Opinion
9:22-cv-0711 (BKS/TWD)
01-26-2024
LEONIDAS SIERRA, Plaintiff, v. JOHN DOE 22, et al., Defendants.
LEONIDAS SIERRA Plaintiff, pro se NEW YORK STATE ATTORNEY GENERAL AIMEE COWAN, ESQ. Attorneys for Defendants New York State Attorney General - Syracuse Regional Office
APPEARANCES: OF COUNSEL:
LEONIDAS SIERRA
Plaintiff, pro se
NEW YORK STATE ATTORNEY GENERAL
AIMEE COWAN, ESQ.
Attorneys for Defendants
New York State Attorney General - Syracuse Regional Office
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. Brenda K. Sannes, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Leonidas Sierra (“Plaintiff”) commenced this action pursuant to 42 U.S.C. § 1983 based on events which occurred while he was incarcerated in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). Dkt. No. 1, Complaint; Dkt. No. 13, Amended Complaint. As relevant here, Plaintiff's remaining claims include Eighth Amendment excessive special housing unit (“S.H.U.”) confinement claims against Defendants Joseph Bellnier (formerly John Doe #4), DOCCS Commissioner Anthony Annucci, and DOCCS Assistant Commissioner Sandra Amoia. Dkt. No. 14, Decision and Order, at 15-16. Currently before the Court is Defendants Annucci, Bellnier, and Amoia's motion to dismiss. Dkt. No. 54. Plaintiff also requests the appointment of counsel. See generally, Dkt. No. 64, Plaintiff's Response in Opposition to Defendants' Motion; Dkt. No. 65, Letter. For the reasons set forth below, the Court recommends Defendants' motion be granted in part and denied in part and Plaintiff's renewed request for appointment of counsel is denied.
Although Assistant Commissioner Amoia's last name is spelled “Amaya” in previous filings, the Court uses the spelling provided in the Defendants' motion. Dkt. No. 54 at 1. The Clerk is directed to correct the spelling to Amoia on the docket.
Citations to docket entries will refer to the pagination generated by CM/ECF, the Court's electronic filing system unless otherwise noted.
II. BACKGROUND
On July 31, 2014, Plaintiff was remanded back to DOCCS custody following conviction on federal charges in the Southern District of New York. Dkt. No. 13 at 18. He was briefly housed at Downstate Correctional Facility. Id. at 18-19.
On August 4, 2014, he was transferred from Downstate Correctional Facility to Attica Correctional Facility, where he was placed under keep-lock status. Id. at 19. The following day, Plaintiff was served a Tier III misbehavior report charging him with a violation of Rule 1.00, based on Plaintiff's entry of a plea of guilty and criminal conviction for conspiracy to participate in a racketeering enterprise. Id.; see also 7 N.Y.C.R.R. § 270.2; 18 U.S.C. § 1962(d). Following a hearing, Plaintiff was found guilty and sentenced to one year of solitary confinement in the S.H.U. and a one year loss of package, commissary, and telephone privileges. Id.
In November of 2014, Plaintiff was transferred from Attica Correctional Facility to Upstate Correctional Facility, where he continued his S.H.U. sentence. Id. at 20. On or about May 26, 2015, Plaintiff was instructed to pack his personal belongings as he would be released from the S.H.U. the following morning. Id. at 22. The following day, a corrections officer informed him his transfer had been canceled and served him with an administrative segregation recommendation dated May 27, 2018. Id. at 22-23. Plaintiff was not allowed to call witnesses during the related hearing which concluded on August 11, 2015, and the Commissioner's Hearing Officer ultimately imposed administrative segregation. Id. at 23.
