United States District Court, W.D. New York
December 8, 2014
AUREL SMITH, #02-A-6279, Plaintiff,
MARK BRADT, et al., Defendants
Aurel Smith, Plaintiff, Pro se, Attica, NY.
REPORT, RECOMMENDATION AND ORDER
JEREMIAH J. MCCARTHY, United States Magistrate Judge.
This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial proceedings . Before me are plaintiff's motions  for leave to file an Amended Complaint and for appointment of counsel . For the following reasons, the motion for appointment of counsel is denied, without prejudice, and I recommend that the motion for leave to amend be denied to the extent it seeks to assert proposed Counts Four and Five, but order that the motion otherwise be granted.
Plaintiff, a pro se inmate, commenced this action on May 1, 2013 pursuant to 42 U.S.C. § 1983 for conduct arising while he was incarcerated at Attica Correctional Facility. In granting plaintiff in forma pauperis status, the Complaint was screened pursuant to the Prison Litigation Reform Act (" PLRA"), 28 U.S.C. § 1915A, and plaintiff was permitted to proceed with two claims. The first claim alleges that defendants Mark Bradt, the Superintendent of Attica, and William Hughes, the Deputy Superintendent for Security at Attica, placed him in a double bunk cell with a chronic smoker exposing him to environmental tobacco smoke (" ETS") notwithstanding the fact that he suffers from asthma, and ignored his requests to be moved to another cell, in violation of his Eighth Amendment rights. Complaint , Counts One and Two. His second claim alleges that he was assaulted on January 5, 2013 by three John Doe defendant correction officers in retaliation for his grievances concerning the conditions of his confinement, in violation of his First and Eighth Amendment rights ( id.,
Counts Three and Four).
The screening resulted in the dismissal, with prejudice, of plaintiff's assault and retaliation claims against defendants Bradt and Hughes arising from the alleged January 5, 2013 assault based upon their lack of personal involvement. Decision and Order dated December 2, 2013 , pp. 4-6. The court also asked the New York State Attorney's General's Office to attempt to ascertain the identities of the John Doe defendants, and directed that once this information was provided that service would be completed on these defendants (id., p. 6). However, the New York State Attorney General's Office informed the court that Attica was not in possession of any documentation concerning any investigation or incident involving plaintiff on or around January 5, 2013 . Since the New York State Attorney General's Office was unable to provide any information concerning the identity of the John Doe defendants, plaintiff was advised that he " must attempt to ascertain the identities of the John Doe defendants through discovery from the defendants", and was reminded that he must do so within the three year statute of limitations for those offenses. January 29, 2014 Decision and Order , p. 2, n. 2.
After defendants Bradt and Hughes filed their Answer  to the Complaint, a preliminary pretrial conference was held on March 27, 2014 at which a Case Management Order  was implemented, requiring motions to amend pleadings to be filed by June 30, 2014 (id., ¶ 2). Plaintiff timely filed his motion  for leave to file an Amended Complaint by that deadline. The proposed Amended Complaint [19-1] repeats his existing claims against defendants Bradt and Hughes arising from his exposure to ETS (id., Count 1), and his assault and retaliation claims against the three John Doe defendants arising from the January 5, 2013 incident (id., Counts 2 and 3). He also seeks to add the following three new claims:
- - a claim against defendants Bradt and Hughes for " their deliberate indifference displayed via the manner in which they . . . allow the widespread and pervasive conditions of guard brutality to exist and be maintained at Attica . . . deprived plaintiff of and thus contributed toward the violation of plaintiff's right against the right to be free from cruel and unusual punishment resulting from prison guards' unjustified and malicious and sadistic uses of force", in violation of the Eighth Amendment (id., Count 4). As a result of this conduct, plaintiff seeks monetary damages (id., ¶ ¶ 102, 118-121);
- - a claim against defendants Bradt and Hughes, as well as proposed newly added defendants John Doe #4, DOCCS Deputy Commissioner for Facility Operations, Dale Artus, the current Superintendent of Attica, Anthony Annucci, the Acting Commissioner of DOCCS for " deliberate indifference to the ongoing widespread and pervasive conditions of guard brutality and its mutually reinforcing factors that contribute to it being maintained even after years of complaints by prisoners and their families along with official reports and recommendations by watchdog agencies and other organizational/advocacy bodies which . . . created an environment where there is a high propensity for prisoners to continue to be abused thus violating their Eighth Amendment rights in general and that of plaintiff's in particular", in violation of the Eighth Amendment (id., Count Six). As a result of this conduct, plaintiff seeks injunctive and declaratory relief (id., ¶ ¶ 106, 116); and
- - a claim against Hughes for violating plaintiff's " religious free exercise rights by continually denying plaintiff attending weekly congregate religious services in an unjustified . . . and arbitrary and capricious way, basing such denials on plaintiff's being given punitive cell confinement which also failed to comport with DOCCS own requirements to make out a valid and justified denial to attend congregate religious services by a keeplocked prisoner", in violation of the First Amendment and 42 U.S.C. § 2000cc-1 (id., Count Five).
