The right to counsel provided for in the Sixth Amendment "extends only
to criminal and quasi — criminal proceedings." In re
Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). Here, plaintiff was
seeking counsel regarding a potential § 1983 action. Thus, his Sixth
Amendment rights could not have been abridged by Swiatek's presence.
Moreover, plaintiff was not communicating with an attorney (or a member
of his or her staff) who had agreed to represent plaintiff in any
Finally, even if plaintiff's claim could be construed as alleging a
denial of access to the courts, plaintiff can show no harm arising out of
Swiatek's presence. Plaintiff was seeking representation regarding
matters which became the subject of the § 1983 action currently
pending before this Court. Considering plaintiff's vigorous
self-representation and the voluminous filings submitted by plaintiff in
support of his claims, plaintiff's access to the courts has in no way
been impinged upon. Davidson v. Goord, 2000 WL 33174399, at *5 (W.D.N.Y.
Sept. 27, 2000) (citing Lewis v. Casey, 518 U.S. 343, 351 (1996)).
Therefore, defendants' motion for summary judgment is granted, and count
eight of plaintiff's complaint is hereby dismissed.
D. Plaintiff's Request for Injunctive or Declaratory relief
Plaintiff makes several requests for injunctive relief. He asks the
Court to order Attica Correctional Facility ("Attica"), the facility
where he was housed at the time his complaint was filed, to provide him
with orthopedic sneakers. He also asks the Court to require Attica to
send plaintiff for occupational therapy for his left hand.*fn3 As
discussed above, plaintiff has not established a constitutional violation
with respect to the denial of orthopedic sneakers or the treatment of
plaintiff's hand injury. Moreover, plaintiff has not raised a claim
against any Attica official or physician. Therefore, these requests for
injunctive relief are hereby denied.
Plaintiff also asks the Court to order all prison officials to cease
censoring his mail, and to prevent any retaliation related to the filing
of this lawsuit. Plaintiff has neither alleged nor established any
censorship or retaliation related to this lawsuit. Plaintiff's request
is, therefore, denied.
Finally, plaintiff's request for "a statement about the limits of all
of plaintiff's rights before they are violated" is likewise denied.
Defendants' motion for partial summary judgment (Dkt. #133) is
granted, and counts three, four, and eight, nine, ten, and eleven are
hereby dismissed. The Eighth Amendment claim against defendant Tan
articulated in count seven of plaintiff's complaint is dismissed.
Defendant Tan is granted leave to move for summary judgment on the
privacy claim expressed in count seven of plaintiff's complaint within
sixty days of the entry of this decision and order. Should Tan elect to
so move, he should address whether plaintiff's allegations can establish
a violation of § 1983 and whether Tan would be entitled to the
defense of qualified immunity.
Plaintiff's requests for declaratory and injunctive relief
are hereby denied.
To the extent that the remaining defendants are named in their official