On or about December 9, 2015, Plaintiff was transferred from Upstate Correctional Facility to Auburn Correctional Facility. Id. at 27-28. He was placed in the S.H.U. upon his arrival. Id. at 28, 30. Auburn Correctional Facility officials restricted or denied privileges Plaintiff had previously received at Upstate, Plaintiff filed multiple grievances, and staff members “would drop hints to Plaintiff that he should stop complaining and bringing attention to the horrible living conditions in S.H.U.” Id. at 28-31. “Soon thereafter Sgt. Donnelly and the line staff started writing false misbehavior reports accusing Plaintiff of fabricated misbehaviors.” Id. at 31-32.
Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
At a hearing for one of the aforementioned reports, Deputy Superintendent of Programs Mr. Janea: (1) told Plaintiff “everyone of the administration wanted [him] out of that facility[,]” id. at 34; (2) “was advising him to plead guilty; even though [Janea] knew [he] did not threaten anyone[,]” id. at 35; and (3) “he would give Plaintiff his word as a man that he would transfer him if he plead guilty[,]” id. at 35 (internal quotations omitted). Accordingly, Plaintiff “plead guilty to a charge he did not commit ....” Id. at 35. A counselor advised Plaintiff he had been put in for a transfer but, approximately two weeks later, the transfer was denied. Id. at 36. Plaintiff was subjected to additional false misbehavior reports, threats, and sexual harassment, and reported “he was feeling suicidal and depressed . . . hearing voices and . . . felt unsafe because he had a history of self cutting behaviors.” Id. at 37. He was prescribed antidepressants, but the medication did not help, then “Plaintiff had a mental health crises and was placed on suicide watch.” Id. at 38.
After one day, the mental health unit chief informed Plaintiff the unit was ordered to return him to his cell. Id. at 38-39. Soon thereafter, the facility Deputy Superintendent of Security wrote another fabricated misbehavior report and, after Plaintiff was found guilty, he was transferred to Southport Correctional Facility. Id. at 40-43.
In sum, Plaintiff was housed in the S.H.U. at Upstate and Auburn Correctional Facilities from November, 2014, until May 28, 2016. See id. at 44 (further explaining Plaintiff was housed in the S.H.U. in DOCCS custody “from July 31, 2014 until May 27, 2015 . . . for a disciplinary sanction and, then, from May 27, 2015 until February 13, 2020, under Ad. Seg. status.”).
III. LEGAL STANDARD
A defendant may move to dismiss a complaint “for failure to state a claim upon which relief can be granted” under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion tests the legal sufficiency of the complaint and whether it conforms to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Determining whether a complaint states a plausible claim for relief . . . requires the reviewing court to draw on its judicial experience and common sense . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.Iqbal, 556 U.S. at 679 (internal quotations and citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not “enough facts to state a claim that is plausible on its face.” Twombly, 550 at 570. While Rule 8(a)(2) “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which “tenders ‘naked assertion[s]' devoid of ‘further factual enhancement'” does not suffice. Id. (citation omitted).
“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Where a party is proceeding pro se, the court is obliged to “read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly). In considering a Rule 12(b)(6) motion, “the court considers the complaint, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citation and internal quotation marks omitted).
The mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual allegations are consistent with the allegations of the plaintiff's complaint.Robles v. Bleau, No. 07-CV-0464, 2008 WL 4693153, at *6 and n.41 (N.D.N.Y. Oct. 22, 2008) (collecting cases); Donhauser v. Goord, 314 F.Supp.2d 119, 121 (N.D.N.Y. 2004) (where a pro se is faced with a motion to dismiss, a court may consider materials outside of the complaint “to the extent they are consistent with the allegations in the complaint.”), vacated in part on other grounds, 317 F.Supp.2d 160 (N.D.N.Y. 2004).
IV. DISCUSSION
A. Motion to Dismiss
Defendants contend Plaintiff's amended complaint should be dismissed as against Defendants Annucci, Amoia, and Bellnier pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Dkt. No. 54-1, Defendants' Memorandum of Law. Plaintiff opposed the motion. Dkt. No. 64, Plaintiff's Response. Defendants submitted a reply in further support of their motion. Dkt. No. 66, Defendants' Reply.
