Waters v. Jacobsen

• Decision Date: 08 August 2018
• Docket Number: 9:18-CV-0196 (MAD/DEP)
• Parties: KEITH WATERS, Plaintiff, v. CATHERINE JACOBSEN, et. al., Defendants.
• Court: U.S. District Court — Northern District of New York

KEITH WATERS, Plaintiff, v. CATHERINE JACOBSEN, et. al., Defendants.

9:18-CV-0196 (MAD/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 8, 2018

APPEARANCES:

KEITH WATERS

Plaintiff, pro se

3527 Nostrand Ave

#5E

Brooklyn, NY 11229

HON. BARBARA D. UNDERWOOD

Acting New York State Attorney General

The Capitol

Albany, NY 12224

JOHN F. MOORE, ESQ.

Assistant Attorney General

MAE A. D'AGOSTINO United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Pro se plaintiff Keith Waters ("Plaintiff"), a parolee, commenced this civil rights action asserting claims arising out of his confinement in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") at Walkill Correctional Facility ("Walkill C.F."). Dkt. No. 1 ("Compl."). In a Decision and Order filed on March20, 2018 (the "March Order"), the Court reviewed the sufficiency of the Complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. Dkt. No. 7. On the basis of that review, some claims were dismissed and Plaintiff was afforded the opportunity to submit an amended pleading. See Dkt. No. 7, generally. On April 5, 2018, Plaintiff filed an Amended Complaint. Dkt. No. 10 ("Am. Compl."). In a Decision and Order filed on April 23, 2018 (the "April Order"), the Court reviewed the sufficiency of the Amended Complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. See Dkt. No. 11. Based upon that review, the Court directed defendants to respond to the following claims: (1) Fourth Amendment claims against Superintendent Catherine Jacobsen ("Jacobsen") and Lieutenant W. Purdy ("Purdy"); (2) First Amendment claims against Jacobsen and Purdy for violations of Plaintiff's right to free speech; (3) First Amendment retaliation claims against Purdy, Lieutenant Huckeba ("Huckeba"), Deputy Superintendent G. Niles ("Niles"), and Christopher M. Wlodkowski ("Wlodkowski") related to misbehavior reports and disciplinary proceedings/determinations; (4) First Amendment retaliation claims against Jacobsen; and (5) claims for injunctive and declaratory relief against Commissioner Anthony Annucci ("Annucci") in his official capacity. See id. The following claims were dismissed for failure to state a claim: (1) Fourteenth Amendment Due Process claims related to Plaintiff's property against Purdy and Jacobsen; (2) Fourteenth Amendment Due Process claims related to disciplinary hearings; (3) Fourteenth Amendment equal protection claims; (4) constitutional claims based upon the submission of fraudulent documents; (5) First Amendment claims based upon freedom of association; (6) retaliation claims against Captain J. Neuwirth ("Neuwirth"); (7) First Amendment access to court claims; (8) First Amendment mail interference claims; (9) conspiracy claims; (10) supervisory claims against Annucci, in his individual capacity; and (11) state law claims. See id.

On July 9, 2018, defendants Annucci, Huckeba, Jacobsen, Purdy, and Wlodkowski filed an Answer. Dkt. No. 25.

Presently before the Court are Plaintiff's motions for the following relief: (1) leave to file a second amended complaint; (2) a preliminary injunction; (3) appointment of counsel; and (4) a Valentin Order. Dkt. No. 21. Defendants oppose the motion to amend and the motion for injunctive relief. Dkt. No. 22.

II. MOTION TO AMEND

A. Legal Standard

The filing of amended and supplemental pleadings is governed by Rule 15 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 15. Rule 15(a) states that leave to amend shall be freely given "when justice so requires." See Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993). The Supreme Court has stated:

In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. - the leave sought should . . . be "freely given."

Foman, 371 U.S. at 182. An amendment or supplementation of a pleading is considered a "futile" act when the proposed claim would not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). The decision to grant or deny a motion to amend or supplement is committed to the sound discretion of the trial court, and the court's decision is not subject to review on appeal except for abuse of discretion. See Fielding v. Tollaksen, 510 F.3d 175, 179 (2d Cir. 2007).

