Sidney v. Caron et al
Filing
98
MEMORANDUM DECISION AND ORDER: ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 87 ) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendants' motion to dismiss (Dkt. No. 53 ) is DENIED; and it is further ORDERED that Defendants must file an Answer or otherwise respond to Plaintiff's Amended Complaint within thirty (30) days of this Decision and Order; and it is further ORDERED that Plaintiffs two motions for appointment of counsel (Dkt. Nos. 90, 91) are DENIED without prejudice. Plaintiff may file a seventh motion for counsel only at the time of any trial in this action. Any other motion for counsel shall be struck by the Clerk's Office without further Order of this Cour t. In addition, Plaintiff is advised that, if he continues to engage in a vexatious motion practice, he will be subject to sanctions, which may include the dismissal of his action. Signed by Judge Glenn T. Suddaby on 9/26/2011. (ptm, ) (Copy served on plaintiff by regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
EUGENE SIDNEY,
Plaintiff,
9:09-CV-1326
(GTS/ATB)
v.
T.L. CARON, Corrections Counselor, Upstate
Correctional Facility; T. TYNON, Senior Corrections
Counselor, Upstate Correctional Facility; M. LIRA,
Deputy Superintendent for Program Services, Upstate
Correctional Facility; BRIAN S. FISCHER,
Commissioner, NYS DOCS; MR. J. BELLNIER;
and MR. RANIERI,
Defendants.
_____________________________________________
APPEARANCES:
EUGENE SIDNEY, 94-A-0600
Plaintiff, Pro Se
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
CHRISTOPHER W. HALL, ESQ.
Assistant Attorney General
HON. GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Eugene
Sidney (“Plaintiff”) against the six above-captioned individuals (“Defendants”), are the
following: (1) Defendants’ motion to dismiss Plaintiff’s Amended Complaint, pursuant to 28
U.S.C. § 1915(g), based on Plaintiff having acquired three strikes before commencing this action,
and not demonstrating the applicability of the imminent-danger exception (Dkt. No. 53); and (2)
United States Magistrate Judge Andrew T. Baxter’s Report-Recommendation recommending that
Defendants' motion be denied (Dkt. No. 87); (3) Plaintiff’s fifth and sixth motions for
appointment of counsel (Dkt. Nos. 90, 91).1 For the reasons set forth below, the ReportRecommendation is accepted and adopted in its entirety; Defendants’ motion is denied; and
Plaintiff’s fifth and sixth motions for appointment of counsel are denied without prejudice.
I.
RELEVANT BACKGROUND
Plaintiff filed his Complaint in this action on November 27, 2009. (Dkt. No. 1.) On April
23, 2010, Plaintiff submitted an Amended Complaint. (Dkt. No. 15.) Construed with the utmost
of liberality, Plaintiff's Amended Complaint alleges that, while he was incarcerated at Upstate
Correctional Facility in Malone, New York, Defendants violated his rights under the First, Eighth
and/or Fourteenth Amendments to the United States Constitution in the following respects: (1)
Defendants issued false misbehavior reports against him in retaliation for his engaging in
protected activity; (2) Defendants violated his due process rights by issuing false misbehavior
reports, and imposing sanctions, against him; (3) Defendants impeded his ability to file
grievances; (4) Defendants disrupted the free-flow of his mail; (5) Defendants subjected him to
inadequate conditions of confinement; and (6) Defendants conspired to deny him his
constitutional rights. (See generally Dkt. No. 15 [Plf.’s Am. Compl.].) Familiarity with the
factual allegations supporting these claims in Plaintiff’s Amended Complaint is assumed in this
1
Plaintiff’s first motion for the appointment of counsel was denied on April 1,
2010. (Dkt. Nos. 11, 13.) Plaintiff’s second motion for the appointment of counsel was denied
on December 6, 2010. (Dkt. Nos. 27, 29.) Plaintiff’s third motion for the appointment of
counsel was denied on March 2, 2011. (Dkt. Nos. 52, 56.) Plaintiff’s fourth motion for the
appointment of counsel was denied on May 15, 2011. (Dkt. Nos. 66, 72.)
