Opinion
Civil Action No. 9:10-CV-0787 (DNH/DEP)
12-28-2012
ANDRE R. LEVESQUE, Plaintiff, v. CLINTON COUNTY, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: ANDRE R. LEVESQUE, Pro Se 93 Elm Street, Apartment #3 Champlain, New York 12919 FOR DEFENDANTS: LEMIRE JOHNSON LLC P.O. Box 2485 2534 Route 9 Malta, New York 12020 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE OF COUNSEL: GREGG T. JOHNSON, ESQ. APRIL J. LAWS, ESQ.
APPEARANCES: FOR PLAINTIFF: ANDRE R. LEVESQUE, Pro Se
93 Elm Street, Apartment #3
Champlain, New York 12919 FOR DEFENDANTS: LEMIRE JOHNSON LLC
P.O. Box 2485
2534 Route 9
Malta, New York 12020 DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE OF COUNSEL: GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ. REPORT, RECOMMENDATION AND ORDER
Pro se plaintiff Andre R. Levesque, who, at the relevant times, was incarcerated at the Clinton County Correctional Facility ("CCCF"), has commenced this action against the County of Clinton ("County") and various, unidentified "John Doe" defendants asserting a variety of claims arising out of his confinement. Plaintiff's complaint alleges that prison officials at the CCCF failed to accommodate his medical needs stemming from a skin disorder, which, he maintains, constitutes a disability within the meaning of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiff's complaint additionally alleges that he was assaulted by prison guards in retaliation for filing grievances related to his disability.
Currently pending before the court in connection with this action are twenty-two motions, twenty of which have been filed by the plaintiff, seeking a variety of relief. Defendant County has moved for judgment on the pleadings dismissing plaintiff's complaint for failure to state a claim upon which relief may be granted. The County also seeks reconsideration of a prior order compelling discovery. Plaintiff, in turn, has twice requested leave to file an amended complaint adding new defendants and claims, and has filed eighteen other motions seeking appointment of counsel, orders compelling discovery, various forms of injunctive intervention, and other relief unrelated to the factual allegations and causes of action set forth in his complaint. For the reasons set forth below, I recommend that defendant County's motion to dismiss be granted in part and denied in part; all of plaintiff's motions for injunctive relief be denied; plaintiff's motion for contempt and sanctions be denied; and plaintiff's motion for an order vacating his criminal conviction be denied. In addition, defendant County's motion for reconsideration is granted; plaintiff's motions for leave to amend his complaint are denied; and the remaining motions, all of which have been filed by plaintiff, are denied. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S. Ct. 1955, 1965 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964).
Plaintiff suffers from a skin disorder known as Epidermolysis Bullosa Simplex ("EBS"), Weber-Cockayne type. Complaint (Dkt. No. 1) at 2. Plaintiff describes EBS as a progressively debilitating chronic condition that can be painful, causing skin blistering and other similar damage, and often resulting in extreme sensitivity to temperature changes. Id. Plaintiff alleges that while he was confined in the CCCF, prison officials failed to accommodate his EBS condition by neglecting to provide him with appropriate clothing. Id. at 3. Plaintiff also alleges that, on June 10, 2009, he was assaulted by prison guards at the prison facility in retaliation to his filing grievances against prison officials for allegedly failing to accommodate his EBS condition. Id. at 4.
As a result of these allegations, plaintiff's complaint, liberally construed, asserts five causes of action against defendants, including (1) violation the ADA; (2) excessive force, in violation of his Eighth Amendment rights, pursuant to 42 U.S.C. § 1983; (3) deliberate indifference to his serious medical needs, in violation of his Eighth Amendment rights, pursuant to section 1983; (4) retaliation, in violation of his First Amendment rights, pursuant to section 1983; and (5) municipal liability against defendant County, pursuant to section 1983. See generally Complaint (Dkt. No. 1). As relief, plaintiff seeks the arrest of "all parties . . . who stood by and watched [the assault], yet did nothing," as well as $25 million and an apology by the governor of the State of New York. Id. at 4. II. PROCEDURAL HISTORY
On July 20, 2009, prior to commencing this action, Levesque filed suit in the United States District Court for the District of New Hampshire against various defendants, including Clinton County and the CCCF, raising several of the same claims now asserted in this action. Levesque v. State of New York, et al., No. 1:09-CV-00246. While the complaint in that action discussed his alleged disability in a general sense, it did not appear to focus upon the failure of personnel at the jail to accommodate that disability. Id., Dkt. No. 1. The complaint in that action did, however, make reference to the alleged assault on June 10, 2009. Id. at 2. Following an initial review of plaintiff's complaint, that action was dismissed based upon a report and recommendation issued by Magistrate Judge James R. Muirhead on October 14, 2009, and approved by Chief District Judge Stephen J. McAuliffe on November 3, 2009. Id., Dkt. Nos. 3, 5. Judge Murihead's report included a finding that plaintiff's complaint failed to allege facts plausibly suggesting the existence of a policy or custom allowing or enabling employees to violate the constitutional rights of inmates like the plaintiff. Id.
Plaintiff commenced this action on July 10, 2010, against the County, an unidentified lieutenant corrections officer, and unidentified "John Doe" prison guards. Complaint (Dkt. No. 1). Issue was joined by the filing of an answer on behalf of defendant County on October 6, 2011. Dkt. No. 22. Shortly thereafter, the court issued a mandatory pretrial discovery and scheduling order, dated October 11, 2011, setting forth certain requirements for discovery and establishing deadlines for completion of discovery and the filing of motions. Dkt. No. 23.
The deadlines set forth in the court's scheduling order have since been stayed by the court. Text Minute Entry dated Mar. 21, 2012.
On February 16, 2012, plaintiff submitted a proposed amended complaint in the action, in which he seeks to add defendants and expand the factual allegations supporting his claims. Dkt. No. 45. Because plaintiff's time to amend without leave of court has expired, the court construes this as a motion for leave to amend his complaint. Defendant County has opposed the filing of that amended complaint, largely on the basis of futility. See generally Dkt. Nos. 47, 48. Without waiting for the court to respond to his first motion to for leave to amend, plaintiff filed a second motion for leave to amend on May 29, 2012. Dkt. No. 74.
In addition to opposing plaintiff's motion to amend, defendant County has moved for judgment on the pleadings dismissing the claims set forth in plaintiff's original complaint, pursuant to Rule 12(c) of the Federal Rule of Civil Procedure. Dkt. No. 48. Plaintiff opposed defendant County's motion to dismiss on April 30, 2012, Dkt. No. 63, and the County filed its reply to that opposition on May 11, 2012, Dkt. No. 71.
On May 29, 2012, the court received a submission from plaintiff that it has construed as a surreply in connection with defendants' dismissal motion. Dkt. No. 76. Because surreplies are not permitted under this court's local rules, and plaintiff did not seek permission to file a surreply, that submission is stricken and has not been considered by the court. See N.Y.N.D. L.R. 7.1(b)(1) ("A surreply is not permitted.").
Plaintiff's motions for leave to amend fall within my non-consensual jurisdiction, and therefore will be decided in this opinion. Defendant County's motion to dismiss, which is dispositive in nature, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). Fed. R. Civ. P. 72(b).
