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)

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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

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