After plaintiff moved for leave to file an Amended Complaint, I set a briefing schedule that initially required plaintiff's reply, if any, by June 30, 2014 , and that deadline was later extended at plaintiff's request to July 14, 2014 . However, explaining that he was suffering from depression, plaintiff did not file his reply until October 7, 2014 . To minimize any prejudice to defendants from plaintiff's untimely reply, I permitted defendants to submit a sur-reply . I also granted defendants' motion  to hold the deadlines of the Case Management Order in abeyance pending resolution of plaintiff's motion .
A. Plaintiff's Motion for Leave to File an Amended Complaint
Fed. R. Civ. P. (" Rule") 15(a)(2) provides that leave to amend " should [be] freely give[n] . . . when justice so requires" . The following four factors are commonly used to determine the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, and futility of amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962).
Additionally, " [w]hen a party seeks to amend a complaint to add more defendants, a court must also consider Rule 20(a) of the Federal Rules of Civil Procedure" . Barclay v. Poland, 2010 WL 3657664, *3 (W.D.N.Y. 2010) (Payson, M.J.), adopted 2010 WL 3660542 (W.D.N.Y. 2010) (Siragusa, J.). Rule 20(a)(2)(A) permits the joinder of additional defendants where the right to relief asserted against them arises out of the same transaction or occurrence and concerns a common question of law or fact.
" Similarly, Rule 15(d) permits the court, upon motion of a party, to allow the filing of a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. . . . Supplemental relief may include the addition of new defendants and new claims, if adequately related to the originally stated claims." Yates v. Cunningham, 2011 WL 7794998, *2 (W.D.N.Y. 2011). " Where the Plaintiff seeks to add related claims against the same or new defendants, the analysis under Rule 15(a) as to amendments and Rule 15(d) is the same." Bartels v. Incorporated Village of Lloyd Harbor, 2012 WL 2576142, *6 (E.D.N.Y. 2012).
Although defendants do not contest plaintiff's motion for leave to amend to the extent it seeks to repeat the claim against defendants Bradt and Hughes arising from plaintiff's alleged ETS exposure, they challenge the remaining claims he seeks to assert.
1. Proposed Counts Two and Three
These claims repeat the excessive force and retaliation claims against John Doe defendants arising from the alleged January 5, 2013 incident. Defendants argue that these claims should be dismissed since plaintiff has not undertaken to identify through discovery the identity of the John Doe defendants. Defendants' Memorandum of Law , pp. 18-19. At this stage, plaintiff's opportunity to identify the John Doe defendants through discovery has not expired since the deadlines of the Case Management Order, including the fact discovery deadline, have been held in abeyance pending resolution of the current motion. September 25, 2014 Text Order .
Defendants also argue that defendants Bradt and Hughes should not " be viewed as conduits for non-party discovery in unrelated claims against unrelated defendants" Defendants' Memorandum of Law , p. 19. However, Judge Siragusa has already directed plaintiff to " attempt to ascertain the identities of the John Doe defendants through discovery from the defendants " . January 29, 2014 Decision and Order , p. 2 (emphasis added).