1. Defendant Annucci
Plaintiff avers Defendant Annucci: (1) “has final policy-making and supervisory authority within NYS-DOCCS, and is personally involved in authorizing and maintaining the unconstitutional policies, practices and customs challenged by Plaintiff[;]” (2) “is familiar with and has even defended many of the policies, practices and customs being challenged by Plaintiff” because he previously served as “Deputy Commissioner and Counsel for NYS-DOCCS[;]” and (3) as “Executive Deputy Commissioner, he was instrumental in creating what is known as the ‘Pilot Incentives Program' for Administrative Segregation Inmates.” Dkt. No. 13 at 3.
“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)) (additional citations omitted); Iqbal, 556 U.S. at 676. “A plaintiff must thus allege a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986); see also Iqbal, 556 U.S. at 676 (“vicarious liability is inapplicable to . . . § 1983 suits.”). “Where, as here, the defendants are supervisory officials, a mere ‘linkage' to the unlawful conduct through ‘the prison chain of command' (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct.” Rasheen v. Adner, 356 F.Supp.3d 222, 233 (N.D.N.Y. 2019) (citing Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981)) (additional citations omitted). “Instead, a plaintiff must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). Therefore, “in the context of an Eighth Amendment claim against a supervisory official, a plaintiff must establish that the supervisory official himself ‘acted with deliberate indifference-meaning that the official personally knew of and disregarded an excessive risk to the plaintiff's health or safety.'” Sorrentino v. Annucci, No. 9:23-CV-0582 (LEK/TWD), 2023 WL 4824852, at *2 (N.D.N.Y. July 27, 2023) (quoting Tangreti, 983 F.3d at 619) (alterations in original).
Here, Plaintiff has failed to plausibly allege Defendant Annucci personally knew of and disregarded a substantial risk of serious harm to Plaintiff. “[G]iven the abrogation of the Colon factors previously used to establish supervisory liability, the allegations regarding Annucci's policymaking authority and general awareness of unconstitutional practices are insufficient to adequately plead his subjective knowledge as to Plaintiff's situation specifically.” Williams v. Annucci, No. 9:20-CV-1417 (BKS/TWD), 2021 WL 4775970, at *5 (N.D.N.Y. Oct. 13, 2021); see also Tangreti, 983 F.3d at 612 (“Following Ashcroft v. Iqbal, . . . courts may not apply a special rule for supervisory liability.”); Keyes v. Venettozzi, No. 9:18-CV-0372 (GTS/DJS), 2022 WL 991402, at *7 (N.D.N.Y. Mar. 31, 2022) (explaining “the new standard in Tangreti has abrogated and completely replaced the factors set forth in Colon.”).
Moreover, to the extent Plaintiff contends Defendant Annucci's conduct in “creating . . . the ‘Pilot Incentives Program' for administrative segregation inmates[,]” see Dkt. No. 13 at 3,establishes Defendant Annucci's personal involvement in the alleged constitutional violation, Plaintiff has not plead any connection between the “Pilot Incentives Program” and his excessive S.H.U. confinement. Therefore, this allegation fails to connect Defendant Annucci to the alleged violation of Plaintiff's Eighth Amendment rights.
See also, e.g., Encarnacion v. Connors, No. 9:21-CV-0986 (MAD/TWD), 2023 WL 6546247, at *3 (N.D.N.Y. Aug. 7, 2023) (“‘the active conduct standard necessary to impose § 1983 liability on a supervisor requires the supervisor either directly participate in the alleged constitutional violation or create a policy or custom under which the alleged unconstitutional practices occurred.'”) (quoting Harrison v. Broderick, No. 1:18-CV-0821, 2022 WL 16837366, at *11 (W.D.N.Y. Aug. 18, 2022), report and recommendation adopted, 2022 WL 16836406 (W.D.N.Y. Nov. 8, 2022)) (additional quotations and citations omitted), report and recommendation adopted, 2023 WL 6057393 (N.D.N.Y. Sept. 18, 2023).
