Zielinski v. Annucci et al
Filing
111
DECISION AND ORDER: ORDERED that 106 Motion for Preliminary Injunction is DENIED. Signed by Judge David N. Hurd on 11/23/2020. {order served via regular mail on plaintiff}(nas, )
Case 9:17-cv-01042-DNH-TWD Document 111 Filed 11/23/20 Page 1 of 15
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JEREMY ZIELINSKI,
Plaintiff,
9:17-CV-1042
(DNH/TWD)
v.
ANTHONY ANNUCCI, DOCCS
Acting Commissioner, MICHAEL
KIRKPATRICK, Superintendent;
Clinton Correctional Facility, JOHN
DOES 1-9, TRAVIS J. BAKER, M.
FRENCH, LAMOY, C. REED, and
S. CASTINE,
Defendants.
APPEARANCES:
OF COUNSEL:
JEREMY ZIELINSKI
16-A-3601
Plaintiff, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
HON. LETITIA JAMES
New York State Attorney General
Attorney for Defendants
The Capitol
Albany, NY 12224
WILLIAM A. SCOTT, ESQ.
Ass't Attorney General
DAVID N. HURD
United States District Judge
DECISION and ORDER
I. INTRODUCTION
Pro se plaintiff Jeremy Zielinski ("Zielinski" or "plaintiff") commenced this civil rights
action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983 ("Section 1983"),
Case 9:17-cv-01042-DNH-TWD Document 111 Filed 11/23/20 Page 2 of 15
together with an application to proceed in forma pauperis ("IFP"). Dkt. No. 1 ("Compl."); Dkt.
No. 7 ("IFP Application"). Plaintiff also filed a motion for a preliminary injunction and
temporary restraining order. Dkt. No. 4 ("First Motion for Injunctive Relief").
The complaint alleged that Commissioner of the New York Department of Corrections
and Community Supervision ("DOCCS") Anthony Annucci, Superintendent of Clinton
Correctional Facility Michael Kirkpatrick, and John Doe Nos. 1-9 violated plaintiff's
constitutional rights under the Eighth and Fourteenth Amendments by wrongfully denying him
meals on multiple occasions because his name was left off of "chow lists." See generally,
Compl. The complaint further alleged that this action was brought on behalf of plaintiff and
"a class of similarly situated persons . . . consisting of all inmates at Clinton." Id. at ¶ 4.
By Decision and Order entered on November 29, 2017, the Court (1) deemed the
action to be brought by plaintiff in his individual capacity only; (2) found that plaintiff's Eighth
Amendment claims survived initial review pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A; (3) dismissed plaintiff's Fourteenth Amendment claims without prejudice;
(4) denied the First Motion for Injunctive Relief; and (5) directed the New York State Attorney
General's Office to produce information, to the extent possible, regarding the names of the
unidentified John Doe corrections officers. See generally, Dkt. No. 10 ("November 2017
Order").
Thereafter, defendants Annucci and Kirkpatrick were served, and counsel for the
defendants filed a status report indicating that DOCCS was unable to determine the names
of the John Doe defendants responsible for preparing the relevant chow lists. Dkt. No. 14
("Acknowledgment of Service"); Dkt. No. 16 ("Status Report").
Before defendants Annucci and Kirkpatrick responded to the complaint, plaintiff filed
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another application for a temporary restraining order and preliminary injunction wherein he
sought an Order that defendants "stop denying me food." Dkt. No. 17 ("Second Motion for
Injunctive Relief"). Defendants opposed the motion, and plaintiff filed a reply in further
support of his motion. Dkt. No. 19 ("Opposition to Second Motion for Injunctive Relief"); Dkt.
No. 20 ("Reply in Further Support of Second Motion for Injunctive Relief"). After the Second
Motion for Injunctive Relief was fully briefed, defendants filed an answer to the complaint,
and a mandatory pretrial discovery and scheduling order was issued. Dkt. No. 21 ("Answer");
Dkt. No. 22 ("Scheduling Order").