In addition to the foregoing, the following nineteen motions are pending before the court in connection with this action:
| Date Filed | Dkt. No. | Movant | Relief Sought |
| 3/1/12 | 46 | Plaintiff | Restraining order precludingplaintiff's return to the CCCF |
| 5/11/12 | 55 | Plaintiff | Appointment of counsel andprivate investigator or specialprosecutor |
| 4/18/12 | 56 | Plaintiff | An order directing the CCCF toprovide plaintiff with free postage |
| 4/25/12 | 59 | Plaintiff | An order compelling discovery |
| 4/25/12 | 60 | Plaintiff | Stay of the deportation of a fellowCCCF inmate |
| 4/27/12 | 62 | Def. Cnty. | Reconsideration of a prior order(Dkt. No. 50) compellingdiscovery |
| 4/30/12 | 64 | Plaintiff | Order compelling discovery |
| 5/2/12 | 66 | Plaintiff | Appointment of counsel |
| 5/7/12 | 67 | Plaintiff | Relief from criminal lawsregarding possession ofmarijuana |
| 5/7/12 | 68 | Plaintiff | Injunction against implementationof the Leahy-Smith AmericaInvents Act, Pub. L. 112-29, 125Stat. 284 (2011) |
| 5/29/12 | 74 | Plaintiff | Appointment of counsel |
| 5/29/12 | 77 | Plaintiff | Order compelling discovery |
| 7/16/12 | 78 | Plaintiff | Order compelling discovery |
| 8/16/12 | 80 | Plaintiff | Contempt order and sanctions |
| 9/6/12 | 81 | Plaintiff | Order compelling discovery |
| 9/10/12 | 82 | Plaintiff | Disqualification of myself as theassigned magistrate judge |
| 11/2/12 | 85 | Plaintiff | Order compelling discovery |
| 11/29/12 | 87 | Plaintiff | Injunction and/or restraining orderagainst New York State, orderdirecting an investigation by theUSDOJ, and an order vacatingplaintiff's conviction |
All of these nineteen motions will be disposed of in this decision, with the exception of plaintiff's seven motions for injunctive relief, plaintiff's motion for contempt, and plaintiff's motion for an order vacating his conviction, which will be addressed herein as a recommendation to the assigned district judge, pursuant to 28 U.S.C. § 636(b)(1)(B). III. DISCUSSION
A. Defendant County's Motion for Judgment on the Pleadings
Because defendant County has moved for judgment on the pleadings, the court will only analyze plaintiff's ADA and section 1983 municipal liability claims, which are the only two claims asserted against that defendant. As it relates to plaintiff's section 1983 claims of excessive force, deliberate indifference, and retaliation allegedly caused by individuals, a municipality cannot be found liable under a theory of respondeat superior for the alleged constitutional violations by its employees. See Monell v. Dep't Soc. Svcs. of City of New York, 436 U.S. 658 (1978) ("In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory."). The court will also address defendant County's argument that "plaintiff's punitive damage claims must be dismissed[.]" Dkt. No. 48, Attach. 1 at 22.
(1) Legal Standard Governing Judgment on the Pleadings
Defendants' motion is brought pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, which provides that "[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). When analyzing a Rule 12(c) motion, the court must apply the same standard as that applicable to a motion under Rule 12(b)(6). See, e.g., Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994); Wynn v. Uhler, 941 F. Supp. 28, 29 (N.D.N.Y. 1996) (Pooler, J.).
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true, and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546 (1964); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion "is not whether [the] plaintiff is likely to prevail ultimately, 'but whether the claimant is entitled to offer evidence to support the claims.'" Log On Am., Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp. 2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995)). Accordingly, a complaint should be dismissed on a motion brought pursuant to Rule 12(b)(6) only where the plaintiff has failed to provide some basis for the allegations that support the elements of his or her claim. Bell Atl. Corp. v.Twombly, 550 U.S. 544, 563, 570 (2007); see also Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) ("In order to withstand a motion to dismiss, a complaint must plead 'enough facts to state a claim for relief that is plausible on its face.'") (quoting Twombly). "While Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570) (alterations omitted).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotations marks omitted)); Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Hurd, J.). In the event of a perceived deficiency in a pro se plaintiff's complaint, a court should not dismiss without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991) (citing Fed. R. Civ. P. 15(a) ("The court should freely give leave [to amend] when justice so requires.")).
2. Plaintiff's Title II ADA Claim
To the extent that plaintiff's complaint could be construed to assert a Title I ADA claim, I recommend dismissal of that claim with prejudice for the reasons stated in defendant County's memorandum of law in support of its motion for judgment on the pleadings. Dkt. No. 48, Attach. 1 at 14. See Padilla v. New York State Dep't of Labor, 09-CV-5291, 2010 WL 3835182, at *3 (S.D.N.Y. Sept. 13, 2010) ("To plead a Title I violation, a plaintiff must allege that (1) the defendant is subject to the ADA; (2) he is "disabled" within the meaning of the statute or perceived to be so by his employer; (3) he was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (4) he was subject to an adverse employment action because of his disability."). Plaintiff's complaint does not allege that he is, or was, an employee of defendant County. See generally Complaint (Dkt. No. 1).
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity." 42 U.S.C. § 12132. The protections offered under this provision extend to inmates in state and local correctional facilities like the CCCF. Pennsylvania Dep't of Corrs. v. Yeskey, 524 U.S. 206, 213 (1998) ("[T]he plain text of Title II of the ADA unambiguously extends to state prison inmates[.]").
To state a claim under Title II of the ADA, a plaintiff must allege "that (1) he or she is a qualified individual with a disability; (2) . . . the defendants are subject to the ADA; and (3) . . . plaintiff was denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or was otherwise discriminated against by defendants, by reason of plaintiff's disabilities." Shomo v. City of New York, 579 F.3d 176, 185 (2d Cir. 2009) (internal quotation marks and alterations omitted). In its motion, defendant County argues that plaintiff's Title II ADA claim does not meet this standard because plaintiff cannot establish that his skin condition constitutes a disability under the ADA, and also in light of the fact that his complaint has not alleged facts plausibly suggesting that he was prevented from participating in or benefitting from any prison program or services because of his disability. Dkt. No. 48, Attach. 1 at 14-16.
(a) Whether Plaintiff's Complaint Alleges a Disability Under the ADA
The threshold inquiry in this case is whether plaintiff's complaint alleges facts plausibly suggesting that EBS constitutes a disability under the ADA. Generally, the ADA defines "disability" as "a physical or mental impairment that substantially limits one or more major life activities of an individual[.]" 42 U.S.C. § 12102(1)(A); see also PGA Tour, Inc. v. Martin, 532 U.S. 661, 668 n.7 (2001). "Major life activities" include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 42 U.S.C. § 12102(2)(A). "An activity is 'substantially limited' when an individual cannot perform an activity that an average person in the general population could perform, or faces significant restrictions in the condition manner, or duration under which the individual can perform the activity." Murphy v. Bd. of Educ. of Rochester City School Dist., 273 F. Supp. 2d 292, 315 (W.D.N.Y. 2003) (internal quotation marks and alterations omitted).
To state a claim under the ADA, a plaintiff's complaint must plead facts plausibly suggesting that his alleged disability can meet all of the elements contained in the ADA's definition of disability. See Thompson v. New York City Dep't of Probation, No. 03-CV-4182, 2003 WL 22953165, at *3 n.5 (S.D.N.Y. Dec. 12, 2003) ("Under the ADA definition of 'disability,' merely pleading a physical impairment without specifying that it 'substantially limits' a 'major life activity' may be insufficient to state a claim for relief."); see also Hale v. King, 642 F.3d 492, 500 (5th Cir. 2011) (holding that, "[t]o establish a claim under [42 U.S.C. § 12102(1)(A)], a plaintiff must allege that he (1) has a[n] . . . impairment that (2) substantially limits (3) a major life activity," and dismissing plaintiff's complaint where it failed to allege, inter alia, "that his conditions substantially limited him in his performance of a life activity"); Cox v. Civista Med. Ctr.,16 F. App'x 185, 186 (4th Cir. 2001) (affirming district court's dismissal of the plaintiff's complaint because it failed to "demonstrate a disability" under 42 U.S.C. § 12102(1)(A) or (B)); Ajuluchuku v. Macy's, No. 12-CV-1855, 2012 WL 5464467, at *3 (E.D. Cal. Nov. 7, 2012) (dismissing plaintiff's amended complaint because it did "not allege facts establishing any of [the] elements [of 42 U.S.C. § 12102(1)]); Detko v. Blimpies Rest., 924 F. Supp. 555, 557 (S.D.N.Y. 1996) (dismissing plaintiff's complaint for failure to state a claim where the complaint failed to allege that his speech impediment "substantially limits his speaking" (emphasis in original)).
