The opinion of the court was delivered by: KENNETH R. FISHER
REPORT and RECOMMENDATION DECISION and ORDER
Plaintiff, proceeding pro se, commenced this action Pursuant to 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights when he was transferred from Monterey Shock Incarceration Facility ("Monterey") to Elmira Correctional Facility ("Elmira") on April 4, 1991. He seeks injunctive, declaratory and compensatory relief.
Currently, there are nine motions pending before this court. Plaintiff filed three motions to compel defendants to respond to his interrogatories, on October 29, 1992, December 24, 1992 and March 2, 1993, respectively (docket entries ##19, 36 and 41, respectively). In opposition to plaintiff's second motion to compel (docket entry #36), defendants filed a motion for a protective order, pursuant to Fed. R. Civ. P. 26(c). Plaintiff's third motion to compel also contains a request for appointment of counsel. Defense counsel also filed a letter, dated March 1, 1993 (docket entry #42), in opposition to plaintiff's third motion to compel, while taking no position on plaintiff's request for appointment of counsel. These matters were referred to me by Chief Judge Michael A. Telesca, by order dated November 3, 1992, pursuant to 28 U.S.C. § 636(b)(1)(A).
Also pending before this court are defendants' motion for summary judgment, filed October 29, 1992 (docket entry #20). Plaintiff filed a cross-motion for partial summary judgment in opposition to defendants' motion for summary judgment (docket entry #31), and a motion requesting leave to file a supplemental complaint (docket entry #29). Plaintiff also has a motion for injunctive relief pending, which was filed on July 31, 1992 (docket entry #11). Chief Judge Telesca referred these remaining matters to me by order dated March 18, 1993, pursuant to 28 U.S.C. § 636(b)(1)(B).
The following constitutes my decision and order that plaintiff's motion for appointment of counsel be denied. Plaintiff's three motions to compel and defendants' motion for a protective order are denied, and dismissed as moot. It is also my report and recommendation that defendants' motion for summary judgment be granted and that plaintiff's motions for injunctive relief, to supplement his complaint, and for summary judgment be denied.
A. Motion for Assignment of Counsel1
Under 28 U.S.C. § 1915(d), the Court may appoint counsel to assist indigent litigants. Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). It is clear that assignment of counsel in this matter is within the Court's discretion. See In re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1984). The factors to be considered in deciding whether or not to assign counsel are set forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986) and Cooper v. A. Sargenti Co., 877 F.2d 170 (2d Cir. 1989). However, the Court should exercise its discretion to appoint counsel in cases where the plaintiff has made "a threshold showing of some likelihood of merit." Id. 877 F.2d at 174.
B. Motion to Supplement Complaint2
Plaintiff seeks to supplement his complaint with new claims relating to events that occurred in April and May of 1992, at correctional facilities other than those named in his complaint. He does not name any new defendants. As previously stated, in his original complaint, plaintiff alleged that he was unlawfully transferred from Monterey to Elmira. In his proposed supplemental complaint, plaintiff sets forth a series of incidents which allegedly occurred in retaliation for his prosecution of this § 1983 action. First, he claims that he was unlawfully transferred from Walkill Correctional Facility ("Walkill") to Washington Correctional Facility ("Washington") in violation of a DOCS policy which ordinarily does not permit transfers of inmates enrolled in college prison programs. He also contends that his mail was interfered with and that some of his legal and personal property was damaged or missing after the transfer.
It is clear that plaintiff is not seeking to replace his original claim with his proposed amendments.
Rather, he seeks to "supplement" the original complaint with new claims against the original defendants. "A supplemental pleading is designed to cover matters that occur subsequent to the filing of the complaint, but pertain to the original pleadings." Albrecht v. Long Island Railroad, 134 F.R.D. 40, 41 (E.D.N.Y. 1991). The court may, pursuant to Fed. R. Civ. P. 15(d), permit a party, upon motion, "to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Id. And because the plaintiff proceeds pro se, the court is "to construe [such] complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than [it] would in reviewing a pleading submitted by counsel." Platsky v. CIA, 953 F.2d 26, 28 (2d Cir. 1991).