Therefore, plaintiff's motion is granted to the extent it seeks to include these claims.
2. Proposed Counts Four and Six
These claims arise from plaintiff's allegations of " guard brutality" at Attica. Defendants argue that these claims are " not reasonably related to the pending case, would cause undue prejudice and delay, shows bad faith and would undermine the PLRA" which requires pro se complaints to be screened. Defendants' Memorandum of Law , p. 9. I do not find these arguments persuasive. First, liberally interpreting plaintiff's proposed Amended Complaint, I conclude that the proposed causes of action for deliberate indifference to be related to the pending excessive force claim arising from the January 5, 2013 incident. Plaintiff alleges that defendants " Bradt and Hughes's deliberate indifference led to the occurrence of the battery against plaintiff's person on January 5, 2013", and that this conduct also " gives basis as to plaintiff's pursuit of injunctive and declaratory relief to protect him from what happened against him on January 5, 2013" . Plaintiff's Reply , p. 19 of 31.
I also conclude that plaintiff did not unduly delay in seeking to amend the Complaint which was filed by the deadline for filing such motions. Nor do I find that plaintiff's motion functions as " an end around the screening procedures" of the PLRA, as my review of plaintiff's motion effectively acts to screen the pleading.
Alternatively, defendants argue that amendment should be denied since these claims are futile. Primarily, they argue that this claim improperly " attempts to advance claims of other inmates" and fails to " allege facts plausibly suggesting that any of the[ ] defendants were personally involved in the allegedly abusive conditions that affected him" . Defendants' Memorandum of Law , pp. 15, 17.
Plaintiff alleges that upon his arrival at Attica he and two other inmates " were accosted by several officers" and " told that if they were to get out of line then they would assuredly 'be hurt bad'" . Proposed Amended Complaint [19-1], ¶ 45. In establishing a pervasive " environment of guard brutality and systematic malfeasance" (id., ¶ 46), the proposed Amended Complaint also appears to rely upon a 2011 " official report" by the Correctional Association of New York that ranked Attica " as the worst in terms of staff-inmate relations, officer retaliation . .., and other instances of complaints about officer malfeasance" (id., ¶ 47). Plaintiff alleges that notwithstanding that the report " recommended a number of actions . . . to remedy the conditions at Attica", no such actions have been taken to curb the " abusive conditions plaguing Attica" (id., ¶ ¶ 48-49). As an example of the guard brutality, the proposed Amended Complaint details conduct experienced by a fellow inmate, Eli Perry (id., ¶ ¶ 50-58). He also alleges that since the January 5, 2013 incident during which was allegedly assaulted and threatened, he has " personally undergone numerous instance of verbal abuse" (id., ¶ 84).
Plaintiff lacks standing to assert claims on behalf of other prisoners. See, Walker v. Department of Correction Service, 2012 WL 527210, 1 n. 2 (S.D.N.Y. 2012) (" The Court will consider only plaintiff's claims lacks the requisite Article III standing to bring constitutional claims on behalf of other inmates . . . and because he, proceeding pro se, cannot bring a class action"); Crawford v. Cuomo, 2014 WL 897046, *5 (N.D.N.Y. 2014) (" To the extent that plaintiffs intend to assert supervisory liability claims on behalf of other inmates, they lack standing to do so"). Plaintiff acknowledges that he " is not seeking damages or relief from what occurred against inmate Perry" . Plaintiff's Reply , p. 18 of 31. Instead, he states that proposed Counts Four and Six arise from the January 5, 2013 incident (id., p. 17 of 31). However, his claims of retaliation and excessive force arising from that incident were previously dismissed, with prejudice, against defendants Bradt and Hughes for lack of personal involvement. See December 2, 2013 Decision and Order , p. 5. Therefore, to the extent plaintiff seeks to assert claims in proposed Count Four for damages against defendants Bradt and Hughes for the January 5, 2013 excessive force incident, I recommend that his motion to amend be denied.