With these guiding principles as a backdrop, and after careful consideration, I find that plaintiff's complaint does not contain allegations plausibly suggesting that his EBS condition is an impairment that substantially limits any major life activity, as those terms are defined by the ADA. See generally Complaint (Dkt. No. 1). More specifically, plaintiff's complaint contains only the following allegation explaining his EBS condition: "I have Epidermalysis Bullosa Simplex weber cocayne/Dytrofic toraine ect etc. progressive Debilitating c[h]ronic . . . severe genetic disposition thats excruciatingly painful at times." Id. at 2. This allegation, even liberally construed and taken as true, does not plausibly suggest that the condition substantially limits his major life activities because, by the allegation's own terms, the EBS condition only causes plaintiff pain, and only occasionally affects him in a significant manner.
See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("In considering Rule 12 motions to dismiss, the Court must accept the facts appearing on the face of the complaint as true, and consider them along with such reasonable inferences as may be drawn in a complainant's favor.").
While his complaint is lacking in this regard, in response to defendant County's motion for judgment on the pleadings, plaintiff argues that EBS is more than just severely painful some of the time. See generally Dkt. No. 63. For example, he argues that writing with a pen causes him "bodily injury," that he cannot walk a far distance without pain ("unless barefoot in the sand"), and that EBS is a severe, painful, genetic disorder that "is life altering from birth to death and can be fatal[.]" Dkt. No. 63 at 3-4. Liberally construed, I conclude that these allegations are sufficient to plausibly suggest that EBS substantially limits plaintiff's major life activities.
The court is permitted to consider these arguments contained in plaintiff's response because they are consistent with the allegations contained in plaintiff's complaint. See Donhauser, 314 F. Supp. 2d at 121 ("[I]n cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the complaint to the extent they are consistent with the allegations of the complaint." (internal quotation marks omitted)).
Accordingly, I conclude that plaintiff's ADA claim is not subject to dismissal at this early procedural juncture for failure to plausibly allege that he has a disability as that term is defined under the ADA.
(b) Whether Plaintiff's Complaint Alleges Facts Plausibly Suggesting That Defendant County Failed to Accommodate His Disability
Defendant County's second argument is that plaintiff's complaint fails to allege facts plausibly suggesting that defendant County did not accommodate plaintiff's disability as required by the ADA because failing to provide special clothing does not constitute denial of "services, programs, or activities" under Title II of the ADA. Dkt. No. 48, Attach. 1 at 16.
The plain language of Title II provides that a public entity may not deny a person the opportunity to take advantage of "services, programs, or activities" because of his disability. 42 U.S.C. § 12132. The Second Circuit has said that "services, programs, or activities" "is a catch-all phrase that prohibits all discrimination by a public entity, regardless of context[.]" Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 45 (2d Cir. 1997), superceded on other grounds by Zervos v. Verizon New York, Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001); see also Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) ("Quite simply, the ADA's broad language brings within its scope 'anything a public entity does.'" (quoting Yeskey v. Pennsylvania Dep't of Corrs., 118 F.3d 168, 171 & n.5 (3d Cir. 1997), aff'd 524 U.S. 206 (1998))); Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998) ("[W]e find that the phrase 'services, programs, or activities' encompasses virtually everything that a public entity does.").
In this instance, plaintiff's complaint alleges that defendant County discriminated against him based on his alleged disability by failing to provide him with "appropriate clothing to accom[o]date for [his] disability[.]" Complaint (Dkt. No. 1) at 3. Mindful of the Second Circuit's broad construction of the phrase "services, programs, or activities," I find that this is sufficient to state a claim under Title II of the ADA, since it alleges that defendant County refused to provide Levesque with clothing that would allegedly accommodate his EBS condition. Assuming that plaintiff's allegations are true, they could plausibly suggest that defendant County unlawfully discriminated against plaintiff based on his EBS condition.
For these reasons, I recommend that defendant County's motion for judgment on the pleadings, as it relates to plaintiff's Title II ADA claim, be denied.
3. Plaintiff's Section 1983 Municipal Liability Claim
Although defendant County did not address plaintiff's section 1983 municipal liability claim in its motion for judgment on the pleadings, for the sake of completeness, I will address it briefly.
To state a claim against a municipality for a constitutional violation pursuant to section 1983, a plaintiff must allege that "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality's] officers." Monell v. Dep't of Soc. Svcs. of City of New York, 436 U.S. 658, 690 (1978). A municipality cannot be held liable under section 1983 for the "actions alleged to be unconstitutional by its employees below the policymaking level on the basis of respondeat superior." Zahra v. Town of Southbold, 48 F.3d 674, 685 (2d Cir. 1995); see also Monell, 436 U.S. at 691. To prevail on a section 1983 claim against a municipality, a plaintiff must demonstrate that the policy, ordinance, regulation, or decision adopted by the municipality, and implemented by its employee(s), caused the plaintiff's alleged constitutional deprivation. Monell, 436 U.S. at 691-92. This can be shown by establishing either that the policy itself is unconstitutional, or that the application of an otherwise lawful policy is unconstitutional. Amnesty Am. v. Town of Hartford, 361 F.3d 113, 125 (2d Cir. 2004).
Here, plaintiff's complaint contains no allegations plausibly suggesting that defendant County has promulgated a policy, ordinance, regulation, or decision that, when implemented by its officers, has resulted in a violation of plaintiff's constitutional rights. See generally Complaint (Dkt. No. 1). Indeed, a review of plaintiff's complaint reveals that it is wholly devoid of allegations regarding defendant County, and none of the allegations contained within it plausibly suggest that defendant County's policies gave rise to his section 1983 claims of retaliation, excessive force, or medical indifference. Id.
Moreover, in plaintiff's response to defendant County's motion for judgment on the pleadings, he only conclusorily alleges that defendant County created a "culture and custom of ass[a]ulting people, . . . civil rights violations etc. at CCCF by its employees." Dkt. No. 63 at 12, 40. Such conclusory allegations are insufficient to state a claim. Anderson v. Connell, No. 08-CV-0176, 2009 WL 3165541, at *2 (N.D.N.Y. Sept. 29, 2009) (Homer, M.J.) ("[A] complaint containing conclusory allegations without factual support fails to meet even the liberal standard of Rule 12(b)(6).").
Finally, even liberally construed, the remaining allegations contained in plaintiff's response are insufficient to state a claim for municipal liability. For example, plaintiff does not allege that he requested and was refused medical care for his EBS condition on multiple occasions; moreover, even assuming that he did, he does not contend that, as a result of a policy, custom, ordinance, or regulation promulgated by defendant County, CCCF prison officials denied him the requested medical care. Rather, plaintiff alleges that he was incarcerated at CCCF only between May and July of 2009, and his allegations regarding his requests for medical care are vague. Although the court is mindful of the deference owed to pro se litigants when construing a pleading, here, even the most generous construction does not save plaintiff's section 1983 municipal liability claim against defendant County.
For the foregoing reasons, I find that plaintiff's complaint fails to state a claim for municipal liability against defendant County.
Although the court has some difficulty in finding that the defects discerned in connection with this claim are tantamount to mere failures to fulfill formal requirements, rather than being indicative of an inability to state a cognizable Monell claim based upon the circumstances presented, I remain mindful of the special solicitude afforded pro se civil rights litigants. Ruotolo v. IRS, 28 F.3d 6, 8 (2d Cir. 1994). As a result, I recommend that plaintiff be afforded an opportunity to cure the perceived deficiencies, and that his section 1983 municipal liability claim against defendant County be therefore dismissed with prejudice unless he files an amended complaint that corrects the pleading defects in that claim, as described in this part, within thirty days of the date of any decision and order by the assigned district judge adopting this recommendation.
