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Abreu v. Brown

United States District Court, W.D. New York

March 7, 2017

CARLOS ABREU, Plaintiff,
v.
KEVIN J. BROWN, et al, Defendants.

          DECISION AND ORDER

          ELIZABETH A. WOLFORD United States District Judge

         INTRODUCTION

         Plaintiff 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.

         BACKGROUND AND PROCEDURAL HISTORY

         Plaintiff 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).

         On June 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. (Id.).

         On June 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).

         On 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).

         In a 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).

         On 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).

         In a 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).

         The 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 12).

         After 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 time. (Id.).

         On 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 ...


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