Read v. Kwiatkowski

Filing 49

DECISION AND ORDER denying 31 Motion for Order to Show Cause; denying 42 Motion to Appoint Counsel ; denying 47 Motion ; denying 48 Motion to Expedite; denying 48 Motion for TRO. Signed by Hon. Charles J. Siragusa on 6/29/17. Copy of this decision and order and NEF mailed to pro se plaintiff at Fishkill. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID PAUL READ,
Plaintiff,

DECISION and
ORDER

-vs15-CV-6475-CJS-JWF
P. KWIATKOWSKI,
Defendant.

INTRODUCTION
Siragusa, J. Before the Court are Plaintiff=s motions seeking a temporary
restraining order, ECF No. 31 and ECF No. 48, appointment of pro bono counsel, ECF
No. 42, and an order limiting evidence at trial, ECF No. 47. Defendant has not filed any
opposition to Plaintiff’s applications.
DISCUSSION
Appointment of Counsel
In his application, Plaintiff seeks “assignment of counsel….” At the outset, when
considering the appointment of pro bono counsel, the Court must determine whether
Plaintiff has made, Aa threshold showing of some likelihood of merit.@ Cooper v. A.
Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989); Hodge v. Police Officers, 802 F.2d 58, 59
(2d Cir. 1986). Plaintiff alleges in his complaint that on July 6, 2015, at approximately 7:30
p.m., Defendant directed him to complete a work detail, contrary to Plaintiff’s medical
restriction. Further, that while on the work detail, Plaintiff’s knee collapsed causing him to
break a door. Finally, Plaintiff asserts that Defendant retaliated against him by filing an

inmate misbehavior report alleging that Plaintiff refused to work, complained loudly when
forced to do so, said he would only complete the work detail (washing walls in a corridor)
by taking his “sweet time,” was yelling and causing a disturbance, berated the correctional
officer in front of other inmates, slammed a door so hard it broke the top closure arm and
four screws fell out, and then lied about the door already being broken.
Once the threshold showing has been made, the Court must consider other
factors:
[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..., the indigent=s ability to present the case, the complexity of the
legal issues and any special reason in that case why appointment of
counsel would be more likely to lead to a just determination.
Hodge, 802 F.2d at 61-62; see Ferrelli v. River Manor Health Care Center, 323 F.3d 196,
203 (2d Cir. 2003) (applying the Hodge factors); Hendricks v. Coughlin, 114 F.3d 390,
392 (2d Cir. 1997) (same). AVolunteer lawyer time is a precious commodity,@ Cooper, 877
F.2d at 172.
In this case, the matter is not complex, and the legal issues involved are straight
forward and easily understood without legal training. Therefore, the Court determines
that, after reviewing the Hodge factors, Plaintiff is not entitled to pro bono services from
counsel and must either retain counsel at his own expense, or press on pro se in this
case. His motion to appoint counsel, ECF No. 42, is denied.

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Temporary Restraining Order / Preliminary Injunction
Plaintiff filed two applications for a TRO or preliminary injunction. In ECF No. 31,
he seeks an Order
enjoining the defendants…from, thwarting Plaintiff from possession of
manila envelopes to file his brief, allow access to all legal material as
needed to perfect his civil action without interference by N.Y.S. / DOCCS,
correctional officers within (SHU) at Mid-State or anywhere Plaintiff may be
housed, and not to be retaliated against for litigating. Also not to tamper or
destroy any legal mail, document, that are in Plaintiff’s personal property
that my jeoperdise [sic] his litigation thereof.
ECF No. 31 at 1. Plaintiff contends that corrections staff have not permitted him to obtain
manila envelopes with which to file briefs with the Court, “leaving all work product
exceeding over 5,000 pages loosely exposed to public eye’s [sic].” Id. at 3.
AA party seeking injunctive relief ordinarily must show: (a) that it will suffer
irreparable harm in the absence of an injunction and (b) either (i) likelihood of success on
the merits or (ii) sufficiently serious questions going to the merits to make them a fair
ground for litigation and a balance of hardships tipping decidedly in the movant's favor.@
Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33 (2d Cir.1995).
Plaintiff=s application has not met the purposely high legal threshold for injunctive relief.
In Tom Doherty, the Second Circuit also discussed the requirements for a
mandatory injunction:
However, we have required the movant to meet a higher standard where:
(i) an injunction will alter, rather than maintain, the status quo, or (ii) an
injunction will provide the movant with substantially all the relief sought and
that relief cannot be undone even if the defendant prevails at a trial on the
merits.…

