United States District Court, W.D. New York
DECISION AND ORDER
Jonathan W. Feldman, UNITED STATES MAGISTRATE JUDGE
pending before the Court are three motions filed by plaintiff
(1) to compel defendants to preserve certain information; (2)
to appoint counsel; arid (3) to sanction defense counsel.
See Docket ## 57, 60, 62. This Decision and Order
addresses all three motions.
Motion to Preserve Evidence (Docket # 57):
Plaintiff asks that the Court Order defendants "to
preserve the 9/8/15, 9/29/15, 9/30/15, 10/1/15, 10/6/15,
11/6/15, 1.2/22/15, arid 12/31/15 videos and audios
recordings'' of plaintiff's tier and grievance
hearings. These video and audio recordings are related to
claims included in plaintiff's proposed amended
complaint. Plaintiff has attached letters from the
Department of Corrections and Community Supervision (DOCCS)
stating that the recordings (which plaintiff requested via
the Freedom of Information Law) will be retained for one
year. See Ex. A.
request is granted. Under .the Federal Rules of Civil
Procedure', defendants are bound to preserve material
related to litigation. See Fed.R.Civ.P. 37. For that
reason, "a specific order from the court directing one
or both parties to preserve evidence is not ordinarily
.required." Micolo v. Fuller, 15-CV-6374EAW,
2016 WL 158591, at *1 (W.D.N.Y. Jan. 13, 2016) (citation
omitted). However, the Court may grant a preservation Order
if a party can demonstrate that the evidence is in some
danger of being destroyed absent court intervention.
Id. Given plaintiff's exhibits detailing
DOCCS' retention policy, the Court finds it appropriate
to ensure that the recordings are preserved throughout the
pendency of this case.' Although it is not yet 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. See
West v. Goodyear Tire & Rubber Co., 167, F.3d 776,
779 (2d Cir. 1999) (defining spoliation of "evidence in
pending or reasonably foreseeable litigation.").
Accordingly, defendants shall suspend "its routine
document and retention/destruction policy" and are
hereby on notice to preserve all evidence reasonably related
to plaintiff's existing and proposed claims. Luellen
v. Hodge, No. 11-CV-6114P, 2014 WL 1315317, at *5
(W.D.N.Y. Mar. 28, 2014) (quoting Zubulake v. UBS Warburg
LLC, 220 F..R.D. 212, 218 (S.D.N.Y. 2003)).
Motion to Appoint Counsel (Docket # 60):
states that he requires the assistance of counsel because his
case involves "several different legal claims and that
each claim involves different defendants, " that will
require expert testimony and further investigation which he
will be unable to perform. See Docket # 60 at 7-8. At this
juncture, plaintiff's motion for counsel is denied
lawyer time is a precious commodity" that "should
not be allocated arbitrarily." Cooper v. A. Sargenti
Co., 877 F.2d 170, 172 (2d Cir. 1989). Plaintiff is well
aware of this fact as he is a repeat litigant before the
Court. See Decision and Order (Docket # 19) (revoking
plaintiff's in forma pauperis status based on
the three strike rule of 2 8 U.S.C. § 1915(g)). Having
reviewed the complaint and considered the nature of the
factual and legal issues involved, I conclude that
appointment of counsel is not warranted at this time. Mr.
Houston is an experienced pro se litigator who has
demonstrated proficiency in litigating his cases in federal
court. Plaintiff has drafted legible, organized, cogent and
appropriate pleadings, discovery demands and motions, and has
shown that he is capable of prosecuting his case. See
Perkins v. Napoli, No. 08-CV-6248, 2011 WL 4530672, at
*4 (W.D.N.Y. Sept. 28, 2011) (denying motion to appoint
counsel where "[p]laintiff is an experienced pro
se litigator who has shown he is perfectly capable of
prosecuting his federal cases"); Harris v.
McGinnis, No. 02 Civ. 6481(LTSDF), 2003 WL 21108370, at
*2 (S.D.N.Y. May 14, 2003} (denying application where
plaintiff seemed "capable of understanding and
presenting the legal issues raised by his claims, " as
his papers were clear, addressed relevant issues, and cited
pertinent case law); Avent v. Solfaro, 210 F.R.D.
91, 93-94 (S.D.N.Y. 2002) (where plaintiff demonstrated'
his ability to present facts and draft pleadings and motions
"backed by legal research, " court declined to
the limited resources available with respect to pro
bono counsel, I find no "special reason" why
appointment of counsel at this stage would be more likely to
lead to a just determination. See Harris v.
McGinnis, No, 02 Giv. 64 81 (LTSDF), 2003 WL 21108370,
at *2 (S.D.N.Y. May 14, 2003) (application denied where
plaintiff "offered no special reason why appointment of
counsel would increase the likelihood of a just
Motion to Sanction Defense Attorney (Docket # 62):
asks the Court to sanction defendants' counsel, Assistant
Attorney General Gary M. Levine, Esq., because Mr. Levine has
filed "procedurally deficient Rule 12 and Rule 5 6
motions, as a En] unnecessary delaying tactic and disrespect
for the Court." Docket # 62 at 8. This motion is denied.
First, the Court can discern no misconduct committed by
defense counsel, and - second, defense counsel has hot 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, Houston v. Sheahan et al., 6:13
-cv-6594-FPG. It is improper for plaintiff to seek sanctions
in this case for something that has occurred in another case.
reasons stated above, plaintiff's motion for preservation
of evidence (Docket # 57) is granted. Plaintiff's motion
for appointment of counsel (Docket #60) is denied.
Plaintiff's motion for sanctions (Docket # 62) is denied.