Houston v. Coveny et al

Filing 67

ORDER granting 57 Motion ; denying 60 Motion to Appoint Counsel ; denying 62 Motion for Sanctions. Signed by Hon. Jonathan W. Feldman on 03/13/2017. A copy of this Decision and Order has been mailed to pro se plaintiff, Tyrone Houston, 11A5009, FIVE POINTS CORRECTIONAL FACILITY, Box 119, Romulus, NY 14541. (JKT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TYRONE HOUSTON,
Plaintiff,

DECISION AND ORDER

14-cv-6609
v.

COVENY, et al. ,
Defendants.

Currently pending before the Court are three motions filed
by

plaintiff

information;
counsel.

See

(1)

to

compel

defendants

to

preserve

certain

(2) to appoint counsel; and (3) to sanction defense
Docket

##

57,

60,

62.

This

Decision and Order

addresses all three motions.

asks

that

9/29/15,

(Docket # 57) :

Motion to Preserve Evidence

1.

the Court Order defendants "to· preserve the
9/30/15,

10/1/15,

10/6/15,

12/31/15 videos and audios recordings"
grievance
related

hearings.
to

complaint. 1
of

Plaintiff

claims

These
included

video
in

11/6/15,

9/8/15,

12/22/15,

ahd

of plaintiff's tier and

and

audio

plaintiff's

recordings
proposed

are

amended

Plaintiff has attached letters from the Department

Corrections

and Community Supervision

(DOCCS)

stating

that

Plaintiff has sought to amend his complaint in order to, inter
alia,
add twenty-four new defendants.
Defense counsel has
opposed the proposed amendments.
See Docket # 56.
The validity
of the proposed amended complaint is currently being considered
by Chief Judge Geraci.
1

the

recordings

(which plaintiff

requested via

Information Law) will be retained for one year.
Plaintiff's request is granted.
Civil

Procedure,

defendants

Freedom of

See Ex. A.

Under .the Federal Rules of
bound

to

preserve

material

related

to

reason,

"a specific order from the court directing one or both

parties

litigation.

are

the

to

preserve

See

Fed.

evidence

R.

is

Civ.

not

P.

37.

For

ordinarily

that

required."

Micolo v. Fuller, 15-CV-6374EAW, 2016 WL 158591, at *l (W.D.N.Y.
Jan. 13, 2016)
a

(citation omitted).

preservation

evidence

is

Order

in

intervention.

some

case.

recordings

a

danger

party
of

can

being

demonstrate
destroyed

that

absent

the
court

Given plaintiff's exhibits detailing DOCCS'

Id.

retention policy,
the

if

However, the Court may grant

the Court finds it appropriate to ensure that

are

preserved

Although it

is

throughout

not yet

the

pendency of

this

clear· that plaintiff's amended

complaint will become the operative pleading,

the recordings at

issue are the subject of pending litigation, and thus should be
preserved.
776,

779

See West v.
(2d Cir.

1999)

Goodyear Tire & Rubber Co.,
(defining

pending or reasonably foreseeable
defendants

shall

retention/destruction

suspend
policy"

spoliation of

and

routine
are

hereby

F. 3d

"evidence

litigation.")

"its

167,

in

Accordingly,
document
on

notice

and
to

preserve all evidence reasonably related to plaintiff's existing
2

and proposed claims.
1315317, at *5

Luellen v. Hodge,

(W.D.N.Y. Mar. 28,

2014)

Warburg LLC, 220 F.R.D. 212, 218
2.
states
case
claim

Motion
that

he

involves
involves

to

Appoint

requires
"several

testimony and further
perform.

2014 WL

(quoting Zubulake v. UBS

#

(Docket

assistance

different

different

ll-CV-6114P,

(S.D.N.Y. 2003)).

Counsel

the

No.

of

legal

defendants,"

60):

Plaintiff

counsel

claims

because his

and

that will

that

require

each

expert

investigation which he will be unable to

See Docket # 60 at 7-8.