In the event that plaintiff chooses to renew his motion for leave to amend, he is reminded that the local rules of practice for this court require, among other things, that the amended complaint be wholly integrated and complete, and must not rely upon or incorporate by reference his original complaint or any document previously filed with the court. N.D.N.Y. L.R. 7.1(a)(4). Stated differently, any amended complaint must replace the original complaint in its entirety, as well as any documents filed by the plaintiff with his original complaint. In addition, plaintiff is reminded that he must specifically include "the proposed amendments and identify the amendments in the proposed pleading, either through the submission of a red-lined version of the original pleading or other equivalent means." Id.
4. Plaintiff's Punitive Damage Claim
As relief, plaintiff's complaint seeks recovery of $25 million. Complaint (Dkt. No. 1) at 4. Defendant County has construed this demand to include a request for an award of punitive damages, and seeks dismissal of that claim. Dkt. No. 48, Attach. 1 at 22.
It is well established that, as a municipal entity, defendant County is not subject to exposure to punitive damages, including for claims brought under 42 U.S.C. § 1983 and the ADA. Ciraulo v. City of New York, 216 F.3d 236, 238 (2d Cir. 2000) (holding that the Supreme Court's decision in City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), precludes an award of punitive damages under section 1983 against a municipality); Barnes v. Gorman, 536 U.S. 181, 189 (2002) (Stevens, J. concurring) ("[A]n analysis of the text and legislative history of . . .Title II of the Americans with Disabilities Act of 1990 . . . indicates that Congress did not intend to authorize a punitive damages remedy for violations of [the] statute[.]"); SJB v. New York City Dep't of Educ., 03-CV-6653, 2004 WL 1586500, *8 (S.D.N.Y. July 14, 2000) ("Punitive damages for private claims are not available under either the Rehabilitation Act or the Americans with Disabilities Act."); Taylor v. Phoenixville School Dist., 113 F. Supp. 2d 770, 777 (E.D. Pa. 2000) ("It is clear that punitive damages under the ADA are not available against a municipality."). Because plaintiff's complaint asserts only claims arising under section 1983 and the ADA against defendant County, I recommend that any punitive damage claim that may be considered as having been asserted against defendant County in plaintiff's complaint be dismissed with prejudice.
B. Plaintiff's Motions for Leave to Amend
On February 16, 2012, plaintiff submitted an "Amended Complaint" ("February motion"). Dkt. No. 45. I have construed that submission as a motion for leave to file an amended complaint, which plaintiff requested of the court during a telephone conference held on January 18, 2012. Text Minute Entry dated Jan. 18, 2012. Without waiting for the court to respond to this motion, plaintiff filed a second motion for leave to file an amended complaint ("May motion") on May 29, 2012. Dkt. No. 74.
Plaintiff's February motion was filed without any supporting motion papers, despite a directive issued by the court during a telephone conference held on January 18, 2012, that such supporting papers be included with any motion for leave to amend. Dkt. No. 45. In addition, plaintiff's February motion fails to indicate whether, pursuant to court order, he provided defense counsel with his proposed amended complaint before filing it with the court. Id. Plaintiff's failure to comply with these court orders alone provides a proper basis to deny his February motion.
Plaintiff's February and May motions are also subject to denial based upon their failure to comply with the local rules of the court. More specifically, Local Rule 7.1 requires that, when a litigant moves for leave to file an amended complaint, the motion "must set forth specifically the proposed amendments and identify the amendments in the proposed pleading, either through submission of a red-lined version of the original pleading or other equivalent means." N.D.N.Y. L.R. 7.1(a)(4) (emphasis added). Courts in this district have frequently denied motions for leave to amend for failure to comply with this local rule. See Kent v. New York, 11-CV-1533, 2012 WL 6024998, at *15 (N.D.N.Y. Dec. 4, 2012) (D'Agostino, J.) (denying the plaintiffs permission to file an amended complaint because of their failure to comply with Local Rule 7.1(a)(4)); Donohue v. New York, 11-CV-1530, 2012 WL 6020058, at *16 (N.D.N.Y. Dec. 3, 2012) (D'Agostino, J.) (same); Fahs Const. Group, Inc. v. Gray, 11-CV-1533, 2012 WL 2873532, at *6 (N.D.N.Y. July 12, 2012) (Suddaby, J.) (same); Cusamano v. Sobek, 604 F. Supp. 2d 416, 508 (N.D.N.Y. 2009) (Suddaby, J.) ("Indeed, Plaintiff's failure to comply with Local Rule 7.1(a)(4) constitutes an independent ground upon which to deny his motion."). Neither plaintiff's February motion nor his May motion meet these requirements. See generally Dkt. Nos. 45, 74.
For all of these reasons, plaintiff's motions for leave to file an amended complaint are denied, without prejudice to resubmission in compliance with these requirements. If plaintiff chooses to file a renewed motion for leave to file an amended complaint, however, he is reminded of his obligations to comply with any court order and the local rules of the court, including Local Rule 7.1, governing motions for leave to amend.
C. Plaintiff's Motions for Injunctive Relief
Plaintiff has filed seven motions seeking various forms of injunctive relief, all unrelated to one another, and some bearing no relationship to his underlying claims. Dkt. Nos. 46, 56, 60, 67, 68, 87. For the reasons stated below, I recommend that all seven motions be denied.
1. Docket Number 46
In one of his motions, plaintiff requests that the court issue a "restraining order" against the State of New York. Dkt. No. 46 at ¶ 7. Liberally construed, in that motion, plaintiff appears to seek a court order enjoining the State of New York from returning him to the CCCF because the two correctional officers at that facility who allegedly assaulted him on June 10, 2009, had not, as of the date of his motion, been prosecuted for the alleged assault. Id. at ¶¶ 1-2, 4. Plaintiff seeks this preliminary injunctive relief "until these two men are pro[se]cuted or [f]ired from their jobs." Id. at ¶ 7.
Plaintiff was not incarcerated at the time he filed his motion, nor does his motion allege that his return to prison is inevitable. Dkt. No. 46 at 2. Indeed, it appears that plaintiff has again been released from prison, and there is nothing in the record to suggest that he is destined to return. Dkt. No. 86. For these reasons, I find that plaintiff's request for a preliminary injunction prohibiting the State of New York from returning plaintiff to the CCCF is moot. See Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) ("In order for a federal court to retain jurisdiction over a case, an actual controversy must exist at all stages of review, not merely at the time the complaint is filed. A case is deemed moot where the problem sought to be remedied has ceased, and where there is no reasonable expectation that the wrong will be repeated." (internal quotation marks and citations omitted)).
Even if plaintiff's motion was found to be ripe for review, it would fail because the court may not issue an injunction against a non-party. Fed. R. Civ. P. 65(d) ("The [injunction] order . . . binds only . . . the parties[.]"); see also United States v. Regan, 858 F.2d 115, 120 (2d Cir. 1988) ("[A] court may not issue an order against a nonparty."); Gantt v. Lape, No. 10-CV-0083, 2012 WL 4033729, at *2 (N.D.N.Y. July 31, 2012) (Suddaby, J.) ("[E]xcept in limited circumstances . . ., a court may not order injunctive relief as to non-parties to an action."); Lewis, 2010 WL 1268024, *2. Because the State of New York is not a party to this action, the court is precluded from issuing an order enjoining its conduct.
For these reasons, I recommend that plaintiff's motion for a preliminary injunction against the State of New York be denied.
