14,2013. The mailings included twenty-two legal mailings on May 2,2013,
twenty-seven legal mailings on June 4,2013, and fifteen legal mailings on June 7,
2013.
6. According to Matthews, plaintiff claims that he is indigent and has no funds to
pay for postage or writing supplies. (0.1. 26, Matthews dec!.) The court takes judicial
notice that on April 3, 2013, the Superior Court of the State of Delaware in and for New
Castle County denied plaintiff's motion to proceed in forma pauperis based upon factual
findings of the Superior Court regarding plaintiff's assets, which include unclaimed
monies held by the Superior Court totaling almost $70,000. See Kostyshyn v. State,

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V.

State, 2013 WL 1857541 (Del. Super. Ct. Apr. 17,2013). Although plaintiff currently

owes the HRYCI over $2,000 for legal copies and postage, it continues to provide him
with postage and supplies for his legal mail.
7. It is well settled that "prisoners have a constitutional right of access to the
courts," Bounds v. Smith, 430 U.S. 817, 821 (1977). A prisoner making an access to
courts claim is required to show that the denial of access caused actual injury. Lewis v.
Casey, 518 U.S. 343, 352-54 (1996). For claims involving inadequate legal supplies
such as paper, pens, and photocopying, a plaintiff must show that the alleged
inadequacies resulted in an "actual injury" where he was actually denied access to the
courts. See Lewis, 518 U.S. at 351-52. Actual injury occurs when a prisoner
demonstrates that a "nonfrivolous" and "arguable" claim was lost because of the denial
of access to the courts. Christopher v. Harbury, 536 U.S. 403, 415 (2002). The injury
requirement is not satisfied by just any type of frustrated legal claim; the legal claim
must relate to a direct or collateral challenge to a prisoner's sentence or conditions of
confinement. Lewis, 518 U.S. at 349 ("Impairment of any other litigating capacity is
simply one of the incidental (and perfectly constitutional) consequences of conviction
and incarceration.").
8. "Meaningful access to the courts" may require the state to shoulder expenses
to ensure prisoners have meaningful access to the courts. Bounds at 823-824. The
court considers whether the prisoner is granted "a reasonably adequate opportunity to
present claimed violations of fundamental constitutional rights to the courts." Id. at 825.
While a state must provide prisoners an opportunity to send legal papers, see id., it

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does not mean that prisoners have a constitutional right to unlimited free postage.
White v. White, 886 F.2d 721, 723 (4th Gir. 1989); King v. A tiyeh , 814 F.2d 565,568

(9th Gir. 1987); Chandler v. Coughlin, 763 F.2d 110, 114 (2d Gir. 1985); Hoppins v.
Wallace, 751 F.2d 1161, 1162 (11th Gir. 1985); Twyman v. Crisp, 584 F.2d 352, 359

(10th Gir. 1978); Bach v. Coughlin, 508 F.2d 303, 307 (7th Gir. 1974).
9. Plaintiff does not indicate how he was denied "meaningful access to the
courts." Bounds, 430 U.S. at 823. He was not blocked from sending legal mail. Indeed,
he is afforded a reasonable amount of postage per week that can be used to send legal
mail. In addition, he has unfettered use of the State interoffice mail system. Gourts
have held similar mail policies to be constitutional. See, e.g. Hoppins, 751 F.2d at 1162
(holding that "the furnishing of two free stamps a week to indigent prisoners is (1)
adequate to allow exercise of the right to access to the courts, and (2) adequate to
allow a reasonable inmate to conduct reasonable litigation in any court"); Twyman, 584
F.2d at 358-60 (finding a similar stamp policy that only provided free postage for an
indigent inmate (defined as an inmate with less than $5 in his account) was
constitutional). While plaintiff is restricted in the number of photocopies available to
him, the HRYGI has not precluded him from making any photocopies and, notably, will
allow photocopies over twenty upon the showing of a court order that indicates plaintiff
may need to make additional copies.
10. In light of the exhibits submitted by defendants, the court finds that plaintiff
has not demonstrated the likelihood of success on the merits. Plaintiff has not shown
that he has or will suffer a relevant, actual injury because of the reduced allowable