By Order entered on March 19, 2018, the Court ref erred Zielinski's request for
injunctive relief to the Honorable Therese Wiley Dancks for the purpose of scheduling and
overseeing limited discovery concerning the motion, and to appoint pro bono counsel f or
plaintiff to assist in discovery, and any evidentiary hearing that may be necessary on the
motion. See Dkt. No. 24.
On May 4, 2018, Judge Dancks directed defendants to produce to the Court, for an in
camera review, certain documents pertaining to the meal deprivation claim while the Court
made efforts to locate pro bono counsel for plaintiff. Dkt. No. 26 ("May 2018 Order").
Following the May 2018 Order, defendants served Rule 26 disclosures and plaintiff filed a
third motion for injunctive relief wherein he sought an Order preventing defendant Annucci
from confining him in involuntary protective custody ("IPC") or otherwise transferring him from
general population at Clinton Correctional Facility or transferring him out of that facility. See
Dkt. No. 27 ("Status Report Regarding Disclosures"); Dkt. No. 28 ("Third Motion for Injunctive
Relief"). Plaintiff then filed a motion to amend his complaint, and shortly thereafter filed a
motion seeking leave to file a second supplemental complaint. Dkt. No. 29 ("Motion to
3
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Amend"); Dkt. No. 33 ("Motion to Supplement").
By Order entered on June 7, 2018, attorney Jordan R. Pavlus, Esq., of the Byrne
Costello Law Firm was appointed as pro bono counsel for the purpose of assisting with
discovery on the Second Motion for Injunctive Relief. Dkt. No. 34. Roughly one week later,
counsel filed a response in opposition to the Motion to Am end and a status report regarding
the Court's directive to submit documents for an in camera review, together with the
requested documents. Dkt. No. 39 ("Opposition to Motion to Amend"); Dkt. No. 40 ("Status
Report Regarding In Camera Production"). Thereafter, plaintiff filed a letter motion
requesting an order directing his immediate return to Clinton Correctional Facility, along with
a notice of change of address. Dkt. No. 43 ("Letter Motion Regarding Transfer"); Dkt. No. 44
("Notice of Change of Address").
Following limited discovery on the issue of meal denials relevant to the Second Motion
for Injunctive Relief, plaintiff filed a further reply in support of his motions for injunctive relief.
See Dkt. No. 66.
On March 19, 2019, Judge Dancks issued a Report-Recommendation and Order
regarding plaintiff's motions for injunctive relief (Dkt. Nos. 17, 28, 43) and motions to file a
first amended complaint and a second supplemental complaint (Dkt. Nos. 29, 33). See Dkt.
No. 67 ("March 2019 Order"). With respect to plaintiff's motions for injunctive relief, Judge
Dancks recommended that (1) plaintiff's Second Motion for Injunctive Relief be denied
without prejudice, (2) plaintiff's Third Motion for Injunctive Relief be denied as moot, and (3)
plaintiff's motion seeking to be returned to Clinton Correctional Facility be denied. Id. at 6-11,
31-32. With respect to plaintiff's pleadings motions, Judge Dancks granted the Motion to
Amend insofar as the proposed amended complaint asserted an Eighth Amendment claim
4
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for denial of meals against defendants Baker, French, Castine, and Reed, and a First
Amendment retaliation claim against defendant Lamoy, denied the Motion to Amend insofar
as the proposed amended complaint asserted any other claims for relief, and denied the
Motion to Supplement. Id. at 15-33. Judge Dancks also directed the Clerk to terminate pro
bono counsel. Id. at 33.
By Decision and Order entered on July 3, 2019, this Court accepted and adopted the
March 2019 Order in its entirety. Dkt. No. 74.
Thereafter, the proposed amended complaint was docketed as the operative pleading,
defendants Lamoy, Reed, Baker, Castine, and French were served, answers were filed on
behalf of all defendants, and the discovery and dispositive motion deadlines were reset. Dkt.
