Brown v. Chappius et al

Filing 109

DECISION AND ORDER. Plaintiff's motion for injunctive relief (Doc. No. 20) is DISMISSED as moot; Plaintiff's motion for appointment of counsel (Doc. No. 88), is DENIED; and Plaintiff's motion to compel (Doc. No. 88) is DISMISSED as moot in part and DENIED in part. Signed by Hon. Leslie G. Foschio on 9/10/2015. (SDW) (Copy of order mailed to Plaintiff.)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
______________________________________
CARL BROWN,
DECISION
and
ORDER

Plaintiff,
v.
PAUL CHAPPIUS, JR., CRAIG DIEGO,
STEPHEN WENDERLICH, PAUL YOUMANS,
JAMEY MORRIS, JEREMY TAYLOR,
DANIEL STAIGHT, and KIRBY BUNNELL,

13-CV-00105A(F)

Defendants.
______________________________________
APPEARANCES:

CARL BROWN, Pro Se
01-A-0717
Great Meadow Correctional Facility
Box 51
Comstock, New York 12821-0051
ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Defendants
KATHLEEN M. KACZOR
Assistant Attorney General, of Counsel
350 Main Street
Suite 300A
Buffalo, New York 14202
JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on
October 14, 2014, for all pretrial matters. The matter is presently before the
undersigned on Plaintiff’s motions for a hearing and injunctive relief filed August 9,
2013, (Doc. No. 20), and for assignment of counsel and to compel discovery filed
November 13, 2014 (Doc. No. 88).

BACKGROUND and FACTS1
Plaintiff Carl Brown (“Plaintiff”), proceeding pro se, commenced this civil rights
action on February 5, 2013, alleging that while incarcerated at Elmira Correctional
Facility (“Elmira”), Defendants, all employees of New York State Department of
Corrections and Community Supervision (“DOCCS”), violated his constitutional rights
under the Eighth and Fourteenth Amendments. Plaintiff particularly alleges Defendants
failed to respond to Plaintiff’s assertions of threats, grievances, and claims of lost trial
transcript and personal property, provided inmates with weapons used to attack Plaintiff,
and refused to protect Plaintiff from the attack. Since commencing this action, Plaintiff
has been transferred from Elmira to Southport Correctional Facility (“Southport”), then
Sing Sing Correctional Facility (“Sing Sing”), and is presently housed at Great Meadow
Correctional Facility (“Great Meadow”).
On August 9, 2013, Plaintiff filed a motion for an injunction (Doc. No. 20)
(“Injunction Motion”), seeking relief against unnamed corrections officers at Sing Sing
Correctional Facility. On September 23, 2013, Defendants filed Defendants’
Memorandum of Law in Opposition to Plaintiff’s Motion for an Injunction (Doc. No. 28)
(“Injunction Motion Response”). Plaintiff has not argued in further support of the
requested injunction. On November 13, 2014, Plaintiff filed a motion for appointment of
counsel (Doc. No. 88) (“Motion for Counsel”), attaching a motion to compel discovery
(“Discovery Motion”). Defendants have not responded in opposition to the Discovery
Motion. Oral argument was deemed unnecessary.

1

The Facts are taken from the pleadings and motion papers filed in this action.

2

Based on the following, the Injunction Motion is DISMISSED as moot; the Motion
for Counsel is DENIED; and the Discovery Motion is DISMISSED as moot in part and
DENIED in part.

DISCUSSION
1.

Motion for Injunction
Plaintiff filed his Motion for Injunction while incarcerated at Sing Sing Correctional

Facility complaining that at Sing Sing, various unnamed DOCCS employees subjected
him to verbal harassment and denied Plaintiff his constitutional right to practice his
religion. Motion for Injunction at 1. In opposition, Defendants argue Plaintiff seeks
injunctive relief as to unnamed persons at Sing Sing who are not named as Defendants
in this action, Injunction Motion Response at 1, Plaintiff’s transfer from Elmira to another
correctional facility has rendered moot any claim for injunctive relief relative to the
claims asserted in his Complaint, id., and Plaintiff’s sparse, single page motion fails to
provide the requisite evidence of actual, imminent danger for injunctive relief. Id.
A plain and thorough reading of the Injunction Motion establishes Plaintiff is
seeking injunctive relief against numerous wrongs he maintains he has endured at
various correctional facilities, including Sing Sing, Southport, and Auburn Correctional
Facility. Plaintiff’s Complaint, however, is asserted against only DOCCS employees at
Elmira. Significantly, it is fundamental that the person against whom injunctive relief is
sought be a party or a person in privity with the parties to the underlying action. See
Fed.R.Civ.P. 65(d)(2) (injunctive relief available against parties, officers, agents,
servants, employees, and attorneys and persons in active concert or participation with
same); Doctor’s Associates, Inc. v. Reinert & Duree, P.C., 191 F.3d 297, 302-03 (2d Cir.
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1999) (Rule 65(d)(2) prohibits court from enjoining nonparties to federal action from
prosecuting their own state court actions against same defendant to federal action
where nonparties were not alleged to have aided and abetted defendants).
Accordingly, inasmuch as Plaintiff seeks injunctive relief against a non-party,
such relief is not available. Fed.R.Civ.P. 65(d)(2); Doctor’s Associates, Inc., 191 F.3d at
302-03. Furthermore, “[i]t is well settled in this [Second] Circuit that a transfer from a
prison facility moots an action for injunctive relief against the transferring facility.” Prins
v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (citing Young v. Coughlin, 866 F.2d 567,
568 n. 1 (2d Cir.), cert. denied, 492 U.S. 909 (1989)). See also Day v. Chaplin, 354
Fed.Appx. 472, 473-74 (2d Cir. Nov. 25, 2009) (affirming district court’s dismissal of
inmate plaintiff’s motion for injunctive relief as moot based on plaintiff’s transfer from
correctional facility where plaintiff sustained the treatment against which such injunctive
relief was sought). Accordingly, insofar as Plaintiff’s Injunction Motion can be construed
as seeking injunctive relief for wrongs at Elmira, upon Plaintiff’s transfer from Elmira to
Southport, then Sing Sing and now Great Meadow such that Plaintiff is no longer
incarcerated at Elmira, Plaintiff cannot obtain injunctive relief relative to Elmira and
Plaintiff’s Motion for Injunctive Relief is DISMISSED as moot.
2.