2. Docket Number 56
In another of his motions, plaintiff requests an injunction effectively ordering the CCCF to pay for any mail sent by him to the court. Dkt. No. 56 at 1.
As discussed above, because plaintiff is no longer incarcerated, plaintiff's request does not present an actual controversy, and the motion is moot. See Prins, 76 F.3d at 506 ("In order for a federal court to retain jurisdiction over a case, an actual controversy must exist at all stages of review, not merely at the time the complaint is filed. A case is deemed moot where the problem sought to be remedied has ceased, and where there is no reasonable expectation that the wrong will be repeated." (internal quotation marks and citations omitted)). For this reason, I recommend that plaintiff's motion for an injunction mandating that the CCCF provide him postage for his legal mail be denied.
3. Docket Number 60
Plaintiff next requests that the court issue an injunction preventing the United States from deporting an inmate named Aldo Contreras, who allegedly was, at one time, incarcerated at the CCCF. Dkt. No. 60 at ¶ 3. Plaintiff argues that, because he intends to call Mr. Contreras as a witness at trial, the United States should wait to deport him until after he testifies. See id. ("I want him to be able to stay in America until he testifies, . . . then you can deport him.").
As was discussed above, "a court may not issue an order against a nonparty." Regan, 858 F.2d at 120; see also Fed. R. Civ. P. 65(d) ("The [injunction] order . . . binds only . . . the parties[.]"); Gantt, 2012 WL 4033729, at *2 ("[E]xcept in limited circumstances . . ., a court may not order injunctive relief as to non-parties to an action."); Lewis, 2010 WL 1268024, *2. Because neither the United States nor Mr. Contreras is a party to this action, the court has no authority to issue the injunction requested by plaintiff. For this reason, I recommend that plaintiff's request for an injunction preventing the deportation of Mr. Contreras be denied.
4. Docket Number 67
Liberally construed, plaintiff further requests that the court issue an order enjoining law enforcement from enforcing the criminal laws regulating marijuana use and possession against him. Dkt. No. 67 at 5.
"To prevail on a motion for preliminary injunctive relief, the moving party must establish a relationship between the injury claimed in the motion and the conduct giving rise to the complaint." McKinnon v. Tresman, No. 30-CV-2305, 2004 WL 78091, at *1 (D. Conn. Jan. 9, 2004) (citing Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) ("It is self-evident that [the plaintiff]'s motion for temporary relief has nothing to do with preserving the district court's decision-making power over the merits of [his] 42 U.S.C. § 1983 lawsuit.")); see also Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) ("Thus, a preliminary injunction may never issue to prevent an injury or harm which not even the moving party contends was caused by the wrong claimed in the underlying action.").
Here, plaintiff's complaint asserts five causes of action, including (1) violation of plaintiff's rights under the ADA; (2) excessive force, in violation of his Eighth Amendment rights; (3) deliberate indifference to his serious medical needs, in violation of his Eighth Amendment rights; (4) retaliation, in violation of his First Amendment rights; and (5) municipal liability against defendant County. See generally Complaint (Dkt. No. 1). Even when liberally construed, plaintiff's motion for an order enjoining law enforcement from enforcing the laws regulating the use and possession of marijuana against him does not relate to any of these claims. Accordingly, I recommend that plaintiff's motion be denied.
To help illustrate this point, the court highlights just one of plaintiff's arguments in support of his motion, in which he contends that if a woman may legally obtain an abortion in the United States, he is entitled to immunity from the laws governing marijuana. Dkt. No. 67 at 3.
5. Docket Number 68
In his next motion for injunctive relief, plaintiff requests that the court issue an order enjoining the enactment of the Leahy-Smith America Invents Act because he has "an [i]dea" but does not wish to patent it at this time, and the Leahy-Smith America Invents Act will protect a person who chooses to patent plaintiff's idea before him because of its first-to-patent provision. Dkt. No. 68 at 2-3; see also Dkt. No. 73.
I recommend denial of this motion because, even liberally construed, it does not relate to any of the underlying claims asserted in plaintiff's complaint. See e.g., McKinnon, 2004 WL 78091, at *1 ("To prevail on a motion for preliminary injunctive relief, the moving party must establish a relationship between the injury claimed in the motion and the conduct giving rise to the complaint.").
6. Docket Number 87
Plaintiff's last application for injunctive relief includes two separate requests. First, plaintiff seeks an order enjoining the State of New York from "sponsoring a state [sanctioned] torture." Id. at ¶¶ 16(a), 18. Second, plaintiff petitions the court to commission the USDOJ to conduct an investigation. Id. at ¶ 18. As was discussed above, the court is precluded from issuing an injunction against a non-party. Fed. R. Civ. P. 65(d) ("The [injunction] order . . . binds only . . . the parties[.]"); see also Regan, 858 F.2d at 120 ("[A] court may not issue an order against a nonparty."); Gantt, 2012 WL 4033729, at *2 ("[E]xcept in limited circumstances . . ., a court may not order injunctive relief as to non-parties to an action."); Lewis, 2010 WL 1268024, *2. Because neither the State of New York nor the USDOJ is a party to this action, I recommend that these requests be denied.
D. Plaintiff's Motions for Appointment of Counsel
Also pending before the court are three motions filed by plaintiff for appointment of pro bono counsel to represent him in this action, as well as the appointment of an investigator to assist that attorney. Dkt. Nos. 55, 66, 74. These motions represent renewals of a previous, unsuccessful effort by him to obtain appointment of pro bono counsel. Dkt. No. 12.
"Broad discretion lies with the district judge in deciding whether to appoint counsel[.]" Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). For good reason, however, a court should not grant an application by a pro se party for appointment of pro bono counsel indiscriminately, and each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (McAvoy, J.). Although the constitution guarantees indigent litigants "meaningful access" to the courts, "no court has yet held 'meaningful access' to mean that indigents must always be supplied with counsel in civil as well as criminal cases." Hodge, 802 F.2d at 61.
In deciding whether to appoint pro bono counsel, a court should consider "the merits of the plaintiff's case, the plaintiff's ability to pay for private counsel, his efforts to obtain a lawyer, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues unassisted by counsel." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d. Cir. 1989). The Second Circuit has identified "the merits of the plaintiff's case" as a significant factor, and has held that, "[e]ven where the [plaintiff's] claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim." Cooper, 877 F.2d at 172 (internal quotation marks omitted). Only after a court gives serious consideration to this factor may it consider the "secondary criteria" listed above (i.e., the plaintiff's ability to pay for counsel, efforts at obtaining a lawyer, availability of counsel, and the plaintiff's ability to represent himself). Id.
When a court exercises its discretion to appoint counsel, the attorney assigned is called upon to donate his time pro bono, to the benefit indigent litigants and the court. Accordingly, because this service is available in only limited quantities, and the number of indigent litigants seeking counsel far exceeds these available resources, the court must exercise good judgment and restraint must be exercised in making pro bono appointments. Cooper, Inc., 877 F.2d at 172; see also Miller v. Pleasure, 296 F.2d 283, 285 (2d Cir. 1961) (finding that the district court did not abuse its discretion in denying the plaintiff's request for counsel where "the chances of any measure of success . . . [were] so dubious that a judge cannot properly ask a member of the bar to assume the thankless burden").
Here, plaintiff has been persistent in his quest for appointment of counsel, having now applied four times for such relief. Dkt. Nos. 10, 55, 66, 74. The Second Circuit has noted that
[a]vailable volunteer-lawyer time should not be allocated . . . on the basis of the aggressiveness and tenacity of the claimant. Pro bono publico suggests meaningfully that distribution of this resource should
be made with reference to public benefit. The ancient adage about the 'squeeky wheel' may well be an accurate statement of the law of nature; it should not be adopted also as a law of prescription.Cooper, 877 F.2d at 172. Accordingly, when reviewing plaintiff's requests for appointment of counsel, I have not considered the sheer number of applications made for that relief.