Pursuant to Rule 15(d), supplemental "relief may include the addition of new defendants and new claims, if adequately related to the originally stated claims." McLean v. Scully, 1991 WL 274327, at *1 (S.D.N.Y. December 9, 1991). If a "supplemental claim is filed . . . before the statute of limitations has run on the claim, it makes little or no difference if the request to supplement is analyzed under Rule 15(a) or Rule 15(d)." Soler v. G & U, Inc., 103 F.R.D. 69, 73 n.7 (S.D.N.Y. 1984). Thus, "the standard for the exercise of discretion on a motion to supplement the pleadings is the same as that for disposition of a motion to amend a complaint under Rule 15(a), . . ." Gittens v. Sullivan, 670 F. Supp. 119, (S.D.N.Y. 1987), aff'd 848 F.2d 389 (2d Cir. 1988); Novak v. National Broadcasting Co., 724 F. Supp. 141, 145 (S.D.N.Y. 1989) ("the same standards apply to motions under both these subdivisions of Rule 15"); 6A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 1504, at pp. 183-85 (2d ed. 1990) ("The distinction between amended and supplemental pleadings is sometimes ignored completely").
Although "Rule 15(a) declares that leave to amend 'shall be freely given when justice so requires,'" United States v. Continental Illinois National Bank & Trust Co., 889 F.2d 1248, 1254 (2d Cir. 1989) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962)), "granting leave to amend [or supplement] is not, however, automatic." Turner v. Niagara Frontier Transportation Authority, 748 F. Supp. 80, 85 (W.D.N.Y. 1990). Additionally, a motion to supplement or amend may not be granted if it prejudices the opposing party. Albrecht v. Long Island Railroad, 134 F.R.D. at 41.
As the following discussion indicates, however, the new claims relating to the events at Washington and Walkill do not "[arise] out of the conduct, transaction or occurrence set forth . . . in the original pleading. . ." Fed. R. Civ. P. 15(c)(2). To add new claims under this "relation back" provision of Fed. R. Civ. P. 15(c), the plaintiff must show that the following requirements have been met:
(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in making its defense; (3) the party must or should have known that, but for a mistake concerning its identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.
Schiavone v. Fortune, 477 U.S. 21, 29, 106 S. Ct. 2379, 2384, 91 L. Ed. 2d 18 (1986). See Afrika v. Selsky, 750 F. Supp. 595, 599 (S.D.N.Y. 1990) ("a new claim will relate back to the date of filing the original complaint if plaintiff's amended complaint meets all four prongs of the Schiavone test").,
Plaintiff fails to meet the first Schiavone requirement. His original complaint alleges violations in connection with his transfer from the shock incarceration facility at Monterey to the correctional facility at Elmira in April, 1991. His proposed supplemental complaint discusses events that occurred a year later at two entirely different correctional facilities -- Walkill and Washington. Plaintiff fails to establish any nexus between the events alleged in his original complaint and those alleged in his proposed supplemental complaint, or that they arose "out of the same conduct or occurrence as those in the original pleading." Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989). Not only does he fail to show how the officials at Monterey are responsible for his transfer from Washington to Walkill, he alleges two very different claims in each complaint. His original complaint alleges a transfer without due process, and his proposed supplemental complaint alleges an unlawful transfer in violation of a prison regulation against transferring inmates enrolled in prison college programs. No violations of his due process rights are alleged in connection with the latter transfer. Although the proposed supplemental complaint contains allegations of retaliation, he fails to connect these actions with the named defendants. Thus "there appears to be no linkage between" the allegations set forth in each complaint. McLean v. Scully, 1991 WL 274327, at *1 (S.D.N.Y. December 9, 1991). Because "plaintiff's motion to supplement the original complaint fails to satisfy Rule 15(d) in that the subsequent action is unrelated to the original complaint," Albrecht v. Long Island Railroad, 134 F.R.D. at 41, plaintiff's motion to supplement the complaint is denied.