At this juncture, plaintiff's

motion for counsel is denied without prejudice.
"Volunteer
"should not
Co.,

be

lawyer

time

is

a

precious

allocated arbitrarily."

877 F.2dl70,

172

of this fact as he is a
Decision and Order

(2dCir.

1989).

commodity"

Cooper v.

A.

Sargenti

Plaintiff is well aware

repeat litigant before the Court.

(Docket # 19)

that

See

(revoking plaintiff's in forrna

pauperis status based on the three strike rule of 28 U.S.C.
1915 (g)) .

Having

reviewed

the

Complaint

and

nature of the factual and legal issues involved,
appointment

of

counsel

is

not

warranted

at

considered

§

the

I conclude that

this

time.

Mr.

Houston is an experienced pro se litigator who has demonstrated
proficiency in litigating his cases in federal court.
has

drafted

pleadings,

legible,

organized,

cogent

discovery demands and motions,
3

and

Plaintiff
appropriate

and has shown that he

See Perkins v.

is capable of prosecuting his case.
08-CV-6248,
(denying

2011

WL

4530672,

at

motion

to

appoint

pro

se

litigator

experienced

*4

counsel
who

02

Civ.

14,

2003)

648l(LTSDF),

where
has

capable of prosecuting his federal
No.

(W.D.N.Y.

Sept.

28,

shown

2003 WL 21108370,

is

an

is

perfectly

Harris v.

McGinnis,

at

he

No.

2011)

"[p] laintiff

cases") ;

(denying application where

Napoli,

*2

plaintiff

(S.D.N.Y.

seemed

May

"capable

of understanding and presenting the

legal issues raised by his

claims,"

addressed

as

his

papers

were

clear,

and cited pertinent case law); Avent v.
93-94
to

(S.D.N.Y.

present

2002)

facts

and

relevant

Solfaro,

issues,

210 F.R.D.

91,

(where plaintiff demonstrated his ability
draft

pleadings

and

motions

"backed

by

legal research," court declined to appoint counsel).
Given the
bona

counsel,

counsel

at

I

find

this

2003

no

See

reason"

WL

v.

McGinnis,

21108370,

at

*2

of

plaintiff

counsel

would

why

likely to

Harris

(application denied where
why appointment

"special

stage would be more

determination.
(LTSDF),

to pro

limited resources available with respect

No.

(S.D.N.Y.
"offered no

increase

the

appointment
lead to
02
May

a

Civ.

just
6481

14,

special

of

2003)
reason

likelihood of

a

just determination").
3.
Plaintiff

Motion
asks

to
the

Sanction Defense
Court

to

Attorney

sanction
4

(Docket

defendants'

#

62):

counsel,

Assistant
Levine

Attorney General

has

motions,

filed

as a [n]

the Court . "
the

Court

Gary M.

"procedurally deficient

Esq.,

Rule

because Mr.

12 and Rule

56

unnecessary delaying tactic and disrespect for
This motion is denied.

Docket # 62 at 8.
can

Levine,

discern

no

misconduct

committed

by

First,
defense

counsel, and second, defense counsel has not filed a dispositive
motion in this case.

Moreover,

a review of plaintiff's motion

papers suggests that plaintiff is alleging counsel's misconduct
in his other pending case in this district,
et al.,

6:13-cv-6594-FPG.

sanctions

in

this

Houston v.

Sheahan

It is improper for plaintiff to seek

case

for

something

that

has

occurred

in

another case.

Conclusion

For

the

reasons

stated

motion

for

appointment

plaintiff's

motion

(Docket # 57)

preservation of evidence

above,

is granted.

Plaintiff's

of

counsel

(Docket

#

60)

is

denied.

Plaintiff's motion for sanctions (Docket# 62) is denied.
SO ORDERED.

D STATES MAGISTRATE JUDGE
Dated: March 13, 2017
Rochester, New York
5

for