However, the claim asserted by plaintiff in proposed Count Six is distinct from proposed Count Four and the retaliation and excessive force claims previously dismissed against Bradt and Hughes for lack of personal involvement. As plaintiff stresses, rather than seeking monetary damages, this claim seeks only injunctive and declaratory relief against the supervisory defendants in their official capacities to " protect [him] from the reoccurrence of the harms and battery he suffered at Attica on January 5, 2013" . Plaintiff's Reply , p. 17. Though defendants argue that personal involvement is not sufficiently alleged against the supervisory defendants (defendants' Memorandum of Law , p. 17), they ignore the case authority holding that " personal involvement is not required where a state official is sued in his official capacity for injunctive relief" . See Calvert v. State of New York, 2009 WL 3078864, *9 (W.D.N.Y. 2009) (Siragusa, J.). See Davidson v. Scully, 148 F.Supp.2d 249, 254 (S.D.N.Y. 2001) (" Personal involvement of an official sued in his official capacity is not necessary where the plaintiff is seeking only injunctive or declaratory relief under 42 U.S.C. § 1983").
While defendants argue that a similar claim brought by plaintiff for injunctive and declaratory relief arising from his incarceration at Coxsackie Correctional Facility were dismissed against three of the four supervisory defendants in Smith v. Martuscello, 2012 WL 4450025 (N.D.N.Y.), adopted, 2012 WL 4378125 (N.D.N.Y. 2012), that decision is not controlling upon this court. Moreover, as plaintiff notes, that decision is currently on appeal before the Second Circuit, which has appointed counsel to plaintiff and has requested the parties to address whether the factors addressed in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) factors as to supervisory liability apply where the plaintiff is seeking only injunctive or declaratory relief. (Case No. 13-3004). Although a decision on that appeal may be instructive here, neither party has requested that I stay the current motion pending the resolution of that appeal.
Defendants also point to the dismissal of plaintiff's claim that a defendant violated the Eighth Amendment by permitting abusive conditions to exist at Coxsackie based on the complaint's failure to allege the personal involvement of that defendant. Defendants' Memorandum of Law , p. 16 ( citing Smith v. Wildermuth, 2013 WL 877399, *8 (N.D.N.Y.), adopted 2013 WL 877512 (N.D.N.Y. 2013)). However, the claim in Wildermuth appears to have been for damages, rather than for injunctive relief.
Defendants Bradt and Hughes further argue that they are entitled to qualified immunity because, as supervisory defendants, " there is simply no way that they could have known - given the widely divergent court opinions on this issue - that their actions (or lack thereof) could violate plaintiff's alleged constitutional rights" . Defendants' Memorandum of Law, p. 18. This argument is premature. See Bernstein v. City of New York, 2007 WL 1573910, *9 (S.D.N.Y. 2007) (" Because the qualified immunity defense necessarily involves a fact-specific inquiry, it is generally premature to address the defense of qualified immunity in a motion to dismiss pursuant to [Rule] 12(b)(6)").
Therefore, I order that plaintiff be permitted to amend the Complaint to assert his proposed Count Six.
3. Proposed Count Five
Plaintiff's proposed Amended Complaint alleges that he received a baseless misbehavior report on May 28, 2013 from Correction Officer Adamy arising from his efforts to prepare an affidavit in connection with this case about " abusive prison conditions", which resulted in his being placed in disciplinary cell confinement for 45 days. Proposed Amended Complaint [19-1], ¶ ¶ 85-89. During this period he allegedly submitted requests to defendant Hughes to attend congregate services of his Muslim religion, which were denied, resulting in his missing approximately five Friday services, in violation of his First Amendment rights and RLUIPA (id., ¶ ¶ 89-94). Since these alleged events arose after plaintiff's May 1, 2013 Complaint, this portion of plaintiff's proposed Amended Complaint constitutes a supplementation, rather than an amendment.