Motion for Counsel
Plaintiff has applied to the Court for appointment of counsel pursuant to 28

U.S.C. § 1915(e) (Doc. No. 88). Although there is no constitutional right to appointed
counsel in civil cases, under 28 U.S.C. § 1915(e), the Court may appoint counsel to
assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real
Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). Assignment of counsel in this matter is

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clearly within the judge’s discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984).
The factors to be considered in deciding whether or not to assign counsel include:
1. Whether the indigent’s claims seem likely to be of substance;
2. Whether the indigent is able to investigate the crucial facts concerning his
claim;
3. Whether the conflicting evidence implicating the need for cross-examination
will be the major proof presented to the fact finder;
4. Whether the legal issues involved are complex; and
5. Whether there are any special reasons why appointment of counsel would be
more likely to lead to a just determination.
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police
Officers, 802 F.2d 58 (2d Cir. 1986).
The Court must consider the issue of appointment carefully, of course, because
“every assignment of a volunteer lawyer to an undeserving client deprives society of a
volunteer lawyer available for a deserving cause.” Cooper v. A. Sargenti Co., 877 F.2d
170, 172 (2d Cir. 1989). Therefore, the Court must first look to the “likelihood of merit”
of the underlying dispute. Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174, and
“even though a claim may not be characterized as frivolous, counsel should not be
appointed in a case where the merits of the . . . claim are thin and his chances of
prevailing are therefore poor.” Carmona v. United States Bureau of Prisons, 243 F.3d
629, 632 (2d Cir. 2001) (denying counsel on appeal where petitioner’s appeal was not
frivolous but nevertheless appeared to have little merit).
The Court has reviewed the facts presented herein in light of the factors required
by law. Based on this review, Plaintiff’s motion for appointment of counsel is DENIED

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without prejudice at this time. It is Plaintiff’s responsibility to retain an attorney or press
forward with this lawsuit pro se. 28 U.S.C. § 1654.
3.

Motion to Compel
Attached to Plaintiff’s Motion for Counsel is a Motion to Compel seeking to

compel Defendants’ answer to interrogatories and production of documents Plaintiff
asserts were submitted on April 11, 2014, but to which Plaintiff maintains Defendants
have yet to respond. Motion to Compel at 1. Defendants have not responded in
opposition to this motion which, nevertheless, is DISMISSED as moot for several
reasons.
First, answers to Plaintiff’s interrogatories were filed by Defendant on February
28, 2014 (Doc. No. 51 – Youmans; Doc. No. 52 – Wenderlich), March 7, 2014 (Doc. No.
55 – Morris; Doc. No. 56 – Diego; Doc. No. 57 – Bunnell; and Doc. No. 58 – Taylor),
and March 10, 2014 (Doc. No. 59 – Chappius; Doc. No. 60 – Staight). The
“interrogatories” to which Plaintiff refers in his Motion to Compel as being numbered 1
through 40 and “submitted . . . pursuant to Rule 36 of the Federal Rules of Civil
Procedure on April 11, 2014,” Motion to Compel at 1, are actually “Requests for
Admissions” which the action’s docket indicates were filed on April 28, 2014 (Doc. No.
62), and for which Defendants provided answers on May 22, 2014 (Doc. No. 67).
Accordingly, such interrogatories have been answered and the Motion to Compel is
DISMISSED as moot as to them.
Second, insofar as Plaintiff maintains Defendant have failed to produce for
inspection and copying several documents, including pictures from G-Block Gallery
Shower and Plaintiff’s G-Block cell at Elmira, all pictures of Plaintiff’s cell in G-Block at

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Elmira; all pictures of “the medical procedure at Elmira,” and transcripts of “the last
phone conference,” Motion to Compel at 1-2, Plaintiff has failed to serve formal
discovery demands requesting such materials. Orraca v. Washborn, 2011 WL
4352716, at * 1 (W.D.N.Y. Sept. 15, 2011) (“In the absence of proof of demands
actually being served upon defendants, a motion to compel [defendants’] response is
premature). Because the record fails to demonstrate that Plaintiff served formal
discovery requests for these documents,2 the Motion to Compel Defendants’ response
to such requests is DENIED.

CONCLUSION
Plaintiff’s motion for injunctive relief (Doc. No. 20) is DISMISSED as moot;
Plaintiff’s motion for appointment of counsel (Doc. No. 88), is DENIED; and Plaintiff’s
motion to compel (Doc. No. 88) is DISMISSED as moot in part and DENIED in part.
SO ORDERED.
/s/ Leslie G. Foschio
______________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED:

September 10, 2015
Buffalo, New York

Plaintiff is advised that any appeal of this Decision and
Order must be taken by filing written objection with the
Clerk of the Court not later than 14 days after service of
this Decision and Order in accordance with Fed.R.Civ.P.
72(a).

2

Despite Plaintiff’s assertion that on April 11, 2014, he submitted a written request for these documents,
“excluding the phone transcripts,” Motion to Compel at 2, the docket does not show any such written
request was ever made.

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