Plaintiff also pleaded that “[t]hroughout this whole time period, Plaintiff's sister . . . and his mother . . . were concerned for Plaintiff's safety and his mental health and constantly called the facility and wrote letters to the commissioner and Governor Cuomo, trying to get the mental Health treatment the plaintiff needed.” Id. at 39. However, Defendant Annucci's alleged receipt of letters from Plaintiff's family members is insufficient to demonstrate Defendant Annucci's personal involvement in the alleged violation of Plaintiff's rights. Mateo v. Fischer, 682 F.Supp.2d 423, 430 (S.D.N.Y. 2010) (“Courts in this circuit have said that the receipt of letters or grievances, by itself, does not amount to personal involvement.”) (collecting cases); see also, e.g., Bonie v. Annucci, No. 7:20-CV-0640, 2023 WL 2711349, at *6 (S.D.N.Y. Mar. 30, 2023) (“The receipt of letters or grievances, by itself, does not amount to personal involvement” and dismissing the plaintiff's claims against DOCCS Acting Commissioner Annucci despite the defendant's alleged receipt of multiple grievances) (citations omitted).
In his response to the Defendants' motion to dismiss, Plaintiff also asked the Court to “consider that the Plaintiff personally wrote Anthony J. Annucci ....” Dkt. No. 64 at 14. Plaintiff's contention he personally wrote letters to Defendant Annucci is similarly insufficient to demonstrate Defendant Annucci's personal involvement as required for § 1983 liability.
Finally, Plaintiff cites Satchell v. Dilworth in support of the proposition that “Courts have allowed prisoners to keep high-level supervisors as defendants . . . for the purposes of discovery to determine who the proper defendants are.” Dkt. No. 64 at 7-8 (citing 745 F.2d 781, 786 (2d Cir. 1984)). The remaining Doe Defendants in Plaintiff's surviving claims include John Doe #5 and John Doe #6, both members of central office administrative segregation review committees; John Doe #22, an Upstate Correctional Facility Guidance Offender Rehabilitation Coordinator who served as a member of the facility's administrative segregation review committee; John Doe #24, an Auburn Correctional Facility Guidance Counselor who served on the facility's administrative segregation review committee. See Dkt. No. 13 at 8-12; see also Dkt. No. 14 at 15-16. However, nothing in Plaintiff's papers indicate Defendants Annucci or Amoia were involved in the process of reviewing Plaintiff's administrate segregation status, either at the central office or facility level, therefore, it is unlikely Defendants Annucci or Amoia have knowledge relevant to the identification of the remaining Doe Defendants. On the contrary, the remaining ten named defendants other than Annucci and Amoia appear better suited to identify the four Doe Defendants.
Accordingly, the Court recommends granting Defendants' motion to dismiss Plaintiff's Eighth Amendment claim against Defendant Annucci for failure to state a claim.
2. Defendant Amoia
Plaintiff alleges Defendant Amoia “is responsible for helping the commissione[r] with developing and implementing the unconstitutional policy, practices and customs being challenged by Plaintiff.” Id. at 4.
For the same reasons discussed above in connection with Plaintiff's claim against Defendant Annucci, Defendant Amoia's policymaking authority and familiarity with allegedly unconstitutional practices and customs is insufficient to demonstrate her personal involvement in the alleged Eighth Amendment violation. See, supra, Section (IV)(A)(1); see also Williams, 2021 WL 4775970, at *5.