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Decision and Order, which is intended primarily for review by the parties.
On February 20, 2011, Defendants filed a motion to dismiss, pursuant to 28 U.S.C. §
1915(g), based on Plaintiff having accumulated “three strikes” under the Prison Litigation Reform
Act (“PLRA”). (Dkt. No. 53.)
On March 10, 2011, Plaintiff submitted a response in opposition to Defendants’ motion.
(Dkt. No. 57.) In his response, Plaintiff “does not foolishly contest the three exhibiting samples
defendats have put forth in their moving papers [as demonstrating three strikes,]” but instead
argues that he has alleged facts plausibly suggesting that the imminent danger exception applies
to one or more of his claims. (Id.)
On August 8, 2011, Magistrate Judge Baxter issued a Report-Recommendation
recommending that Defendants’ motion be denied, finding that a review of Plaintiff’s litigation
history revealed that Plaintiff has acquired only two strikes. (Dkt. No. 87.)
II.
APPLICABLE LEGAL STANDARDS
A.
Standard of Review
When specific objections are made to a magistrate judge's report-recommendation, the
Court makes a “de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C).2 When
only general objections are made to a magistrate judge's report-recommendation, or where the
2
On de novo review, “[t]he judge may . . . receive further evidence. . . .” 28 U.S.C.
§ 636(b)(1)(C). However, a district court will ordinarily refuse to consider evidentiary material
that could have been, but was not, presented to the Magistrate Judge in the first instance. See,
e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a
magistrate's report before the district court, a party has no right to present further testimony
when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”).
3
objecting party merely reiterates the same arguments made in its original papers submitted to the
magistrate judge, the Court reviews the report-recommendation for clear error or manifest
injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22,
1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).3
Similarly, when a party makes no objection to a portion of a report-recommendation, the Court
reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826,
1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ.
P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the
appropriate review, the Court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
B.
Legal Standard Governing a Motion to Dismiss pursuant to 28 U.S.C. §
1915(g)
Magistrate Judge Baxter correctly recited the legal standard governing motions to dismiss
pursuant to 28 U.S.C. § 1915(g). (Dkt. No. 87.) As a result, this standard is incorporated by
reference in this Decision and Order.
III.
ANALYSIS
A.
Defendants’ Motion to Dismiss
As an initial matter, neither party has filed objections to the Report-Recommendation. As
a result, the Court need review the Report-Recommendation for only clear error.
3
See also Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F. Supp.
380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
4
After carefully reviewing all of the papers in this action, including Magistrate Judge
Baxter's Report-Recommendation, the Court concludes that Magistrate Judge Baxter's thorough
Report-Recommendation is correct in all respects. (Dkt. No. 87.) Magistrate Judge Baxter
employed the proper standards, accurately recited the facts, and reasonably applied the law to
those facts. (Id.) As a result, the Court adopts the Report-Recommendation in its entirety for the
reasons stated therein.
B.
Plaintiff’s Two Motions for Appointment of Counsel
Plaintiff has filed two motions for appointment of counsel. (Dkt. Nos. 90, 91.) For
substantially the same reasons that his first four motions for appointment of counsel were denied
without prejudice, his current two motions for appointment of counsel are denied without
prejudice. (See generally Dkt. Nos. 13, 29, 56, 72.) More specifically, after carefully reviewing
the file in this action, the Court finds as follows: (1) it appears as though, to date, Plaintiff has
been able to effectively litigate this action; (2) it appears that the case does not present issues that
are novel or more complex than those raised in most prisoner civil rights actions; (3) while it is
possible that there will be conflicting evidence implicating the need for cross-examination at the
time of the trial (as is the case in many actions brought under 42 U.S.C. § 1983 by pro se
litigants), it is highly probable that this Court will appoint trial counsel at the final pretrial
conference (should this case survive the filing of any further dispositive motions); and (4) the
Court is unaware of any special reasons why appointment of counsel at this time would be more
likely to lead to a just determination of this litigation.