C. Motion for Injunctive Relief4
Plaintiff filed a motion on July 16, 1992 (docket entry #11), seeking injunctive, relief for the allegations set forth in his proposed supplemental complaint. Since that time, however, plaintiff was transferred to Cayuga Correctional Facility, and thereafter to Oneida Correctional Facility, where he is currently incarcerated. Because plaintiff has been transferred to at least two different correctional facilities since the time he filed the motion, his request for injunctive relief arising out of the allegedly wrongful conduct at Walkill and Washington Correctional Facilities is now moot. Young v. Lane, 922 F.2d 370, 373-74 (7th Cir. 1991); Martin v. Davies, 917 F.2d 336, 339 (7th Cir. 1990), cert. denied, 115 L. Ed. 2d 978, 111 S. Ct. 2805 (1991); Young v. Coughlin, 866 F.2d 567, 568 n.1 (2d Cir. 1989), cert. denied, 492 U.S. 909 (1989); Beyah v. Coughlin, 789 F.2d 986, 988 (2d Cir. 1986); Washington v. James, 782 F.2d 1134, 1137 (2d Cir. 1986); Clarkson v. Coughlin, 783 F. Supp. 789 (S.D.N.Y. 1992). And because he fails to show a "demonstrated probability" that he is likely to be retransferred and subject to the same alleged conduct, he cannot escape the mootness of his motion for a preliminary injunction. Martin v. Davies, 917 F.2d at 339 (quoting DeMallory v. Cullen, 855 F.2d 442, 449-50 (7th Cir. 1988) (Easterbrook, J., dissenting) (quoting Weinstein v. Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348, 46 L. Ed. 2d 350 (1975)). It is of no consequence that "there is nothing in the record to show that he will not end up back" at Walkill or Washington Id. 917 F.2d at 339 (emphasis in original) (an allegation of this sort "will not do" to keep his motion alive). Plaintiff, of course, has not even addressed this possibility in his motion papers. His motion for injunctive relief is therefore moot and dismissed as such.
D. Motions for Summary Judgment
At the time defendants moved for summary judgment and dismissal of the plaintiff's complaint, the plaintiff had filed his first motion to compel. In opposing the summary judgment motion, plaintiff cross-moved for partial summary judgment and asked that his discovery request be granted. He subsequently moved two more times for the same discovery -- defendants' responses to his interrogatories (docket entry #18).
Plaintiff's motions to compel will be treated as requests to hold the motions for summary judgment in abeyance until discovery is completed.
Summary judgment may be granted if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed. R. Civ. P. 56(c). Therefore, this court must first determine whether, in fact, there are "genuine issue[s] as to any material fact" which will preclude a decision on the merits of the summary judgment motions. Id. In doing so, the court is aware that in pro se cases, "special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment." Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). When the pro se plaintiff is unaware of the requirement of Rule 56(e) that he or she must file affidavits which show a genuine issue of fact, "it is inequitable, without a more explicit warning," to enter summary judgment against that plaintiff. Id. In this case, plaintiff's knowledge of the requirements of Rule 56(e) is conclusively established by his timely response to defendants' summary judgment motion. Plaintiff was thus fully aware of his obligations under Rule 56.
A review of plaintiff's interrogatories reveals that they relate only to the issue of his allegedly unlawful transfer from Monterey to Elmira. This is the sole cause of action alleged in his complaint. I find this to be so, despite plaintiff's contention that his cross-motion is for partial summary judgment. Although it is conceivable that plaintiff originally moved for partial summary judgment on the assumption that his motion to supplement the complaint would be granted, this motion has been denied. See Part III-B, supra. Thus, only the due process claim in connection with his transfer out of the Monterey Shock Incarceration Facility remains for this court's consideration.
To oppose a motion for summary judgment on the ground that discovery is outstanding, "Fed. R. Civ. P. 56(f) provides nonmoving parties with a mechanism to stay the motion pending the necessary discovery." Bank of America National Trust and Savings Assoc. v. Envases Venezolanos, S.A., 740 F. Supp. 260, 269 (S.D.N.Y. 1990), aff'd 923 F.2d 843 (2d Cir. 1990); Dubied Machinery Co. v. Vermont Knitting Co., Inc., 1992 WL 142044, at *5 (S.D.N.Y. June 11, 1992) ("If inadequate discovery prevents presentation of facts necessary to oppose a summary judgment motion, Rule 56(f) allows a court to deny summary judgment or order a continuance until discovery is complete"). The Second Circuit holds that
the opponent of a motion for summary judgment who claims to be unable to produce evidence in opposition to the motion [is] to file an ...