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Read v. Kwiatkowski

United States District Court, W.D. New York

June 29, 2017

DAVID PAUL READ, Plaintiff,
v.
P. KWIATKOWSKI, Defendant.

          DECISION AND ORDER

          CHARLES J. SIRAGUSA, UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         Before 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.

         DISCUSSION

         Appointment of Counsel

         In his 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.

         Once the threshold showing has been made, the Court must consider other factors:

[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 determination.

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.

         In this 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.

         Temporary Restraining Order / Preliminary Injunction

         Plaintiff 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 ...


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