" As a general matter, Rule 15(d) reflects a liberal policy favoring a merit-based resolution of the entire controversy between the parties. However, this liberal policy under Rule 15(d) is predicated on whether the supplemental facts connect the supplemental pleading to the original." Beckett v. Incorporated Village of Freeport, 2014 WL 1330557, *9 (E.D.N.Y. 2014) (internal citations and quotation marks omitted). Defendants argue that " [p]laintiff's proposed RLUIPA claim has no casual nexus to th[e] pending Eighth Amendment claim" . Defendants' Memorandum of Law , p. 11. By plaintiff's own admission, his " free exercise claim against Defendant Hughes . . . did not stem directly from the January 5, 2013 attack on plaintiff" . Plaintiff's Reply , p. 20 of 31. Instead, plaintiff explains that this claim is related to his existing claims since " it arose from an incident substantively connected to plaintiff's endeavor to amend his complaint" (id.).
That alleged connection is highly strained, since his proposed claim is based on the alleged denial of religious services by defendant Hughes, not on the alleged false misbehavior report prepared by Correction Officer Adamy while he was allegedly attempting to prepare an affidavit in connection with this case. Although Hughes is already a defendant in this case, " the presence of a common defendant is not, by itself, sufficient to satisfy Rule 15(d)" . Smith v. Goord, 2007 WL 496371, *3 (W.D.N.Y. 2007). Therefore, I recommend that plaintiff's motion for leave to file an Amended Complaint be denied to the extent it seeks to include this claim.
B. Motion to Appoint Counsel
Plaintiff seeks appointment of counsel " to best develop and litigate plaintiff's claims of exposure to excessive amounts of [ETS]" . , ¶ 5. He further argues that he is hampered in his ability to prosecute his case due to his incarceration and, as alleged in the proposed Amended Complaint ( see [19-1], ¶ ¶ 85-89), has been penalized for attempting to prosecute his case (id., ¶ ¶ 6, 9).
There is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). The decision as to whether or not to assign counsel lies clearly within the court's discretion. See In re Martin-Trigona, 737 F.2d 1254, 1260 (2d Cir. 1984). The factors to be considered include the following: (1) whether the indigent's claims seem likely to be of substance; (2) whether the indigent is able to investigate the crucial facts concerning his claim; (3) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder; (4) whether the indigent has the ability to present the case; (5) whether the legal issues involved are complex; and (6) whether there are any special reasons why appointment of counsel would be more likely to lead to a just determination. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986); Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001).
I must consider the issue of appointment of counsel carefully because " every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, I must first look to the " likelihood of merit" of the underlying dispute, Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997), and " even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the indigent's claim are thin and his chances of prevailing are therefore poor." Carmona, 243 F.3d at 632 (denying counsel on appeal where petitioner's appeal was not frivolous, but nevertheless appeared to have little merit).
While I am concerned about plaintiff's allegations that he was penalized for his attempts to prosecute this case, plaintiff has not shown that he is incapable of investigating the facts of this case or conducting discovery. Therefore, plaintiff's motion for appointment of counsel is denied without prejudice at this time.
If and when discovery reveals that the plaintiff's claims may be meritorious, he may reapply for counsel. However, at this time, it remains plaintiff's responsibility to retain an attorney or to prosecute this action pro se . 28 U.S.C. § 1654. In order to assist plaintiff in pursuing this case pro se, the clerk of the court is directed to send plaintiff the court's booklet entitled " Pro Se Litigation Guidelines.
For these reasons order that plaintiff's motion  for appointment of counsel be denied, without prejudice, and I recommend that his motion for leave to amend  be denied to the extent it seeks to assert proposed Counts Four and Five, but order that the motion otherwise be granted.
Unless otherwise ordered by Judge Arcara, any objections to this Report and Recommendation must be filed with the clerk of this court by December 29, 2014 (applying the time frames set forth in Rules 6(a)(1)(C), 6(d), and 72(b)(2)). Any requests for extension of this deadline must be made to Judge Arcara. A party who " fails to object timely . . . waives any right to further judicial review of [this] decision" . Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court's Local Rules of Civil Procedure, written objections shall " specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection . . . supported by legal authority", and must include " a written statement either certifying that the objections do not raise new legal/factual arguments, or identifying the new arguments and explaining why they were not raised to the Magistrate Judge" . Failure to comply with these provisions may result in the district judge's refusal to consider the objections.