No. 76 ("Am. Compl."); Dkt. No. 78 ("Answer By Annucci and Kirkpatrick to Am. Compl.");
Dkt. No. 81 ("Answer By Lamoy, Reed, Baker, Castine, and French to Am. Compl."); Dkt. No.
82 ("Order Resetting Deadlines").
Following the close of discovery, defendants moved for summary judgment. Dkt. No.
92 ("Motion for Summary Judgment"). In August, 2020, plaintiff filed a cross-motion seeking
the following relief: (1) an Order unsealing the documents filed by defendants in camera; (2)
an Order vacating the July 2019 Order in part; (3) an Order imposing sanctions on
defendants for spoliation of certain discovery; and (4) an Order re-opening discovery for
plaintiff to obtain copies of disciplinary records of defendants, and information necessary to
oppose the Motion for Summary Judgment. Dkt. No. 105 ("Cross-Motion"). Shortly
thereafter, plaintiff, who is now incarcerated at Auburn Correctional Facility, see Dkt. No. 73,
filed a motion for a temporary restraining order and preliminary injunction barring defendant
Annucci from "permitting any use of 'chow lists' at any DOCCS facility[.]" Dkt. No. 106
5
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("Fourth Motion for Injunctive Relief") at 2. Included in the Fourth Motion for Injunctive Relief
was a request for the Court to (1) appoint counsel "for the purpose of preparing an amended
complaint[,] . . . filing a motion to certify a class [comprised] of all persons in DOCCS
custody[,]" and filing a motion for "statewide injunctive relief eliminating all use of 'chow
lists[,]'" and (2) reopen discovery to conduct a further inquiry regarding the maintenance of
"chow lists." Id. at 4.
On September 4, 2020, defendants filed an opposition to plaintiff's Cross-Motion, and
on September 18, 2020, defendants filed an opposition to the Fourth Motion for Injunctive
Relief. Dkt. No. 107 ("Opposition to Cross-Motion"); Dkt. No. 110 ("Opposition to Fourth
Motion for Injunctive Relief").
For the sake of efficiency, the Court will consider plaintiff's Fourth Motion for Injunctive
Relief herein. The Motion for Summary Judgment and Cross-Motion will be decided
separately, and in due course.
II. FOURTH MOTION FOR INJUNCTIVE RELIEF
Plaintiff seeks an injunction barring defendant Annucci from "permitting any use of
'chow lists' at any DOCCS facility[.]" See Fourth Motion for Injunctive Relief at 2. Plaintiff
states that he is requesting such relief because he is "again being denied meals for no
legitimate reason[,]" despite this litigation and defendant Annucci's knowledge that "chow
lists" are used to deny inmates meals. Id. at 2.
According to plaintiff, on August 29, 2020, he was denied a meal because he was left
off the "chow list[,]" despite advising "the CO doing the dinner 'chow list' that [he] wanted
chow[.]" Id. at 3. Plaintiff further states that other inmates housed in the same company with
him continue to be left off the "chow list" because staff "do not make announcements that
6
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people can hear[.]" Id.1
Preliminary injunctive relief "'is an extraordinary and drastic remedy, one that should
not be granted unless the movant, by a clear showing, carries the burden of persuasion.'"
Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir. 2005) (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). "In general, district courts may grant a
preliminary injunction where a plaintiff demonstrates 'irreparable harm' and meets one of two
related standards: 'either (a) a likelihood of success on the merits, or (b) sufficiently serious
questions going to the merits of its claims to make them fair ground for litigation, plus a
balance of the hardships tipping decidedly in favor of the moving party.'" Otoe-Missouria
Tribe of Indians v. New York State Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014)
(quoting Lynch v. City of N.Y., 589 F.3d 94, 98 (2d Cir. 2009) (internal quotation marks
omitted)).
However, when the moving party seeks a "mandatory preliminary injunction that alters
the status quo by commanding a positive act," the burden is "even higher." Cacchillo v.
Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (citing Citigroup Global Mkts., Inc. v. VCG
Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010) (internal
quotation marks omitted)). Thus, a mandatory preliminary injunction "should issue only upon
a clear showing that the moving party is entitled to the relief requested, or where extreme or
very serious damage will result from a denial of preliminary relief." Citigroup Global Mkts.,
1
On September 15, 2020, the Court received from plaintiff a letter request for reconsideration of a Text
Notice setting a deadline for defendants to respond to the Fourth Motion for Injunctive Relief. Dkt. No. 108
("Supplement to the Fourth Motion for Injunctive Relief"). In that submission, plaintiff stated, among other things,
that he was denied a breakfast meal on September 11, 2020, because "the CO working [his] company . . . crept
by without stopping and then refused to open [his] cell, claiming [he] 'didn't put down' on the 'chow list[,]'" and two
other corrections officials refused to remedy the situation despite plaintiff's verbal request. Id. at 1.
7
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598 F.3d at 35 n.4 (internal quotation marks omitted).2 "In the prison context, a request for
injunctive relief must always be viewed with a great caution so as not to immerse the federal
judiciary in the management of state prisons." Fisher v. Goord, 981 F. Supp. 140, 167-68
(W.D.N.Y. 1997) (citing Farmer v. Brennan, 511 U.S. 825, 846-47 (1994)).
Plaintiff's Fourth Motion for Injunctive Relief seemingly differs from his First Motion for
Injunctive Relief and Second Motion for Injunctive Relief only insofar as plaintiff is now
housed at a different correctional facility. As plaintiff acknowledged in his First Motion for
Injunctive Relief, the relief he seeks, i.e., restraining officials from DOCCS from using "chow
lists[,]" "does no more than make the defendants comply with their own health policies." See
First Motion for Injunctive Relief at 3.
As this Court noted in the November 2017 Order, injunctions directing a party to
refrain from misconduct or other wrongdoing – so-called "obey the law" injunctions – are
generally disfavored by courts because they are vague, not readily enforceable, and would
not subject defendants to any requirement not already imposed by law. See Rowe v. New
York State Div. of the Budget, No. 1:11-CV-1150 (LEK/DRH), 2012 W L 4092856, at *7
(N.D.N.Y. Sept. 17, 2012) (citing N.L.R.B. v. Express Pub. Co., 312 U.S. 426, 435-36
(1941)).
Furthermore, plaintiff's argument in support of his Fourth Motion for Injunctive Relief is
that certain non-party officials at Auburn Correctional Facility have acted with "a deliberately
indifferent approach to 'chow lists[.]'" See Fourth Motion for Injunctive Relief at 3. In other
2
Under the Prison Litigation Reform Act, preliminary injunctive relief in any civil action with respect to
prison conditions must be narrowly drawn, extend no further than necessary to correct the harm, and be the least
intrusive means necessary to correct that harm. See 18 U.S.C. § 3626(a)(2). In considering an application for
prospective relief, the court is required to give substantial weight to any adverse impact such relief may have on
public safety or on the operation of the criminal justice system. See 18 U.S.C. § 3626(a)(1)(A).
8
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words, plaintiff does not contend that the use of "chow lists" has prevented him from
receiving meals. Rather, he contends that the way certain officials at Auburn Correctional
Facility create or manage "chow lists" has resulted in him missing two meals over a two and
a half week period.3
Under such circumstances, plaintiff has failed to establish that an injunction requiring
defendant Annucci to eliminate the use of "chow lists" at all state correctional facilities is the
least intrusive means necessary to correct the alleged harm. See 18 U.S.C. § 3626(a)(2).
