Klos v. Haskell, No. 92-CV-6135.

• Decision Date: 17 September 1993
• Docket Number: No. 92-CV-6135.
• Citation: 835 F. Supp. 710
• Parties: Thomas John KLOS, Plaintiff, v. Thomas HASKELL, Superintendent, Cheryl Clark, Director of Shock Development, Philip Coombe, Jr., First Deputy Commissioner, and Thomas Coughlin, Defendants.
• Court: U.S. District Court — Western District of New York

835 F. Supp. 710

Thomas John KLOS, Plaintiff, v. Thomas HASKELL, Superintendent, Cheryl Clark, Director of Shock Development, Philip Coombe, Jr., First Deputy Commissioner, and Thomas Coughlin, Defendants.

No. 92-CV-6135.

United States District Court, W.D. New York.

September 17, 1993.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas John Klos, pro se.

Charles D. Steinman, Asst. Atty. Gen., Rochester, NY, for defendants.

ORDER

TELESCA, Chief Judge.

Plaintiff, proceeding pro se, commenced this action March 16, 1992, pursuant to 42 U.S.C. § 1983, alleging that his civil rights were violated when he was transferred from Monterey Shock Incarceration Facility ("Monterey") to Elmira Correctional Facility ("Elmira"). In orders filed November 3, 1992 and March 18, 1993, the case was referred to United States Magistrate Judge Kenneth R. Fisher, pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). In a decision and order and report and recommendation filed May 11, 1993, Magistrate Judge Fisher disposed of nine pending motions. He (i) denied plaintiff's motion for the appointment of counsel, (ii) denied plaintiff's motion to amend his complaint, (iii) denied plaintiff's motion for injunctive relief, (iv) denied both plaintiff's and defendants' discovery motions, (v) recommended that plaintiff's cross-motion for partial summary judgment be denied, and (vi) recommended that defendants' motion for summary judgment be granted and the complaint accordingly dismissed.

Plaintiff requested, and was granted, two extensions of time in which to file objections to Magistrate Judge Fisher's determinations. On July 29, 1993, he filed objections to (i) the denial of his motions (1) for the assignment of counsel, (2) to compel discovery, and (3) for partial summary judgment and (ii) the granting of defendants' motion for summary judgment.

Upon a de novo review of the issues raised in plaintiff's objections, and essentially for the reasons stated in Magistrate Judge Fisher's thorough and well-reasoned decision and order and report and recommendation, I affirm the denial of plaintiff's motions for the assignment of counsel and to compel discovery, and I adopt his recommendation that defendants' motion for summary judgment be granted and plaintiff's cross-motion for partial summary judgment be denied.

In agreeing with Magistrate Judge Fisher's conclusion that plaintiff's removal from the shock camp program triggered no due process right on his part, I rely not only on the law cited by him in the report and recommendation but also on the fact that plaintiff's removal from the program was premised, not on his behavior in the course of the program, but on the circumstances of both the crimes he was charged with committing and those for which he was sentenced. Under any reading of the state regulation concerning removal from shock incarceration programs¹, whether the narrow reading advanced by defendants and adopted by Magistrate Judge Fisher, or the more expansive interpretation advanced by plaintiff, a right to a hearing on such removal is required only when removal is premised on a prisoner's conduct in the shock program. In this case, in removing plaintiff from the program, Commissioner Coughlin relied upon information contained in the letter of the district attorney who had prosecuted plaintiff in state court. His removal of plaintiff, in effect, constituted his reconsideration of plaintiff's prior admission to the program, based upon information not previously supplied either to him or to the committee which Commissioner Coughlin had designated to consider applications to the shock program. Neither the federal constitution nor applicable state regulation mandates a hearing prior to such removal.

Insofar as plaintiff's reply papers seek to raise the separate issue of the constitutionality of his transfer to the Correctional Facility at Elmira, rather than a return to the facility at which he was incarcerated prior to his admission to the shock camp, such transfer provides no basis for a § 1983 claim. See Montanye v. Haymes, 427 U.S. 236, 241-45, 96 S.Ct. 2543, 2547-48, 49 L.Ed.2d 466 (1976); N.Y.Comp.Codes R. & Regs. tit. 7, § 100.35.

WHEREFORE, the decision and order and report and recommendation of Magistrate Judge Fisher, filed May 11, 1993, is affirmed and adopted in its entirety; defendants' motion for summary judgment is granted; plaintiff's motions for partial summary judgment and for various other relief are denied; and this case is dismissed.

SO ORDERED.

