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Munger v. Cahill

United States District Court, N.D. New York

May 16, 2017

BRIAN S. MUNGER, Plaintiff,
DR. GERALD CAHILL; et al., Defendants.

          BRIAN S. MUNGER Plaintiff, pro se

          HON. ERIC T. SCHNEIDERMAN New York Attorney General Attorney for Defendants

          HELENA O. PEDERSON, ESQ. Ass't Attorney General


          BRENDA K. SANNES United States District Judge


         This action was brought pro se by plaintiff Brian S. Munger seeking redress for the violation of his constitutional rights during his confinement at Franklin Correctional Facility ("Franklin C.F.") in 2013. See Dkt. No. 1 ("Compl.").[1] Upon review of plaintiff's complaint in accordance with 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A, this Court concluded that plaintiff's claims that defendants Dr. Cahill and Nurse White were deliberately indifferent to his serious medical needs and that Nurse White provided false information to Dr. Cahill in retaliation for plaintiff having filed grievances against her survived initial review and required a response. Dkt. No. 10 ("October Order") at 19.[2]

         An answer to the complaint was filed on behalf of Dr. Cahill and Nurse White on November 18, 2016. Dkt. No. 17. Discovery is ongoing. See Dkt. No. 18 (Mandatory Pretrial Discovery and Scheduling Order) Dkt. No. 54 (Hummel, M.J.).[3]

         Presently before the Court are several letter motions from plaintiff. Dkt. Nos. 23, 24, 36, 40. Liberally construed, plaintiff seeks an order of this Court granting his request to add his brother as a "secondary claimant" in this action, directing his transfer to Washington Correctional Facility ("Washington C.F."), and prohibiting mistreatment by staff at Ulster Correctional Facility ("Ulster C.F."). Dkt. Nos. 23, 24. Plaintiff has also filed renewed requests that pro bono counsel be appointed to represent him in this action. Dkt. Nos. 36, 40.


         A. Preliminary Injunctive Relief

         Preliminary injunctive relief "'is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir. 2005) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). "In general, district courts may grant a preliminary injunction where a plaintiff demonstrates 'irreparable harm' and meets one of two related standards: 'either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party.'" Otoe-Missouria Tribe of Indians v. New York State Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (quoting Lynch v. City of N.Y., 589 F.3d 94, 98 (2d Cir. 2009) (internal quotation marks omitted)). However, when the moving party seeks a "mandatory preliminary injunction that alters the status quo by commanding a positive act, " the burden is "even higher." Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (citing Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010) (internal quotation marks omitted)). Thus, a mandatory preliminary injunction "should issue only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Citigroup Global Mkts., 598 F.3d at 35 n.4 (internal quotation marks omitted).[4]

         In his first motion, plaintiff states that his health is "not very good" and expresses concern that he will not be able to "fairly and financially/properly continue this claim without the extensive help from family." Dkt. No. 23 at 1-3. In order to facilitate the pursuit of his claims, plaintiff requests that he be permitted to appoint his brother Darryl K. Munger as a "secondary claimant, " and that he be transferred to Washington C.F., which is located "within (1) one hour of my family." Id.; see also Dkt. No. 24 at 6. Plaintiff states that he will continue to "be the signer of all documents, and be responsible for properly executing [his] claim, " see Dkt. No. 23 at 2. With respect to his requested transfer to Washington C.F., plaintiff states that in light of his limited financial resources, physical proximity to his family will permit them to "travel to swap documents and research for copying and what not." Dkt. No. 36 at 6.

         Defendants oppose the requested relief. Dkt. No. 26. As defendants correctly note, plaintiff's brother is not alleged to have any standing to pursue the claims in this action on his own behalf and there is no basis upon which he can be added to this action as a party. Id. at 1-2. Defendants also oppose plaintiff's request that he be transferred to Washington C.F. and urge denial of this aspect of his motions. Dkt. No. 26 at 2; Dkt. No. 27 at 3. Defendants contend that it is DOCCS, and not this Court, which determines where plaintiff will be housed during his period of incarceration. See Meachum v. Fano, 427 U.S. 215, 229 (1976) ("The federal courts do not sit to supervise state prisons, the administration of which is [of] acute interest to the States."); Olim v. Wakinekoma, 461 U.S. 238, 248-49 (1983) (inmates have no right to be confined in a particular state or particular prison within a given state); Montayne v. Haymes, 427 U.S. 236, 243 (1976) (New York state prisoners have no right to incarceration at a particular prison facility).

         Upon review and with due regard for plaintiff's status as a pro se litigant, the Court finds that there is no basis in the record upon which the requested relief may be granted and, therefore, denies his motion (Dkt. No. 23). Plaintiff has not identified any basis upon which his brother may appear in this action on his behalf.[5] By statute, parties appearing in a federal court may "plead and conduct their own cases personally or by counsel." 28 U.S.C. § 1654; see Berrios v. New York City Hous. Auth., 564 F.3d 130, 132 (2d Cir. 2009). "Although [section] 1654 thus recognizes that an individual generally has the right to proceed pro se with respect to his own claims or claims against him personally, the statute does not permit unlicensed laymen to represent anyone else other than themselves." Berrios, 564 F.3d at 132 (internal quotation marks omitted; emphasis in original).[6] "A power of attorney does not allow that person to proceed pro se on behalf of their principal[.]" Clark v. Burge, No. 06-CV-0658, 2007 WL 1199475, at *2 (W.D.N.Y. Apr. 19, 2007).[7] Moreover, plaintiff's desire to be in close contact with and physical proximity to his family, no matter how sincere, is not sufficient to warrant the requested judicial relief.[8]

         In his second motion, filed during his confinement at Ulster C.F., plaintiff claims that he was being denied proper and adequate medical care in retaliation for his having filed this lawsuit. Dkt. No. 24.[9] As alleged, medical staff at Ulster C.F. denied plaintiff access to his medical devices and discontinued previously prescribed pain medication. Id. Plaintiff seeks an order directing that his medical ...

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