Moreover, an injunction against non-party officials from Auburn Correctional Facility
would not be appropriate. See Candelaria v. Baker, No. 00-CV-0912, 2006 WL 618576, at
*3 (W.D.N.Y. Mar. 10, 2006) ("To prevail on a motion for preliminary injunctive relief, the
moving party must establish a relationship between the injury claimed in the motion and the
conduct giving rise to the complaint." (internal quotation marks and citations omitted)); Lewis
v. Johnston, No. 9:08-CV-0482 (TJM/ATB), 2010 WL 1268024, at *3 (N.D.N.Y. Apr. 1, 2010)
(denying motion for injunctive relief based upon actions taken by staff at Great Meadow
Correctional Facility in 2010, where the complaint alleged wrongdoing that occurred at
Franklin and Upstate Correctional Facilities in 2006 and 2007); In re Rationis Enterprises,
Inc. of Panama, 261 F.3d 264, 270 (2d Cir. 2001) ("A court may not grant a final, or even an
interlocutory, injunction over a party over whom it does not have personal jurisdiction.");
Dizak v. Hawks, No. 9:15-CV-1171 (LEK/TWD), 2016 WL 4702438, at *2-3 (N.D.N.Y. Sept.
3
Insofar as plaintiff contends that unidentified officials at Auburn Correctional Facility have also wrongly
used "chow lists" on unidentified occasions to deny meals to other unidentified inmates, the Court has already
made clear that (1) plaintiff, as a pro se litigant, cannot maintain a class action because non-attorneys may not
represent anyone other than themselves, and (2) "this action shall be considered only as an action brought by
plaintiff in his individual capacity" until the requirements of Rule 23 of the Federal Rules of Civil Procedure "have
been satisfied." See November 2017 Order at 7, 13. Thus, plaintiff's statements regarding missed meals by
other inmates are immaterial.
9
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8, 2016) ("The Court has no power to enforce an injunction against individuals who are not
parties to the lawsuit. . . . To the extent that Plaintiff seeks injunctive relief against persons
who are not parties to this action, the Court lacks personal jurisdiction to enjoin their
actions.").4
Lastly, and setting aside the aforementioned deficiencies with plaintiff's motion,
plaintiff has failed to make a clear showing that he is entitled to the relief requested, or that
he will suffer extreme or very serious damage if his request is denied. See Citigroup Global
Mkts., 598 F.3d at 35 n.4. Indeed, between the Fourth Motion for Injunctive Relief and the
Supplement to the Fourth Motion for Injunctive Relief, plaintiff identifies only two missed
meals, over a span of two and a half weeks, since his transfer to Auburn Correctional Facility
in June, 2019.
The denial of two meals over a span of two and a half weeks, without any
accompanying evidence that these missed meals created an immediate danger to plaintiff's
health or well-being, does not present an objectively serious deprivation of a basic human
need. See Evans v. Albany County Corr. Facility, No. 9:05-CV-1400 (GTS), 2009 WL
1401645 at *9 (N.D.N.Y. May 14, 2009) ("To establish a valid claim that the denial of food . . .
constitutes an Eighth Amendment violation, one must establish that there was a 'sufficiently
serious condition' that resulted from the food not being received."); Lewis v. Zon, 920 F.
Supp. 2d 379, 387-88 (W .D.N.Y. 2013) (dismissing Eighth Amendment claim based on
allegations that plaintiff was refused food on "July 7, 2004, July 27, 2004 and for part of the
4
Plaintiff has also not established that he exhausted his administrative remedies with respect to the
alleged deprivations that he suffered at Auburn Correctional Facility. See McClenton v. Menifee, No.
05-CV-2844, 2006 WL 2474872, at *17 (S.D.N.Y. Aug. 22, 2006) (denying motion for preliminary injunction
where the underlying claim "[was] not included in the complaint and there [was] no showing that the plaintiff [had]
exhausted his administrative remedies with respect to [that] claim").
