United States District Court, W.D. New York
DECISION AND ORDER
CHARLES J. SIRAGUSA, UNITED STATES DISTRICT JUDGE.
the Court are Plaintiff's motions seeking a temporary
restraining order, ECF No. 31 and ECF No. 48, appointment of
pro bono counsel, ECF No. 42, and an order limiting evidence
at trial, ECF No. 47. Defendant has not filed any opposition
to Plaintiff's applications.
application, Plaintiff seeks “assignment of
counsel….” At the outset, when considering the
appointment of pro bono counsel, the Court must
determine whether Plaintiff has made, “a threshold
showing of some likelihood of merit.” Cooper v. A.
Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989);
Hodge v. Police Officers, 802 F.2d 58, 59 (2d Cir.
1986). Plaintiff alleges in his complaint that on July 6,
2015, at approximately 7:30 p.m., Defendant directed him to
complete a work detail, contrary to Plaintiff's medical
restriction. Further, that while on the work detail,
Plaintiff's knee collapsed causing him to break a door.
Finally, Plaintiff asserts that Defendant retaliated against
him by filing an inmate misbehavior report alleging that
Plaintiff refused to work, complained loudly when forced to
do so, said he would only complete the work detail (washing
walls in a corridor) by taking his “sweet time, ”
was yelling and causing a disturbance, berated the
correctional officer in front of other inmates, slammed a
door so hard it broke the top closure arm and four screws
fell out, and then lied about the door already being broken.
the threshold showing has been made, the Court must consider
[T]he indigent's ability to investigate the crucial
facts, whether conflicting evidence implicating the need for
cross-examination will be the major proof presented..., the
indigent's ability to present the case, the complexity of
the legal issues and any special reason in that case why
appointment of counsel would be more likely to lead to a just
Hodge, 802 F.2d at 61-62; see Ferrelli v. River
Manor Health Care Center, 323 F.3d 196, 203 (2d Cir.
2003) (applying the Hodge factors); Hendricks v.
Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (same).
“Volunteer lawyer time is a precious commodity, ”
Cooper, 877 F.2d at 172.
case, the matter is not complex, and the legal issues
involved are straight forward and easily understood without
legal training. Therefore, the Court determines that, after
reviewing the Hodge factors, Plaintiff is not
entitled to pro bono services from counsel and must
either retain counsel at his own expense, or press on pro
se in this case. His motion to appoint counsel, ECF No.
42, is denied.
Restraining Order / Preliminary Injunction
filed two applications for a TRO or preliminary injunction.
In ECF No. 31, he seeks an Order
enjoining the defendants…from, thwarting Plaintiff
from possession of manila envelopes to file his brief, allow
access to all legal material as needed to perfect his civil
action without interference by N.Y.S. / DOCCS, correctional
officers within (SHU) at Mid-State or anywhere Plaintiff may
be housed, and not to be retaliated against for litigating.
Also not to tamper or destroy any legal mail, document, that
are in Plaintiff's personal property that my jeoperdise
[sic] his litigation thereof.
ECF No. 31 at 1. Plaintiff contends that corrections staff
have not permitted him to obtain manila envelopes with which
to file briefs with the Court, “leaving all work
product exceeding over 5, 000 pages loosely ...