Turning to the merits of plaintiff's application for counsel, I have considered the factors the Second Circuit has said should inform a court's determination in such matters, including the merits of plaintiff's case and his chances of success. Cooper, 877 F.2d at 172. At the outset, I note that, although plaintiff initiated this action in July 2010, it has just barely advanced beyond the pleading stage. As a result, and based on the record currently before the court, I cannot predict that plaintiff will succeed. In addition, I have taken into consideration that plaintiff's claims in this case are not overly complex, involving principally an alleged failure to accommodate a disability under Title II of the ADA, and an assault by corrections officers. I have also considered the fact that plaintiff appears to have capably navigated the court system based on his prolific and persistent court filings. Finally, I note that, because plaintiff is now released from prison, he is free to investigate and pursue his claims without the obvious impediments associated with incarceration. For all of these reasons, plaintiff's applications for appointment of counsel and an investigator are denied.
The court emphasizes that this observation in no way endorses plaintiff's prolific filings with the court. Instead, I use this opportunity to remind plaintiff that he would be well served to limit his focus to the facts of this case, without straying to matters unrelated to his claims.
In addition, the court finds that some of plaintiff's filings are frivolous and vexatious. For example, plaintiff's motions for injunctive relief relating to the enforcement of criminal marijuana laws, Dkt. No. 67, and the LeahySmith America Invents Act, Dkt. No. 68, are entirely unrelated to the claims asserted in plaintiff's complaint. In addition, plaintiff's motion requesting an injunction enjoining law enforcement from enforcing the criminal laws regulating marijuana against plaintiff contain inflammatory comments that serve no useful purpose. See Dkt. No. 67 at ¶ 10 ("What are you all going to do, have me beat up again and robbed???"), ¶ 11 ("I am illegally smoking marijuana right now!"). As a result, plaintiff is hereby warned that any future frivolous or vexatious filings will result in the issuance of sanctions that potentially could include the issuance of an antifiling injunction and/or a bar order. See Viola v. U.S., 307 F. App'x 539, 539 (2d Cir. 2009) (explaining that "[t]he procedure for imposing leavetofile sanctions involves three stages: (1) the court notifies the litigant that future frivolous filings might result in sanctions; (2) if the litigant continues this behavior, the court orders the litigant to show cause as to why a leavetofile sanction order should not issue; and (3) if the litigant's response does not show why sanctions are not appropriate, the court issues a sanctions order" (citing Iwachiw v. N.Y. State Dep't of Motor Vehicles, 396 F.3d 525, 529 (2d Cir. 2005))).
In the event that this action survives dispositive motion practice and is set down for trial, in all likelihood, the court will follow its custom and practice of assigning an attorney to represent the plaintiff at trial, should he desire the services of counsel at that juncture.
E. Plaintiff's Motion for Recusal
Plaintiff seeks my recusal as the assigned magistrate judge in this case. Dkt. No. 82. Such recusal requests are governed by 28 U.S.C. §§ 144 and 455. Under section 144, a judge may be required to recuse himself based on "personal bias or prejudice against [a party] or in favor of any adverse party." 28 U.S.C. § 144. Generally, section 455 warrants recusal "in any proceeding in which [a judge's] impartiality might be reasonably questioned," 28 U.S.C. § 455(a), or where a judge has "a personal bias or prejudice concerning a party," 28 U.S.C. § 455(b)(1). These two sections are complementary, and the grounds for disqualification are the same under both statutes. Jemzura v. Publ. Serv. Comm'n, 961 F. Supp. 406, 410 (N.D.N.Y. 1997) (McAvoy, C.J.) (citing Apple v. Jewish Hosp. & Med. Ctr., 829 F.2d 326, 333 (2d Cir. 1987)).
A party may request that a judge be recused from a case and another substituted in his stead by filing an affidavit stating "the facts and the reasons for the belief that bias or prejudice exists[.]" 28 U.S.C. § 144. Whether an appearance of impartiality exists is an objective question "based on what a reasonable person knowing all the facts would conclude." Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 127 (2d Cir. 2003). The Supreme Court has emphasized that, where grounds for recusal are comprised of "judicial rulings [and] routine trial administration efforts," recusal is generally not warranted, absent proof that those rulings either rely upon knowledge acquired outside such proceedings or "display deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 556 (1994); see also Kampfer v. Gokey, 955 F. Supp. 167, 170 (N.D.N.Y. 1997) (Scullin, J.).
In his motion, plaintiff does not explicitly allege that I am biased against him. Rather, he appears to base his request upon the court's delays in reaching the merits of his case and suggests, as one plausible explanation, that the court is not doing its job. Although this is not an adequate basis for recusal, and the court could summarily deny plaintiff's motion, as a gesture of courtesy to plaintiff as a pro se litigant, I offer the following brief response.
This case has been pending for two and one-half years. During its lifetime, however, the case has been the subject of considerable procedural activity, attributable primarily to plaintiff's constant filing of motions, including two motions to amend his complaint, which, if granted, would have resulted in further delay.
It is no secret that this district has an extremely large number of pending cases, including many initiated by prison inmates, and that the average time to disposition of cases in this court far exceeds the national average. The court understands that this is a matter of frustration for some litigants, as it is for the court itself. With its limited resources, however, the court is doing everything within its power to address this case, as well as the hundreds of other assigned, pending actions. Nonetheless, the delay in this case is not undue, in comparison with other actions in this court, including those assigned to other magistrate judges.
Recognizing the importance of considerations such as "the cost in judicial resources of recusal and reassignment of the case to different judges, and the interest of the parties and the public in a swift resolution of [a] dispute," the Second Circuit has cautioned that "'[a] judge is as much obliged not to recuse himself when it is not called for as he is obliged to when it is.'" In re Literary Works in Elec. Databases Copyright Litig., 509 F.3d 136,140 (2d Cir. 2007) (quoting In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1312 (2d Cir. 1988)). In this instance, with no expectation that it would lead to a more prompt disposition, I decline to shift the burden of addressing this case to another judge. Plaintiff's motion for recusal is therefore denied.
F. Plaintiff's Motions To Compel Discovery
To date, the court has entertained several motions by the plaintiff to compel discovery in this action. Dkt. Nos. 28, 31, 36, 40 and 44. Those applications have resulted in the issuance of two orders, the first dated January 20, 2012 ("the January order"), rejecting most of plaintiff's discovery requests, but ordering the production of certain information, including the identity of specific individuals stationed at the CCCF, in order to assist plaintiff in identifying the defendants named only as "John Doe(s) Corrections Guards." Dkt. No. 42. The second order, dated March 22, 2012 ("the March order"), directed defendants to produce the full names of physicians, mental health workers, and intake specialists seen by the plaintiff during his period of incarceration at the CCCF, and additionally to produce to plaintiff all medical records associated with this incarceration at the facility. Dkt. No. 50.
The March order has since been stayed pending resolution of defendants' motion for reconsideration. Text Order Dated April 5, 2012; Dkt. No. 62.
Currently pending before the court are six additional motions to compel discovery filed by plaintiff. Dkt. Nos. 59, 64, 77, 78, 81, and 85. For the reasons set forth the below, all of these motions are denied.
1. Docket Number 59
In his first motion to compel, plaintiff requests copies of a videotape taken at the CCCF on April 21, 2012, when a fellow inmate at the CCCF was allegedly assaulted, and another from February 5, 2012, when yet another CCCF inmate was allegedly punched. Dkt. No. 59. Because there is no indication in plaintiff's submission that the officers involved in those two alleged assaults were the same as those involved in his assault, I find that the materials sought are not relevant to any of the claims or defenses in the action. That application is therefore denied.