10
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day on September 24, 2004[,]" concluding that these alleged deprivations, unaccompanied
by any allegations that plaintiff "experienced any pain, discomfort, or medical problems . . .
simply do not suggest that plaintiff suffered an urgent condition risking degeneration or
extreme pain"); Konovalchuk v. Cerminaro, No. 9:11-CV-01344 (MAD), 2014 W L 272428, at
*21 (N.D.N.Y. Jan. 24, 2014) ("missing two consecutive meals and being deprived of water
during the same period of time, without more, does not give rise to an Eighth Amendment
violation"); Cagle v. Perry, No. 04-CV-1151, 2007 WL 3124806, at *14 (N.D.N.Y. Oct. 24,
2007) (holding that two meal deprivations were not sufficiently numerous, prolonged, or
severe to rise to level of Eighth Amendment violation); Zimmerman v. Seyfert, No. 03-CV1389, 2007 WL 2080517, at *27 (N.D.N.Y. July 19, 2007) (holding that requiring the plaintiff
to go eleven hours without eating did not rise to the level of a constitutional claim).
Moreover, the Fourth Motion for Injunctive Relief lacks any evidence that plaintiff was
denied two meals at Auburn Correctional Facility out of deliberate indifference to his health
and well-being. See Wilson v. Seiter, 501 U.S. 294, 297-99 (1991) (noting that to establish
civil liability for a violation of the conditions of confinement under the Eighth Amendment, an
inmate must demonstrate that (1) the conditions were so serious that they constituted a
denial of the "minimal civilized measure of life's necessities," and (2) the prison officials acted
with "deliberate indifference"); Woodward v. Ali, No. 9:13-CV-1304 (LEK/RFT), 2015 WL
5711899, at *4, *12 (N.D.N.Y. Sept. 29, 2015) (dismissing Eighth Amendment conditions-ofconfinement claim based on deprivation of meals because plaintiff failed to "establish[ ] that
the deprivation of food posed an immediate danger to his health" or that the named
defendants "played any role in the deprivation of meals or . . . acted with the requisite
subjective state of mind").
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Based upon the foregoing, plaintiff's Fourth Motion for Injunctive Relief (Dkt. No. 106)
is denied.
III. REQUEST FOR APPOINTMENT OF COUNSEL
As noted, plaintiff's Fourth Motion for Injunctive Relief includes a request for
appointment of counsel "for the purpose of preparing an amended complaint[,] . . . filing a
motion to certify a class [comprised] of all persons in DOCCS custody[,]" and filing a motion
for "statewide injunctive relief eliminating all use of 'chow lists[.]'" Id. at 4.
It is well-settled that there is no right to appointment of counsel in civil matters.
Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). Title 28 of United States Code Section
1915 specifically provides that a court may request an attorney to represent any person
"unable to afford counsel." 28 U.S.C. § 1915(e)(1). Appointment of counsel must be done
carefully in order to preserve the "precious commodity" of volunteer lawyers for those litigants
who truly need a lawyer's assistance. Cooper v. A. Sargenti, Inc., 877 F.2d 170, 172-73 (2d
Cir. 1989).
In Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994), the Second
Circuit reiterated the factors that a court must consider in ruling upon such a motion. In
deciding whether to appoint counsel, the court should f irst determine whether the indigent's
position seems likely to be of substance. If the claim meets this threshold requirement, the
court should then consider a number of other factors in making its determination. See id. at
1341 (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)); Sawma v. Perales,
895 F.2d 91, 95 (2d Cir. 1990). Among these are
[t]he indigent's ability to investigate the crucial facts, whether
conflicting evidence implicating the need for cross-examination will
be the major proof presented to the fact finder, the indigent's ability
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to present the case, the complexity of the legal issues, and any
special reason ... why appointment of counsel would be more likely
to lead to a just determination.
Hodge, 802 F.2d at 61. None of these factors are controlling, however, and each case
should be decided on its own facts. Id.
Insofar as plaintiff seeks appointment of counsel to prepare an amended complaint
that includes additional claims by plaintiff in his individual capacity, plaintiff, who was
previously appointed counsel to assist with discovery related to his Second Motion for
Injunctive Relief, has failed to articulate the claims he desires to add to his current pleading,
or explain why appointment of counsel is necessary for him to pursue such claims.