In his response, Plaintiff requested the Court consider he “spoke with Sandra Amoia, while she was on rounds and wrote her.” Dkt. No. 64 at 14. As an initial matter, Plaintiff did not plead these allegations in his amended complaint, nor are these allegations consistent with that operative pleading which merely alleges Defendant Amoia is responsible for helping Defendant Annucci with the allegedly unconstitutional policies and practices. See Dkt. No. 13 at 4. In any event, Plaintiff's assertion he “spoke with” Defendant Amoia, without more- specifically, any information concerning the timing or contents of these alleged exchanges -is wholly insufficient to plausibly connect Defendant Amoia to the alleged constitutional violations. Moreover, Plaintiff's contention he “wrote” to Defendant Amoia would not establish personal involvement even if Plaintiff had written to her during the ongoing constitutional violation about his allegedly excessive confinement because, as explained above, receipt of letters does not amount to personal involvement. See, supra, Section (IV)(A)(1).
Accordingly, the Court recommends granting Defendants' motion to dismiss Plaintiff's Eighth Amendment claim against Defendant Amoia for failure to state a claim.
3. Defendant Bellnier
Plaintiff alleges Defendant Bellnier: “disregarded and ignored Plaintiff's deteriorating mental and physical health. He has final policy-making and supervisory authority within NYS-DOCCS and is personally involved in maintaining and authorizing the unconstitutional policies, practices and customs being challenged by Plaintiff. He is also the last official to sign off on retaining Plaintiff in the unconstitutional conditions described in this complaint.” Dkt. No. 13 at 7-8.
For the same reasons previously stated with respect to Defendants Annucci and Amoia, Defendant Bellnier's policy-making and supervisory authority within DOCCS is insufficient to adequately plead his subjective knowledge as to Plaintiff's condition. See, supra, Sections (IV)(A)(1)-(2); see also Williams, 2021 WL 4775970, at *5. Similarly, Plaintiff's assertion Defendant Bellnier disregarded and ignored Plaintiff's mental and physical health, without more- i.e., the pleading of facts indicating Bellnier had observed or, by some other means, obtained subjective knowledge of the substantial risk of serious harm to Plaintiff -is insufficient to demonstrate Bellnier's personal involvement in the alleged violation of Plaintiff's constitutional rights.
Plaintiff's contention Defendant Bellnier signed off on retaining Plaintiff in administrative segregation/S.H.U. confinement in his capacity as DOCCS Deputy Commissioner, however, plausibly alleges Bellnier's personal involvement in the alleged violation concerning Plaintiff's conditions of confinement. See H'Shaka v. O'Gorman, 444 F.Supp.3d 355, 376 (N.D.N.Y. 2020) (concluding plaintiff had established defendant's “personal involvement in the alleged Eighth Amendment violation related to his conditions of confinement because . . . [the Deputy Commissioner was] directly involved in the decision to keep Plaintiff in Ad Seg, and the conditions of confinement challenged here [were] the general Ad Seg/SHU conditions.”). In his response, Plaintiff averred “every Ad. Seg. review period [he] submitted a statement explaining to the facility and central office three-member review committee . . . that the prolonged periods of solitary confinement where affecting and hurting his mental and physical health” which Defendant Bellnier “reviewed before he made his decissions to continue Plaintiff's Ad. Seg. placement in S.H.U.” Dkt. No. 64 at 14. Plaintiff continued that, “by regulations,” Defendant Bellnier was “the only person authorized to release a Central Office Ad. Seg. inmate” such as Plaintiff from that status citing 7 N.Y.C.R.R. § 301.4. Id. at 15-16.
“[I]n the Second Circuit, a pro se plaintiff's papers in response to a defendant's motion to dismiss for failure to state a claim may be considered as effectively amending the allegations of his complaint-to the extent those papers are consistent with the allegations in the complaint.” Solomon v. Hum. Servs. Coal. of Tompkins Cnty. Inc., No. 5:11-CV-0226 (GTS/ATB), 2012 WL 3996875, at *7 (N.D.N.Y. Sept. 11, 2012) (citing Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 n. 1 (2d Cir. 1998) (“we deem [the plaintiff]'s complaint to include the facts contained in his memorandum of law filed in response to [the defendant]'s motion to dismiss.”)) (additional citations omitted). While Plaintiff did not explicitly identify the N.Y.C.R.R. provisions or Bellnier's review of his letters to the committee in his amended complaint, his motion response statements are consistent with Plaintiff's pleading that Bellnier was “the last official to sign off on retaining Plaintiff in the [S.H.U.].” Dkt. No. 13. at 7-8.