For these reasons, Plaintiff’s two motions for appointment of counsel are denied without
prejudice. Plaintiff may renew his motion at a later time. However, Plaintiff is cautioned that the
Court has repeatedly advised him that (1) a motion for counsel is premature when an answer has
not yet been filed (which has not yet occurred in this action), and (2) he may file another motion
5
for appointment of counsel only upon a change in circumstances or at a time closer to a trial in
this action. (See generally Dkt. Nos. 13, 29, 56, 72.) However, Plaintiff has repeatedly flouted
the Court’s directives, and has continued to file premature and unmerited motions for
appointment for counsel. (See generally Dkt. Nos. 27, 52, 66, 90, 91.)
A litigant may not avoid his or her obligations under Fed. R. Civ. P. 11(b)(1) and
16(f)(1)(C) simply because he or she is proceeding pro se. The Court has the inherent authority
to manage its docket, which has become clogged with Plaintiff’s frivolous filings. As a result,
Plaintiff may file a seventh motion for counsel only at the time of any trial in this action. Any
other motion for counsel shall be struck by the Clerk's Office without further Order of this Court.
C.
Plaintiff’s Other Submissions
It bears noting that Plaintiff’s vexatious motion practice has not been restricted to filing
premature and unmerited motions for appointment of counsel. During the course of this action,
Plaintiff has filed more than ten documents that attempt–in a piecemeal fashion in violation of
Local Rule 7.1–to substantiate his efforts to find pro bono counsel. (See, e.g., Dkt. Nos. 60, 61,
63, 64, 67, 69, 70, 71, 73, 88.) Over a period of less than 17 months, he has filed some 21
requests for courtesy copies of the docket sheet (each of which has been honored). (Dkt. Nos. 10,
18, 19, 20, 23, 25, 27, 31, 46, 50, 55, 59, 62, 65, 68, 74, 76, 79, 85, 86, 89.) In addition, he has
filed more than 12 documents that either (1) fail to state the relief sought and the specific grounds
therefor, as required by Fed. R. Civ. P. 7(b)(1) and Local Rule 7.1(a), and to submit that request
in the form required by the Local Rule 7.1, or (2) in a piecemeal fashion only obliquely, if at all,
relate to a motion in this action. (See, e.g., Dkt. Nos. 28, 43, 47, 48, 49, 58, 75, 77, 82, 83, 84,
96.) Finally, he has filed four documents that attempt to improperly supplement, during the phase
for Objections to Magistrate Judge Baxter’s Report-Recommendation, the record on Defendants’
6
motion. (Dkt. Nos. 92, 93, 94, 95.)4 While the Court sees little utility in striking these
submissions at this point, the Court advises Plaintiff that, if he continues to engage in such a
vexatious motion practice, he will be subject to sanctions, which may include the dismissal of his
action. Plaintiff is directed to consulted the Pro Se Handbook and Local Rules of Practice, which
were provided to him on December 4, 2009, and which are also on file at his correctional facility.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 87) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion to dismiss (Dkt. No. 53) is DENIED; and it is
further
ORDERED that Defendants must file an Answer or otherwise respond to Plaintiff’s
Amended Complaint within thirty (30) days of this Decision and Order; and it is further
ORDERED that Plaintiff’s two motions for appointment of counsel (Dkt. Nos. 90, 91) are
DENIED without prejudice. Plaintiff may file a seventh motion for counsel only at the time
of any trial in this action. Any other motion for counsel shall be struck by the Clerk’s
Office without further Order of this Court. In addition, Plaintiff is advised that, if he
continues to engage in a vexatious motion practice, he will be subject to sanctions, which
may include the dismissal of his action.
Dated: September 26, 2011
Syracuse, New York
4
The Court notes that three documents in question were dated September 8 and 12,
2011, while the deadline for Objections to Magistrate Judge Baxter’s Report-Recommendation
was August 22, 2011. (Dkt. Nos. 87, 92-94.)
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