Insofar as plaintiff seeks appointment of counsel to prepare an amended complaint
that includes class action allegations, plaintiff has failed to explain how he will suffer
prejudice if he is not allowed to pursue claims on behalf of a class.5 Furthermore, the Motion
for Summary Judgment is now fully briefed, and plaintiff has not explained why he waited
until after the expiration of the dispositive motion deadline and the filing of the Motion for
Summary Judgment to notify the Court of his desire to further amend his pleading.
Under such circumstances, the Court has no basis to grant a motion to amend. Thus
appointment of counsel for the purpose of preparing any such motion is unwarranted. See
Terminate Control Corp., 28 F.3d at 1341 (noting that in deciding whether to appoint
counsel, the court should first determine whether the indigent's position seems likely to be of
substance); Hodge, 802 F.2d at 60 (noting that 28 U.S.C. § 1915(e)(1) affords district courts
broad discretion in determining whether to appoint counsel to represent indigent civil
litigants.).
5
Of course, certifying a class is not necessary for plaintiff to pursue the relief he seeks in his pleading.
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Moreover, for reasons similar to those discussed above, the Court is not convinced
that plaintiff's position is likely to be of substance. However, even if the Court were to
assume that plaintiff's position may be of substance, plaintiff has demonstrated that he is
fully capable of presenting his case, and, as noted, the Motion for Summary Judgment is
fully briefed. In addition, the Court is not aware of any special reason why appointment of
counsel at this time would be more likely to lead to a just determination of this litigation.6
Based on the foregoing, the Court finds that appointment of counsel is unwarranted.
As a result, plaintiff's request for appointment of counsel is denied. 7
IV. REQUEST TO RE-OPEN DISCOVERY
Plaintiff's Fourth Motion for Injunctive Relief also includes a request that the Court
reopen discovery to conduct a further inquiry regarding the maintenance of "chow lists." Id.
at 4. Although plaintiff's motion fails to provide any explanation as to what specific discovery
he seeks, or explain why such discovery was not timely requested, plaintiff's Cross-Motion
opposes the Motion for Summary Judgement pursuant to Fed. R. Civ. P. 56(d). Accordingly,
the Court declines to reach the issue of whether plaintiff is entitled to additional discovery to
oppose the Motion for Summary Judgment at this time.
However, insofar as plaintiff requests that the Court re-open discovery to assist him
with amending or supplementing his pleading, or renewing his request for injunctive relief,
plaintiff's request is denied for the reasons set forth above, and because plaintiff has failed to
6
If this case proceeds to trial, it is highly probable that this Court will appoint trial counsel at the final
pretrial conference.
7
Plaintiff's motion also does not show that he has made any effort to obtain representation through
either the private sector or public interest firms, and his motion could be denied on this basis alone. See Cooper,
877 F.2d at 173-74.
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show good cause to re-open discovery for these reasons. See Fed. R. Civ. P. 16(b)(4) ("A
schedule may be modified only for good cause and with the judge's consent.").8
V. CONCLUSION
Therefore, it is
ORDERED that
1. Plaintiff's Fourth Motion for Injunctive Relief (Dkt. No. 106) is DENIED as set forth
above; and
2. The Clerk shall serve a copy of this Decision and Order on the parties.
IT IS SO ORDERED.
Dated: November 23, 2020
Utica, New York.
8
On March 6, 2018, and in accordance with Rule 16(b) of the Federal Rules of Civil Procedure, Judge
Dancks issued the Scheduling Order. Pursuant to the Scheduling Order, the initial discovery deadline was
September 7, 2018. Thereafter, the discovery deadline was extended to December 17, 2019. Dkt. No. 82. On
February 20, 2020, in response to a request filed by plaintiff, Judge Dancks afforded plaintiff a final opportunity to
serve further documents on defendants' counsel by February 28, 2020, and expressly advised that no further
extensions would be granted. Dkt. No. 87.
15
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