Under the regulations in effect at the relevant time, § 301.4 provided “[a]n inmate in administrative segregation status shall have such status reviewed every sixty days[.]” 7 N.Y.C.R.R. § 301.4(d). During the review process, a three-member committee “examine[s] the inmate's institutional record and prepare[s] a report” containing:
As stated above, Plaintiff was held in the S.H.U. under Ad. Seg. status from May 27, 2015, until February 13, 2020. See Dkt. No. 13 at 44. Section 301.4 was amended effective December 16, 2020. The Court cites to the version of Section 301.4 that was in effect at the time Plaintiff was confined under Ad. Seg. status.
(i) reasons why the inmate was initially determined to be appropriate for administrative segregation;
(ii) information on the inmate's subsequent behavior and attitude; and
(iii) any other factors that they believe may favor retaining the inmate in or releasing the inmate from administrative segregation.7 N.Y.C.R.R. § 301.4(d)(1)(i)-(iii). “Where the deputy commissioner for correctional facilities has notified the superintendent that an inmate in administrative segregation is to receive central office review, the superintendent” is required to “refer the committee report, and any written statement received from the inmate, to a three-member central office committee[.]” Id. § 301.4(d)(3). Next, the central office committee conducts a review and forwards the paperwork and a recommendation to the deputy commissioner for correctional facilities. Id. “Upon receipt of the materials from the central office committee, including any written statement received from the inmate, the deputy commissioner shall make the determination to retain the inmate in or release the inmate from administrative segregation.” Id. (emphasis added).
In sum, from Plaintiff's allegation that Deputy Commissioner Bellnier “approved Plaintiff's continued placement in solitary confinement, it is reasonable to infer that [defendant] was subjectively aware of the risk that Plaintiff's constitutional rights were being violated by prolonged confinement in isolation, and that he disregarded that risk by approving his continued placement.” Williams, 2021 WL 4775970, at *6 (concluding the plaintiff plausibly alleged the defendant's personal involvement in the claimed violation of plaintiff's rights where the plaintiff asserted “[DOCCS Deputy Commissioner] O'Gorman was the ‘final arbiter' of his continued placement in solitary confinement . . . and . . . ‘approved [Plaintiff's] continued confinement in solitary confinement . . . for a period of time relevant to this action'” (citing 7 N.Y.C.R.R. § 301.4(d)(3)). Accordingly, the Court recommends Defendants' motion to dismiss Plaintiff's Eighth Amendment claim against Bellnier for failure to state a claim be denied.
B. Request for Assignment of Counsel
Plaintiff also asks the Court to consider assignment of counsel. See Dkt. No. 65 at 4-7. Plaintiff's previous request for counsel, see Dkt. No. 18, was denied by this Court on April 4, 2023. Dkt. No. 21, Decision and Order.
The Court's decision further advised: “Plaintiff may file another motion for appointment of counsel in the event he can demonstrate that, in light of specific changed circumstances, consideration of the above factors warrants granting the application. Plaintiff, however, is advised that any renewed motion for appointment of counsel must be accompanied by documentation that substantiates his efforts to obtain counsel from the public and private sector.” Dkt. No. 21 at 5.
