United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETH A. WOLFORD United States District Judge
Carlos Abreu ("Plaintiff), pro se and
incarcerated at Great Meadow Correctional Facility, filed
this action pursuant to 42 U.S.C. § 1983, alleging
constitutional violations arising out of his incarceration at
Wende Correctional Facility. (Dkt. 1). Pending before this
Court is Plaintiffs motion to recuse the undersigned from
this matter. (Dkt. 48). For the reasons discussed below, the
Court denies Plaintiffs motion.
AND PROCEDURAL HISTORY
commenced this action on October 20, 2014. (Dkt. 1). On
November 5, 2014, the Court denied Plaintiffs motion for
leave to proceed in forma pauperis, ordered the
Clerk of Court to close the case, and granted Plaintiff 30
days to move to reopen his case. (Dkt. 7). On December 9,
2014, the Clerk of Court entered judgment. (Dkt. 8). On
February 9, 2015, Plaintiff moved to reopen his case and
vacate the judgment. (Dkt. 9). The case was transferred to
the undersigned on April 7, 2015. (Dkt. 16).
3, 2015, the Court granted Plaintiffs motion to reopen the
case, granted him leave to proceed in forma
pauperis, consolidated another action filed by Plaintiff
(under case number 6:15-CV-06155) with this case, and granted
him leave to file an amended complaint within 30 days. (Dkt.
21). The Court explained that it could not effectively screen
Plaintiffs complaint pursuant to 28 U.S.C. § 1915(a) and
§ 1915A in light of the fact that it was handwritten and
voluminous, containing approximately "266 handwritten
pages, plus exhibits, 1170 numbered paragraphs and 131 named
and unnamed defendants, many of which are . . .
redundant." (Id. at 6). Plaintiff was mailed a
copy of his complaint and his supplement to his complaint
with a copy of the Decision and Order dated June 3, 2015.
25, 2015, the Court granted Plaintiffs request for an
extension of time to file an amended complaint on or before
September 1, 2015. (Dkt. 27).
September 2, 2015, Plaintiff requested another extension of
time to file an amended complaint, contending that he could
not submit one because of a recent surgery on his hand. (Dkt.
30 at 1). He also requested appointment of counsel to assist
in the preparation of an amended complaint. (Id. at
1-2). The Court granted Plaintiffs request for a second
extension of time, setting November 2, 2015, as the deadline
to file an amended complaint, but denied his motion for
appointment of counsel as premature. (Dkt. 31).
letter dated October 21, 2015, Plaintiff stated that he had
been transferred from Sullivan Correctional Facility to the
Special Housing Unit of the Great Meadow Correctional
Facility. (Dkt. 32 at 1). He stated, inter alia,
that prison staff restricted his access to writing supplies
(such as paper and envelopes) and confiscated his multiple
bags of legal papers, which he needed to prepare an amended
complaint. (Id. at 3). He requested that the Court
stay all deadlines in the case and schedule a videoconference
to discuss the issue of his access to legal papers.
(Id. at 3-4).
November 9, 2015, the Court granted Plaintiffs request to
stay the deadlines in this case pending a discussion of
Plaintiff s access to his legal papers at a December 8, 2015,
videoconference. (Dkt. 33). At the videoconference, the Court
directed Assistant Attorney General Hillel Deutsch
("A.A.G. Deutsch") to contact Great Meadows
Correctional Facility to facilitate Plaintiffs access to
legal papers. (See Dkt. 36).
letter to the Court dated December 10, 2015, A.A.G. Deutsch
outlined a process that the New York State Department of
Corrections and Community Supervision ("DOCCS")
designed to provide Plaintiff with access to his bags of
legal papers. (Dkt. 40 at 2). To access one of his bags,
Plaintiff would be required to make a written request to
switch out any bag for any other bag, and prison staff would
provide the new bag to him by the close of the next business
day. (Id.). Citing DOCCS Directives 4933, 4913, and
4911, A.A.G. Deutsch explained that "legal papers on
active cases are permitted [in a prisoner's cell] to the
extent that they do not constitute a fire hazard."
(Id. at 1). In a letter to the Court dated December
29, 2015, A.A.G. Deutsch informed the Court that Plaintiff
was refusing to participate in the process because he
believed he should have access to multiple bags of legal
papers in his Special Housing Unit cell at one time,
notwithstanding the security and safety concerns set forth by
A.A.G. Deutsch. (Dkt. 41).
Court held a further status conference on January 12, 2016.
(Dkt. 38). Plaintiffs access to his bags of legal papers and
writing supplies was discussed at length during the status
conference. (Abreu v. Farley, No. 6:11-CV-06251 EAW,
Dkt. 91 (1/12/16 Status Conference Transcript)). The Court
informed Plaintiff that he was free to file a motion seeking
relief from DOCCS's process regarding his bags of legal
papers and that the Court would consider any such motion, but
on the record before it, the Court found no basis to order
DOCCS to take any different action. (Id. at 9-10).
The Court also expressed skepticism that Plaintiff had no
access to writing supplies given that he had recently
submitted written materials to the Court, but nevertheless
informed Plaintiff that "if, in fact, [he] ha[d] proof
that [he was] being denied paper and writing materials, then
[he] c[ould] file a motion ... to extend the six-month
deadline" to file an amended complaint. (Id. at
the status conference, on January 24, 2016, the Court issued
a scheduling order setting July 15, 2016, as the deadline for
Plaintiff to file an amended complaint. (Dkt. 39). The Court
stated that it would not grant any additional extensions of
February 24, 2016, Plaintiff moved to vacate and reconsider
the Court's scheduling order. (Dkt. 42). In his motion,
Plaintiff reiterated his assertion that he had been denied
access to writing supplies, as well as his bags of legal
papers, and requested not only that the Court vacate its
scheduling order, but also that it order DOCCS to provide
Plaintiff writing supplies and his bags of legal papers.
(Id. at 12-13). The Court denied the motion
"for the reasons stated on the record at the status
conference held on January 12, 2016, " and reiterated
that the amended complaint had to be filed on or before July
15, 2016. (Dkt. 43). The Court reasoned that "Plaintiffs
submission of approximately 28 pages of handwritten materials