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postage and photocopies. Hence, he has failed to meet the burden of proof required to
demonstrate that he is being denied access to the courts. Plaintiff has neither
demonstrated the likelihood of success on the merits, nor has he demonstrated
irreparable harm to justify the issuance of immediate injunctive relief. Finally, plaintiff's
copious filings belie his claim that he does not have adequate access to the courts.
Therefore, the court will deny his motions for injunctive relief.
11. Reconsideration. Plaintiff appears to have filed a motion for
reconsideration of the June 3,2013 order (0.1. 17) that denied his motion for injunctive
relief to keep nitroglycerin on his person, combined with a renewed motion for injunctive
relief to keep the nitroglycerin on his person or, alternatively, to transfer him to the
infirmary where the nitroglycerin tables are kept. (See 0.1. 20) The purpose of a
motion for reconsideration is to "correct manifest errors of law or fact or to present
newly discovered evidence." Max's Seafood Cafe ex rei. Lou-Ann, Inc. v. Quinteros,
176 F.3d 669,677 (3d Gir. 1999). "A proper Rule 59(e) motion ... must rely on one of
three grounds: (1) an intervening change in controlling law; (2) the availability of new
evidence; or (3) the need to correct a clear error of law or fact or to prevent manifest
injustice. Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Gir. 2010) (citing N. River Ins.
Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Gir. 1995).

12. Plaintiff has failed to demonstrate any of the aforementioned grounds to
warrant a reconsideration of the court's June 3,2012 order that denied him injunctive
relief. In addition, the court declines to revisit the issue to the extent that plaintiff
intended to file a renewed motion for injunctive relief. Therefore, the motion is denied.

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13. Request for counsel. Plaintiff requests counsel to assist him in obtaining
his complete medical file. The requests for counsel are denied without prejudice to
renew. A pro se litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel. 1 See Brightwell v. Lehman, 637 F.3d 187, 192 (3d
Cir. 2011); Tabron v. Grace,6 F.3d 147, 153 (3d Cir. 1993). However, representation
by counsel may be appropriate under certain circumstances, after a finding that a
plaintiff's claim has arguable merit in fact and law. Tabron, 6 F.3d at 155.
14. After passing this threshold inquiry, the court should consider a number of
factors when assessing a request for counsel, including:
(1) the plaintiff's ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree

to which factual investigation will be necessary and the ability

of the plaintiff to pursue investigation; (4) the plaintiff's capacity

to retain counsel on his own behalf; (5) the extent to which a

case is likely to turn on credibility determinations; and

(6) whether the case will require testimony from expert witnesses.

Tabron, 6 F.3d at 155-57; accord Parham, 126 F.3d at 457; Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002).
15. At present, plaintiff's filings indicate that he possesses the ability to
adequately pursue his claims. Moreover, this case is in its early stages and service has

not yet taken place. Upon consideration of the record, the court is not persuaded that
representation by an attorney is warranted at this time. The court can address the
issue at a later date should counsel become necessary.

See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now § 1915(e)(1» does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
being "request.".
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16. Discovery. To the extent plaintiff seeks to compel defendants to produce
his medical file, the motion is denied as premature. This case is in its early stages.
Plaintiff has yet to file a motion to proceed in forma pauperis or pay the filing fee, the
court has yet to screen the complaint, and no parties have been served.
17. Conclusion. The pending motions (0.1. 18,20,28) are denied. Plaintiff is
placed on notice that the court will docket, but not consider, further motions until plaintiff
complies with the May 30, 2013 order (D. I. 16) that requires him to either submit a
request to proceed in forma pauperis or pay the filing fee in full.

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