2. Docket Number 64
Liberally construed, plaintiff's second motion to compel requests that the court order defendants to obtain the records that pertain to plaintiff from various municipalities and agencies in New Hampshire. See generally Dkt. No. 64. Plaintiff argues that he is entitled to these records because they are relevant to demonstrate his mental health status. Id. at ¶¶ 4-5.
This request is denied for two reasons. First, there is no indication that records from a New Hampshire municipality or agency are within the possession, custody, or control of the defendants in this action. Fed. R. Civ. P. 34(a)(1). Second, plaintiff has not demonstrated that these records are relevant to any of his claims. Plaintiff's Title II ADA claim is based on his EBS condition, which is a physical condition that allegedly affects only his skin, not his mental health. In addition, plaintiff does not contend that his mental health status is related, in any way, to his section 1983 causes of action. Accordingly, that request is denied.
3. Docket Number 77
Plaintiff's third motion to compel seeks information concerning an incident that occurred in May 2012, allegedly in retaliation for having commenced this action. Dkt. No. 77. Because plaintiff has not supplemented or amended his complaint to include those later events, I find that the materials sought by plaintiff are not relevant to any of the claims or defenses in this action. Accordingly that request is denied.
4. Docket Number 78
Plaintiff's fourth motion to compel is duplicative of an earlier motion to compel filed by plaintiff, Dkt. No. 40, which I addressed in my January order. More specifically, plaintiff renews his request for the court to issue an order compelling defendants to produce the videotape that allegedly recorded his alleged assault at the CCCF on June 9, 2010. Dkt. No. 78 at ¶ 6.
In response to plaintiff's first motion to compel production of that videotape, defendant County submitted an affidavit from Jail Administrator Michael Smith averring that the videotape is no longer available due to CCCF's custom and practice that requires videotapes to be held only for ninety days. Dkt. No. 35, Attach. 6 at ¶ 10. Based on that affidavit, I denied plaintiff's motion to compel production of the requested videotape. Dkt. No. 42.
Because plaintiff's pending motion to compel this same videotape contains no new evidence that either contradicts Smith's affidavit or suggests the videotape actually exists, that motion is denied.
5. Docket No. 81
In his fifth motion to compel, plaintiff requests a videotape from August 12, 2012, a day on which he allegedly filed a grievance concerning verbal abuse unrelated to the claims in this action. Dkt. No. 81. In this motion, when liberally construed, plaintiff appears to argue that this video will show that grievances filed by him at the CCCF disappear. Id. at ¶ 5. Because plaintiff's application does not seek information relevant to any of the claims or defenses in this case, this application is denied.
6. Docket Number 85
Plaintiff's sixth motion to compel, filed on November 2, 2012, again seeks a videotape that allegedly recorded an incident on September 23, 2012, unrelated to plaintiff's claims in this action, in which an inmate at CCCF was assaulted. Dkt. No. 85 at ¶ 3. Because there is no indication that this incident is in any way related to or involves the same officers as the alleged assault in this case, plaintiff's request is denied.
G. Plaintiff's Motion for Contempt
Also pending before the court is plaintiff's motion seeking an order from the court finding defendant County in contempt for failing to comply with the March order, which ordered defendants to produce certain discovery. Dkt. No. 80. The motion also requests the court sanction defendant County $1 million. Id. Because the March order has been stayed by text order issued on April 5, 2012, and because, as discussed more completely below, I have chosen to vacate the March order, I recommend that plaintiff's application for sanctions based upon defendants' failure to comply with that order is denied.
The papers in support of this motion contain extremely alarming and inappropriate language, including the following statement:
As an extra sanction I would like to cut the thro[a]ts of 100 of Clinton County's children and ask the court to issue the death sentence for the defendants' sickness.Dkt. No. 80 at ¶ 4. This statement could be regarded as a threat, the utterance of which could constitute a crime under New York State law. See N.Y. Penal Law § 490.20 ("A person is guilty of making a terroristic threat when with intent to intimidate or coerce a civilian population, influence the policy of a unit of government by intimidation or coercion, . . . he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation or fear of the imminent commission of such offense."). Any future submissions containing statements of this nature will be reported to appropriate law enforcement authorities, including, but not limited to, plaintiff's probation or parole officer, if applicable. Parenthetically, the court notes that such threats are not protected by the First Amendment. See U.S.v. Chatelain, 360 F.3d 114, 125 (2d Cir. 2004) ("Threats, whether explicit or implicit, are not protected speech.").
The issuance of a contempt finding based upon a party's failure to obey a court order exceeds my jurisdiction as a magistrate judge. See NXIVM Corp. v. Bouchey, 11-MC-0058, 2011 WL 5080322, at *3 (Peebles, M.J.) (finding that, pursuant to 28 U.S.C. § 636(e), "in a case other than one over which the magistrate judge presides with a consent of the parties . . ., a magistrate judge is not authorized to issue a final contempt order"); see also Wallace v. Kmart Corp., 687 F.3d 86, 90 (3d Cir. 2012). For this reason, I have formatted the portion of the decision that addresses plaintiff's request for a contempt finding as a recommendation to the assigned district judge.
H. Plaintiff's Request to Vacate His Conviction
On November 29, 2012, the court received an extensive submission from the plaintiff. Dkt. No. 87. Although difficult to discern, it appears to contain three requests. The first two requests seek injunctive relief, and were addressed above. The third request asks the court to vacate plaintiff's criminal conviction. Id. at ¶¶ 16(c), 18.
The proper means of requesting a court to vacate a criminal conviction is through a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, not through a civil rights action pursuant to 42 U.S.C. § 1983. Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973), accord, Beasly v. Rosenblum, 05-CV-1381, 2005 WL 1984461, at *2 (E.D.N.Y. Aug. 17, 2005). For this reason, plaintiff's motion is denied.
The court notes that, like the plaintiff in Beasly, because plaintiff in this case has been released from prison, he may not be able to satisfy the "in custody" requirement for habeas relief. Beasly, 2005 WL 1984461, at *2 n.1 (citing Billiteri v. U.S. Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976)).
I. Motion for Reconsideration
The last motion to be addressed by the court is defendants' application for reconsideration of the March order, in which I directed defendants to produce to plaintiff "the full names of the two physicians, any nurses, all mental health workers and all intake specialists seen by the plaintiff during his period of incarceration at Clinton County Correctional Facility." Dkt. No. 50 at 2. That directive was intended to assist plaintiff in identifying certain signatures on relevant documents, and to locate potential witnesses. On April 4, 2012, defendants moved for reconsideration, arguing that the safety of the individuals whose full names the court ordered defendants to disclose would be at risk if defendants were required to comply. Dkt. No. 62. That concern stems from plaintiff's arrest, which has since ripened into a conviction, for making a terroristic threat in violation of New York Penal Law § 490.20. Dkt. No. 51, Attach. 1 at 2. Plaintiff was arrested for writing and sending a letter to a local newspaper, in which he noted his right to bear arms against an oppressive government, and stated the following:
So if I am to return to the jail it will be for killing your children so I can face by abusers again, if these men are not arrested soon I will come back to your home to do just that, , [sic] kill your children because the constitution says I have a right to bare [sic] arms against an impressive government . . . .Id. at 1.
The defendant's motion for reconsideration is governed by both Rule 60(b) of the Federal Rules of Civil Procedure and Northern District of New York Local Rule 7.1(g). "Generally, the court recognizes three possible grounds upon which motions for reconsideration may be granted; they are (1) an intervening change in controlling law, (2) the availability of new evidence not previously available, or (3) the need to correct a clear error of law or prevent manifest injustice." In re C-TC 9th Ave. P'ship, 182 B.R. 1, 3 (N.D.N.Y. 1995) (McAvoy, C.J.); see also Cayuga Indian Nation of New York v. Pataki, 188 F. Supp. 2d 223, 244 (N.D.N.Y. 2002) (McCurn, S.J.) (citing Sumner v. McCall, 103 F. Supp. 2d 555, 558 (N.D.N.Y. 2000) (Kahn, J.)).