Plaintiff avers appointment of counsel is appropriate at this juncture because: (1) “due to Plaintiff's incarceration . . . he does not have the ability to investigate the claims to procure the proper discovery[;]” (2) “there will be conflicting testimony since the Defendants never admit these wrongs[;]” (3) “Plaintiff is indigent[;]” (4) Plaintiff has “no legal training . . . [and] because of U.S.P. Hazleton's constant lockdowns has very limited access to legal materials[;]” (5) “the issues presented in this case are legally complex and will require mental health and medical experts[;]” and (6) “Plaintiff's case has merit. Which is why NYS-DOCCS, changed their S.H.U. and administrative segregation programs.” Dkt. No. 65 at 4-7.
Plaintiff recommended appointment of “Chad A. Davenport, Esq.” as counsel “because he is currently working on similar claims dealing with the unconstitutional practices, policies and customs of NYS-DOCCS Ad Seg program.” Dkt. No. 65 at 7.
The legal standard governing motions for appointment of counsel was discussed at length in the April 2023 Order and will not be restated herein. See Dkt. No. 21 at 3-5. In deciding whether to appoint counsel, the Court must first determine whether the indigent's position seems likely to be of substance then, if so, consider:
[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 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 v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). Even assuming, arguendo, Plaintiff's case has merit, the Court finds no reason why, at this time, appointment of counsel would lead to a more just determination of this case.
The Court first notes Plaintiff has not presented any specific changed circumstances supporting his renewed request for the appointment of counsel, nor has he provided documentation substantiating his efforts to obtain counsel beyond his identification of an attorney “currently working on similar claims ....” See Dkt. No. 65 at 7. Next, on June 15, 2023, this Court issued a Mandatory Pretrial Discovery and Scheduling Order, see Dkt. No. 57, requiring the Defendants to provide to Plaintiff documents and other materials related to his claims. “This will help to frame the issues in the case, and will help plaintiff investigate the ‘crucial facts' without the need for counsel.” Young v. Annucci, No. 9:16-CV-0566 (DNH/ATB), 2017 WL 11569210, at *2 (N.D.N.Y. Mar. 9, 2017).
Moreover, Plaintiff's incarceration and limited access to legal materials do not warrant a different ruling. Plaintiff has successfully filed a complaint and application for in forma pauperis relief, amended his complaint, and responded to Defendants' motion to dismiss; therefore, he has been able to successfully litigate this matter while incarcerated thus far. See, e.g., Stegemann v. Rensselaer Cnty. Sheriff's Off., No. 1:15-CV-21 (TJM/CFH), 2017 WL 11716632, at *4-5 (N.D.N.Y. Oct. 2, 2017) (denying plaintiff's motion for appointment of counsel where plaintiff alleged “his status as an inmate and his limited access to resources render[ed] him unable to . . . adequately investigate the case, or participate in discovery.”) (internal quotations omitted). Furthermore, although Plaintiff avers this case involves legally complex issues, the Court has not identified any reason to reach the same conclusion since its April 2023 order. Plaintiff's surviving claims are limited to allegations of excessive restrictive confinement against various defendants. See Dkt. No. 7, Decision and Order (dated August 4, 2022); Dkt. No. 14. While resolution of Plaintiff's claims may involve conflicting testimony and require the testimony of experts, as the Court noted in its aforementioned prior order, “if at least one of plaintiff's Eighth Amendment claims survives a dispositive motion filed by the defendants, it is highly probable that trial counsel will be appointed at the final pretrial conference.” Dkt. No. 21 at 5.
Accordingly, the Court denies Plaintiff's renewed motion for the appointment of counsel without prejudice to renew at a time that is closer to trial.
V. CONCLUSION
After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Defendants' motion to dismiss (Dkt. No. 54) be GRANTED IN PART AND DENIED IN PART; and it is further
RECOMMENDED that Plaintiff's Eighth Amendment claims against Defendants Annucci and Amoia be DISMISSED; and it is further
ORDERED that Plaintiff's letter request for appointment of counsel (Dkt. No. 65) is DENIED without prejudice to renew at some future time; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation and Order, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).
IT IS SO ORDERED.