In the case of proposed amendments where new defendants are to be added, the Court must also look to Rules 20 and 21. Ward v. LeClaire, No. 07-CV-0026 (LEK/RFT), 2008 WL 182206, at *3 (N.D.N.Y. Sept. 26, 2007) (citing United States v. Chilstead Bldg. Co., No. 96-CV-0641 (N.D.N.Y. Nov. 7, 1997) (McAvoy, C.J.)). Rule 21 states that a party may be added to an action "at any time [and] on just terms." Fed. R. Civ. P. 21. Rule 21 is "intended to permit the bringing in of a person, who through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable." Goston v. Potter, No. 9:08-CV-0478 (FJS/ATB), 2010 WL 4774238, at *5 (N.D.N.Y. Sept. 21, 2010) (quoting United States v. Commercial Bank of N. Am., 31 F.R.D. 133, 135 (S.D.N.Y. 1962) (internal quotations marks omitted)).¹ Rule 20(a)(2) is liberally construed "so as to promote judicial economy and to allow related claims to be tried within a single proceeding." Equal Emp't Opportunity Comm'n v. Nichols Gas & Oil, Inc., 518 F. Supp. 2d 505, 508-09 (W.D.N.Y. 2007) (citing, inter alia, Barr Rubber Prods. Co. v. Sun Rubber Co., 425 F.2d 1114, 1127 (2d Cir. 1970)).

B. Plaintiff's Motion and Defendants' Opposition

Plaintiff submitted a proposed Second Amended Complaint, with exhibits, in support of his motion to amend. Dkt. Nos. 21-3, 21-4, and 21-5. In July 2018, Plaintiff was released on parole. Dkt. No. 21-3 at 30. As a condition of his parole, Plaintiff is prohibited from contacting or communicating with his spouse and children. Id. at 28-30. In the proposedamended pleading, Plaintiff restates previously dismissed claims related to his confinement at Walkill C.F. Id. at 7-29. Plaintiff also asserts new constitutional claims related to the special conditions of Plaintiff's parole against Annucci, Jacobson, and new defendants, Board of Parole/Community Supervision ("Board of Parole") and Walkill C.F. Offender Rehabilitation Coordinator ("ORC") Shannon Levandoski ("Levandoski"). Dkt. Nos. 21-3 at 2, 5, 25-38 and 21-4, generally. Plaintiff contends that the aforementioned defendants acted in an arbitrary and capricious manner when they imposed special parole conditions that are unrelated to Plaintiff's underlying conviction. Id. Plaintiff also claims that Levandoski imposed the conditions in retaliation for Plaintiff's grievances and complaints against Wlodkowski. Dkt. No. 21-3 at 31.

Defendants argue that the proposed amended pleading is unrelated to the claims in the underlying Amended Complaint. Dkt. No. 22 at 8-11. Defendants also claim that the amendments will result in "juror confusion" and prejudice. See id. at 11-12.

C. Discussion

On July 11, 2018, the Court issued a Mandatory Pretrial Discovery and Scheduling Order. Dkt. No. 28. Pursuant to the Order, Plaintiff may move to amend the pleadings on or before November 12, 2018. Id. With respect to the amendments, it does not appear to this Court that Plaintiff has delayed unduly in bringing his motion, the requested amendments do not significantly change the theory of the case, and the Court is not persuaded that resolution of this matter will be significantly delayed by the filing of the amended pleading. The newfacts alleged involve original defendants and occurred while Plaintiff was confined at Walkill C. F. The Court has thoroughly reviewed the proposed pleading and finds that the claims asserted are sufficiently related to the original claims, defendants, and the Amended Complaint. See Keith v. Volpe, 858 F.2d 267, 474 (9^th Cir. 1988) (holding that "[w]hile some relationship must exist between the newly alleged matters and the subject of the original action, they need not all arise out of the same transaction."). With that in mind, the Court will review the proposed Second Amended Complaint thoroughly, with due regard for his status as a pro se litigant, to determine sufficiency of the additional claims set forth in that pleading.²

D. Summary of Second Amended Complaint³

Upon review, the Court finds that the facts and claims against the original defendants are nearly identical to the allegations set forth in the Amended Complaint. Compare Am. Compl. with Prop. Sec. Am. Compl. The new facts pertain to the conditions of Plaintiff's parole. See Dkt. No. 21-3 at 28-35.

While in DOCCS' custody for twelve years, Plaintiff maintained frequent contact withhis family members, including his children and his spouse. Dkt. No. 21-3 at 28. Plaintiff's contact with his family was never subjected to any court orders of protection or limited in any manner by the policy or procedures outlined in DOCCS Directives 4403⁴, 4422, or 4423⁵. Id. Additionally, DOCCS did not receive any request from Plaintiff's spouse or his children to limit communication.⁶ Id.

In March 2018, Plaintiff met with ORC Levandoski, in her office at Walkill C.F., to review his institutional record. Dkt. No. 21-3 at 31. Because Plaintiff's release date was forthcoming, Plaintiff and Levandoski discussed his COMPAS Risk Assessment⁷ and the community preparation process. Id. At that time, they did not discuss the possible conditions of Plaintiff's parole. Id. As Plaintiff exited Levandoski's office, he noticed Wlodkowski, another defendant in this action, near the office. Id. Plaintiff overheard Levandoski speaking with Wlodkowski, in...