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1. Mandatory Injunctions
The typical preliminary injunction is prohibitory and generally seeks only to
maintain the status quo pending a trial on the merits. See Abdul Wali v.
Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). A mandatory injunction, in
contrast, is said to alter the status quo by commanding some positive act.
See id. As noted above, this distinction is important because we have held
that a mandatory 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.” Id. (internal
quotations and citations omitted); see also SEC v. Unifund SAL, 910 F.2d
1028, 1039 (2d Cir. 1990) (injunction going beyond preservation of status
quo requires “a more substantial showing of likelihood of success”);
Jacobson & Co. v. Armstrong Cork Co., 548 F.2d 438, 441 (2d Cir. 1977).
The “clear” or “substantial” showing requirement—the variation in language
does not reflect a variation in meaning—thus alters the traditional formula
by requiring that the movant demonstrate a greater likelihood of success.
See Unifund SAL, 910 F.2d at 1039.…
Moreover, many mandatory injunctions can be stated in seemingly
prohibitory terms. See, e.g., Unifund SAL, 910 F.2d at 1040 (imposing
“substantial showing of likelihood of success” standard because “though the
order is prohibitory in form, rather than mandatory, it accomplishes
significantly more than preservation of the status quo”).
Doherty Assoc., Inc. v. Saban Entertainment, Inc., 60 F.3d at 34–35.
Plaintiff is asking the Court for a mandatory injunction that, essentially, directs
Defendant and those acting in concert with him to provide certain stationery items and to
follow the law. First, the Court is not going to direct Defendant or anyone acting in concert
with him to provide certain stationery items, such as manila envelopes. To date, Plaintiff’s
papers have arrived at Court and been successfully publically filed. Second, the Court is
not going to direct Defendant and those acting in concert with him to follow the law. There
is no need for such a direction from the Court.
In his second application for a temporary restraining order, ECF No. 48, Plaintiff
asserted that correctional staff, whom he did not identify, told him: (1) he would be placed
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in the special housing unit (“SHU”) because “his documents pertained to one of their’s
officer’s [sic]”; (2) “they will throw out all [his] legal papers”; (3) “they should throw [him]
down a flight of stairs”; and (4) “they will set [him] up with a weapon under [his] mattress.”
Id. at 1. As with the first application, Plaintiff seeks an order essentially directing
correctional staff to follow the law. As this Court observed in Mitchell v. N.Y. State Dep't
of Corr. Servs., No. 06-CV-6278 CJS, 2012 WL 5197676 (W.D.N.Y. Oct. 19, 2012):
Obviously, it is illegal for prison staff for retaliate against inmates for
exercising First Amendment rights. An inmate who has experienced specific
retaliation should utilize his administrative and judicial remedies.
However, Plaintiff has not shown that he is entitled to the broad injunctive
relief that he seeks against the entire staff of Attica. In a similar case, the
Court stated:
[P]laintiff has asked for an injunction directing officials at Southport
to reassign Ayers, McKeon, and Cece, to keep them away from
him. On the other hand, plaintiff contends that such a reassignment
alone would have no effect, because the conspiracy to retaliate
against him and other inmates who file lawsuits at Southport is allencompassing. Accordingly ... he actually wants the Court to direct
all officials and staff at Southport to obey the law and stop harassing
him. Plaintiff's application must be denied for several reasons. First,
such a broad injunction would be inappropriate. S.C. Johnson &
Son, Inc. v. Clorox Co., 241 F.3d 232, 240 (2d Cir.2001) (“[U]nder
Rule 65(d), an injunction must be more specific than a simple
command that the defendant obey the law.”).... Additionally, even
assuming that plaintiff had shown irreparable harm ... he has not
shown that he is likely to succeed on his underlying claims or that
the questions he raises are sufficiently serious with the balance of
hardships tipping in his favor.
Applewhite v. McGinnis, No. 04–CV–6602–CJS–MWP, 2007 WL 1026427
at *2 (W.D.N.Y. Apr.2, 2007). For the same reasons, Plaintiff's request in
this action is denied.
Mitchell, 2012 WL 5197676, at *2–3. The situation here is similar, and the Court declines
to issue injunctive relief on these broad allegations of potential future illegal behavior.
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Motion in Limine
Finally, Plaintiff has moved to limit the defense at trial from presenting evidence of
the following: (1) the circumstances of Plaintiff’s prior arrests in 2008 and 2009; (2) all of
Plaintiff’s prior criminal history; and (3) his prison disciplinary record. He cites to Lataille
v. Ponte, 754 F.2d 33 (1st Cir. 1985) in support of his application. In the Lataille decision,
the First Circuit held it was error for the district court to admit the plaintiff’s disciplinary
record in his civil rights case. Id. at 34 (“The case before us raises a single issue: whether
the past disciplinary record of a prisoner was admissible in his 42 U.S.C. § 1983 suit
against corrections officers. We rule that it was not.”). The district court admitted evidence
of the plaintiff’s “more than sixty disciplinary reports, seven of which involved assaults on
guards.” Id. at 35. The case involved the plaintiff’s allegations that the correctional officers
had used excessive force on him, and the First Circuit ruled that it was contrary to Rule
of Evidence 404 to admit the prior history to show that the plaintiff was the aggressor in
the altercation with the guards. “It is well settled that prior acts may not be admitted to
prove that a person acted in a similar fashion in the case at hand. That is the plain
meaning of Federal Rule of Evidence 404: ‘Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show that he acted in
conformity therewith.’ 404(b).” Id.
Here, Plaintiff has not developed his argument for excluding evidence of his past
disciplinary record, thus the Court has no basis on which to determine whether admitting
any of Plaintiff’s past disciplinary record would be permissible. Therefore, his application
for an order excluding evidence is denied without prejudice to renewing it prior to, or at,
trial.
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CONCLUSION
For the foregoing reasons, Plaintiff’s applications, ECF No. 31, ECF No. 42, ECF
No. 47 and ECF No. 48, are denied. Plaintiff must find counsel on his own, or press
forward with the case pro se, his applications for temporary restraining orders or
preliminary injunctive relief are denied as they do not meet the high standard for a
mandatory injunction, and his motion in limine is denied without prejudice.
IT IS SO ORDERED.
Dated: June 29, 2017
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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