Opinion
11-CV-6251CJS.
August 11, 2011
DECISION AND ORDER
Siragusa, J. Plaintiff, pro se, Carlos Abreu, incarcerated at Five Points Correctional Facility, brought an action in this Court raising a number of allegations under 42 U.S.C. § 1983, the Americans with Disabilities Act, the Rehabilitation Act, the Religious Land Use and Institutionalized Persons Act and the Administrative Procedures Act. Plaintiff was directed address certain infirmities, and his motions for injunctive relief relating to medical care and certain other matters were deferred pending his response to the Court Order (Doc. No. 5). Plaintiff responded to the Court Order indicating that he is pursuing a challenge to certain disciplinary sanctions in state court, and asking that the claims that may not proceed in an action pursuant to § 1983 until overturned be dismissed without prejudice (Doc. No. 6). Plaintiff declined to otherwise amend his complaint.
Plaintiff thereafter filed another motion for a temporary restraining order and preliminary injunction addressing his having been sentenced in sequential disciplinary sanctions to periods of the "loaf" diet amounting to an entire month (Doc. No. 8). Plaintiff alleged that he had previously been removed from such diet on the basis of his medical condition and the serious effect such diet has on his health. Plaintiff alleges that the imposition of the "loaf" diet, and the manner in which it is being imposed, presents a serious risk to his health and violates the Eighth Amendment proscription on cruel and unusual punishment. The Court notes that Plaintiff signed that motion and supporting papers dated July 20, 2011, but the envelope in which it was mailed indicates that it was not mailed from the facility until August 2, 2011.
Given the serious nature of the allegations set out in Plaintiff's papers, the Court hereby directs Defendants to respond to this motion by ten days from entry of this Order. Defendants are directed to be prepared to address Plaintiff's medical condition and his medical care. Notice of this motion and Order and service of the complaint, which has not yet been served on any defendant, may be made on Superintendent John Lempke, Deputy Superintendent John Colvin and Doctor Daniel Weinstock by certified mail, return receipt requested. A hearing on this matter will be held on September 6, 2011, at 4 p.m.
The Court notes that it is awaiting communication from the Department of Correctional Services on alternate service methods, given the large number of DOCS defendants named in the complaint.
Further, Plaintiff's request for appointment of counsel is granted. The Court hereby appoints Richard A. McGuirk, Esq., Wendell W. Harris, Esq., Andrew P. Zappia, Esq. and Michael J. Crosnicker, Esq., all of LeClairRyan, 290 Linden Oaks, Suite 310, Rochester, NY 14625, pro bono, to faithfully and diligently represent plaintiff in this case. Reply papers by plaintiff's counsel, if any, must be filed within 10 days after the filing of Defendants' papers
The Clerk of the Court is directed to copy that portion of the file in this matter that is not currently available through PACER on the Court's Case Management/Electronic Case Management System and send it to Richard A. McGuirk, Esq., together with a copy of this Order and the Guidelines Governing Reimbursement from the District Court Fund of Expenses Incurred by Court Appointed Counsel. The Chief Judge of the Court will also issue an Order directing PACER to waive its fees so pro bono counsel can access and print at no cost to them or their firm any other documents filed herein that he may need.
This information and the forms are also available on the Court's web site at the Attorney Information link from the home page located at: http://www.nywd.uscourts.gov/document/fundreimbvoweb.pdf.
The Clerk of Court is directed to serve a copy of the complaint, this motion and this Order on the above three named defendants in the manner described above forthwith. A courtesy copy of the motion and this Order shall be mailed to William A. Gonzalez, Esq., Deputy Counsel for the Department of Corrections, and Debra Martin, Esq., Assistant Attorney General In Charge of the Rochester Office.
SO ORDERED.
Dated: August 10, 2011
Rochester, New York