Rule 60(b) directly addresses the standard to be applied when a party seeks relief from a final judgment or order, and provides, in relevant part, that
[o]n motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons:Fed. R. Civ. P. 60(b). Local Rule 7.1(g), on the other hand, merely details a procedure to govern motions for reconsideration, without setting out an applicable standard for determining such applications. N.D.N.Y. L.R. 7.1(g). --------
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Applications for reconsideration are subject to a "clearly erroneous" standard of review, and it has been described as "a demanding standard" to satisfy. Sumner, 103 F. Supp. 2d at 558. A motion for reconsideration is not a vehicle through which a losing party may raise arguments that could have been presented earlier but for neglect, nor is it a device "'intended to give an unhappy litigant one additional chance to sway the judge.'" Brown v. City of Oneonta, N.Y., 858 F. Supp. 340, 342 (N.D.N.Y. 1994) (McAvoy, C.J.) (quoting Durkin v. Taylor, 444 F. Supp. 879, 889 (E.D. Va. 1977)). To succeed on its motion, the movant must "point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F. 3d 255, 257 (2d Cir. 1995).
Here, the court finds that defendant County has met its burden. In its letter motion, defendant County has stated that it was not previously aware of plaintiff's letter to the local newspaper in Clinton County at the time the court was considering plaintiff's motion to compel. Dkt. No. 51. This is supported by the fact that plaintiff was arrested on March 23, 2012, Dkt. No. 51, Attach. 1 at 2, and the March order was issued on March 22, 2012, Dkt. No. 50. Had the court known of plaintiff's history of making violent threats against Clinton County citizens, it would not have permitted the disclosure of the full names of physicians, nurses, mental health workers and/or all intake specialists who treated plaintiff during his incarceration at CCCF. This is especially true now, in light of plaintiff's more recent threats contained in his court submissions, Dkt. No. 80 at ¶ 4, and the fact that plaintiff is now released from prison. As a result, the court has reason to believe that providing plaintiff with the full names of Clinton County medical and mental health staff may place those persons in danger. When balancing this risk of danger against the relatively minimal relevance of the information sought, I conclude that a protective order should issue, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, precluding plaintiff from obtaining the information in issue.
Finally, the court notes that, because plaintiff did not oppose defendant County's motion, defendant County's burden with regard to its legal argument has been lightened such that, in order to succeed, it need only show the facial merit of the legal argument. See N.D.N.Y. L.R. 7.1(b)(3) ("Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein[.]"); see also, e.g., Beers v. GMC, No. 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. Mar. 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(b)(3) ); cf. Niles v. Nelson, 72 F. Supp. 2d 13, 22 (N.D.N.Y.1999) (McAvoy, C.J.) (holding that when a party does not respond to a portion of the opposing party's motion, they indicate that they consent to the granting of summary judgment with respect to that portion of the motion or have abandoned the claim); Frink Am., Inc. v. Champion Road Mach., Ltd., 48 F. Supp. 2d 198, 209 (N.D.N.Y.1999) (McAvoy, C.J.) ("Plaintiff does not address these claims in his opposition papers, leading the Court to conclude that it has abandoned them.") (collecting cases); see also Di Giovanna v. Beth Isr. Med. Ctr., 08-CV-2750, 2009 WL 2870880, at *10 n.108 (S.D.N.Y. Sept. 8, 2009) (citing cases for proposition that plaintiff's failure to respond to argument made in summary judgment motion as to why certain claim should be dismissed constitutes abandonment of claim). Defendant County has, at least, met its lightened burden with respect to its argument for reconsideration.
For all of these reasons, defendant County's motion to vacate the March order is granted.
J. The Court's Filing Injunction, Dated Dec. 3, 2012
The court sua sponte vacates its filing injunction issued on December 3, 2012, Text Order dated Dec. 3, 2012, requiring that plaintiff seek advance permission from the court before submitting any further filings because, as of that date, the court had not yet provided plaintiff notice that any future filing of frivolous or vexatious submissions with the court would result in sanctions. See Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) ("The unequivocal rule in this circuit is that the district court may not impose a filing injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to be heard."); see also Viola, 307 F. App'x at 539 (extending Moates' "unequivocal rule" to instances where a court considers imposing "leave-to-file sanctions" against litigants). However, as explained above, the plaintiff is now on notice that any future frivolous or vexatious filings will result in sanctions, which could include a bar order requiring advance permission from the court to make filings in this action, or an anti-filing injunction precluding plaintiff from bringing any further actions in this court without advance permission. IV. SUMMARY AND CONCLUSION
Addressing first defendant County's pending motion for judgment on the pleadings, I conclude that plaintiff's complaint states a claim under Title II of the ADA, but that it fails to state a claim under Title I of the ADA and for municipal liability pursuant to section 1983. In addition, I find that plaintiff is precluded from asserting a punitive damage claim against defendant County.
Turning next to the many pending motions brought by plaintiff, I find that they are all subject to denial for the reasons set forth above. Accordingly, by this decision, I deny those motions that seek non-dispositive relief, and recommend denial of all other motions.
Lastly, as it relates to defendant County's motion for reconsideration of the March order, that motion is granted based upon my finding that defendant has met its burden of proof. Therefore, I now vacate the portion of that order requiring defendant County to identify physicians, nurses, mental health workers, and intake specialists seen by the plaintiff while incarcerated at CCCF.
Based upon the foregoing it is hereby respectfully
RECOMMENDED that defendant County's motion for judgment on the pleadings (Dkt. No. 48) be GRANTED in part and DENIED in part, as follows:
(1) Plaintiff's Title II ADA claim should survive;
(2) Plaintiff's Title I ADA claim should be dismissed, with prejudice;
(3) Plaintiff's municipal liability claim, pursuant to section 1983, should be dismissed, without prejudice to plaintiff's right to file an amended complaint that corrects the pleading defects in that claim, as described in this report, within thirty days of the date of any decision and order by the district judge adopting this report and recommendation; and
(4) Plaintiff's punitive damage claim against defendant County should be dismissed with prejudice; and it is further
RECOMMENDED that plaintiff's motions for injunctive relief (Dkt. Nos. 46, 56, 60, 67, 68 and 87) be DENIED; and it is further
RECOMMENDED that plaintiff's motion for contempt and sanctions (Dkt. No. 80) be DENIED; and it is further
RECOMMENDED that plaintiff's motion for an order vacating his criminal conviction (Dkt. No. 87) be DENIED; and it is further
ORDERED that plaintiff's motions for leave to amend his complaint (Dkt. Nos. 45, 74) are DENIED, without prejudice to refiling in this action in accordance with the local rules of practice of this court; and it is further
ORDERED that plaintiff's motions for appointment of counsel (Dkt. Nos. 55, 66, 74) are DENIED; and it is further
ORDERED that plaintiff's motion for recusal (Dkt. No. 82) is DENIED; and it is further
ORDERED that plaintiff's motions to compel discovery (Dkt. Nos. 59, 64, 77, 78, 81, 85) are DENIED; and it is further
ORDERED that defendant County's motion for reconsideration (Dkt. No. 62) is GRANTED; and it is further
ORDERED that the portion of the March order (Dkt. No. 50) ordering defendant County to identify physicians, nurses, mental health workers, and intake specialits seen by plaintiff while incarcerated at CCCF is VACATED, and an protective order is hereby entered precluding plaintiff from obtaining this requested information; and it is further
ORDERED that the stay of discovery and motion filing deadlines previously imposed by the court is hereby LIFTED, and those deadlines are reset, as follows:
| Task | Date |
| Discovery Deadline | March 31, 2013 |
| Motion Filing Deadline | May 31, 2013 |
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: December 28, 2012
Syracuse, New York