REPORT and RECOMMENDATION DECISION and ORDER

FISHER, United States Magistrate Judge.

I. Background

Plaintiff, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights when he was transferred from Monterey Shock Incarceration Facility ("Monterey") to Elmira Correctional Facility ("Elmira") on April 4, 1991. He seeks injunctive, declaratory and compensatory relief.

Currently, there are nine motions pending before this court. Plaintiff filed three motions to compel defendants to respond to his interrogatories, on October 29, 1992, December 24, 1992 and March 2, 1993, respectively. In opposition to plaintiff's second motion to compel, defendants filed a motion for a protective order, pursuant to Fed.R.Civ.P. 26(c). Plaintiff's third motion to compel also contains a request for appointment of counsel. Defense counsel also filed a letter dated March 1, 1993, in opposition to plaintiff's third motion to compel, while taking no position on plaintiff's request for appointment of counsel. These matters were referred to me by Chief Judge Michael A. Telesca, by order dated November 3, 1992, pursuant to 28 U.S.C. § 636(b)(1)(A).

Also pending before this court is defendants' motion for summary judgment, filed October 29, 1992. Plaintiff filed a cross-motion for partial summary judgment in opposition to defendants' motion for summary judgment and a motion requesting leave to file a supplemental complaint. Plaintiff also has a motion for injunctive relief pending, which was filed on July 31, 1992. Chief Judge Telesca referred these remaining matters to me by order dated March 18, 1993, pursuant to 28 U.S.C. § 636(b)(1)(B).

The following constitutes my decision and order that plaintiff's motion for appointment of counsel be denied. Plaintiff's three motions to compel and defendants' motion for a protective order are denied, and dismissed as moot. It is also my report and recommendation that defendants' motion for summary judgment be granted and that plaintiff's motions for injunctive relief, to supplement his complaint, and for summary judgment be denied.

II. Discussion

A. Motion for Assignment of Counsel¹

Under 28 U.S.C. § 1915(d), the Court may appoint counsel to assist indigent litigants. Sears, Roebuck and Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir.1988). It is clear that assignment of counsel in this matter is within the Court's discretion. See In re Martin-Trigona, 737 F.2d 1254 (2d Cir.1984). The factors to be considered in deciding whether or not to assign counsel are set forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d 58 (2d Cir.1986) and Cooper v. A. Sargenti Co., 877 F.2d 170 (2d Cir.1989). However, the Court should exercise its discretion to appoint counsel in cases where the plaintiff has made "a threshold showing of some likelihood of merit." Id. 877 F.2d at 174.

Plaintiff's previous application for appointment of counsel was denied by Chief Judge Telesca, by order dated July 21, 1992. On the basis of the foregoing, I find that assignment of counsel is not warranted in this case at this time. It is plaintiff's responsibility, therefore, to retain his own attorney or to press forward with his lawsuit pro se. 28 U.S.C. § 1654.

B. Motion to Supplement Complaint²

Plaintiff seeks to supplement his complaint with new claims relating to events that occurred in April and May of 1992, at correctional facilities other than those named in his complaint. He does not name any new defendants. As previously stated, in his original complaint, plaintiff alleged that he was unlawfully transferred from Monterey to Elmira. In his proposed supplemental complaint, plaintiff sets forth a series of incidents which allegedly occurred in retaliation for his prosecution of this § 1983 action. First, he claims that he was unlawfully transferred from Walkill Correctional Facility ("Walkill") to Washington Correctional Facility ("Washington") in violation of a DOCS policy which ordinarily does not permit transfers of inmates enrolled in college prison programs. He also contends that his mail was interfered with and that some of his legal and personal property was damaged or missing after the transfer.

It is clear that plaintiff is not seeking to replace his original claim with his proposed amendments.³ Rather, he seeks to "supplement" the original complaint with new claims against the original defendants. "A supplemental pleading is designed to cover matters that occur subsequent to the filing of the complaint, but pertain to the original pleadings." Albrecht v. Long Island Railroad, 134 F.R.D. 40, 41 (E.D.N.Y.1991). The court may, pursuant to Fed.R.Civ.P. 15(d), permit a party, upon motion, "to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Id. And because the plaintiff proceeds pro se, the court is "to construe such complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than it would in reviewing a pleading submitted by counsel." Platsky v. CIA, 953 F.2d 26, 28 (2d Cir.1991).

Pursuant to Rule 15(d), supplemental "relief may include the addition of new defendants and new claims, if adequately related to the originally stated claims." McLean v. Scully, 1991 WL 274327, at *1 (S.D.N.Y. December 9,...