Thompson v. New York State Corrections and Community Supervision

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

GARNELL THOMPSON,

Plaintiff, Civil Action No.

9:22-CV-0289

v. (TJM/CFH)

NEW YORK STATE CORRECTIONS AND

COMMUNITY SUPERVISION, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

GARNELL THOMPSON

06-A-0191

Plaintiff, pro se

Wende Correctional Facility

P.O. Box 1187

Alden, NY 14004

THOMAS J. McAVOY

Senior United States District Judge

DECISION AND ORDER

I. INTRODUCTION

On or about March 25, 2022, pro se plaintiff Garnell Thompson ("plaintiff"), an inmate

currently in the custody of the New York State Department of Corrections and Community

Supervision ("DOCCS"), commenced this action with the filing of a complaint, Dkt. No. 1

("Compl."), accompanied by an application to proceed in the action in forma pauperis ("IFP"),

Dkt. No. 2. At that time, plaintiff also filed a motion for a preliminary injunction and a motion

for the appointment of pro bono counsel. Dkt. No. 4 ("Motion for Injunction"); Dkt. No. 5

("Counsel Motion"). Because the IFP application was incomplete, the Court issued an Order

on March 30, 2022, closing the action and advising plaintiff that, if he wished to pursue this

action, he must either pay the full filing fee required for commencing an action in this District

or submit a new, complete IFP application. Dkt. No. 6. On or about April 11, 2022, plaintiff

filed a second IFP application, and the action was reopened on the same date. Dkt. Nos. 7-

8. The Clerk has now forwarded plaintiff's second IFP application, complaint, Motion for

Injunction, and Counsel Motion for the Court's review.

II. IFP APPLICATION

Section 1915 of Title 28 of the United States Code ("Section 1915") "permits an

indigent litigant to commence an action in a federal court without prepayment of the filing fee

that would ordinarily be charged."1 Cash v. Bernstein, No. 09-CV-1922, 2010 WL 5185047,

at *1 (S.D.N.Y. Oct. 26, 2010). "Although an indigent, incarcerated individual need not

prepay the filing fee at the time . . . of filing, he must subsequently pay the fee, to the extent

he is able to do so, through periodic withdrawals from his inmate accounts." Cash, 2010 WL

5185047, at *1 (citing 28 U.S.C. § 1915(b); Harris v. City of New York, 607 F.3d 18, 21 (2d

Cir. 2010)).

Upon review, the Court finds that plaintiff has submitted a completed and signed IFP

application, Dkt. No. 7, that demonstrates economic need. See 28 U.S.C. § 1915(a)(2).

1 Section 1915(g) prohibits a prisoner from proceeding IFP where, absent a showing of "imminent danger of

serious physical injury," a prisoner has filed three or more actions that were subsequently dismissed as

frivolous, malicious, or failing to state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). The

Court has reviewed plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic

Records ("PACER") Service. PACER Case Locator,

https://pcl.uscourts.gov/pcl/pages/search/findPartyAdvanced.jsf (last visited June 10, 2022). Based on that

review, it does not appear that plaintiff had acquired three strikes for purposes of Section 1915(g) as of the date

this action was commenced.

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Plaintiff has also filed the inmate authorization form required in this District. Dkt. No. 3.

Accordingly, plaintiff's second IFP application is granted.

III. PLAINTIFF'S COMPLAINT

A. Legal Standard Governing the Court's Sua Sponte Initial Review of

Plaintiff's Complaint

Section 1915(e) directs that, when a plaintiff seeks to proceed IFP, "the court shall

dismiss the case at any time if the court determines that. . . the action . . . (i) is frivolous or

malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary

relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).2

Thus, even if a plaintiff satisfies the financial criteria to commence an action IFP, it is the

Court's responsibility to determine whether the plaintiff may properly maintain the complaint

that he filed in this District before the Court may permit him to proceed with the action IFP.

See id.

Likewise, under 28 U.S.C. § 1915A ("Section 1915A"), a court must review any

"complaint in a civil action in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity" and must "identify cognizable claims or dismiss

the complaint, or any portion of the complaint, if the complaint. . . is frivolous, malicious, or

fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a

defendant who is immune from such relief." 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171

F.3d 115, 116 (2d Cir. 1999) (per curiam) (holding that Section 1915A applies "to all civil

complaints brought by prisoners against governmental officials or entities regardless of

whether the prisoner has paid the filing fee"); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir.

2 A complaint is frivolous for purposes of Section 1915 when it "lacks an arguable basis in either law or fact."

Neitzke v. Williams, 490 U.S. 319, 325 (1989).

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2007) (finding that both Sections 1915(e)(2)(B) and 1915A provide a basis for screening

prisoner's complaints).

In reviewing a pro se litigant's complaint, the court has a duty to liberally construe the

pleadings, see Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should

exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before

the adverse party has been served and both parties (but particularly the plaintiff) have had an

opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983). Therefore, a

court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to

relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged."

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Although the

Court should construe the factual allegations in the light most favorable to the plaintiff, "the

tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged–but it has not 'show[n]'–'that the pleader is entitled

to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Rule 8 of the Federal Rules of Civil

Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation." Id. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only

"tenders naked assertions devoid of further factual enhancement" will not suffice. Id. (internal

quotation marks and alterations omitted).

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B. Summary of the Complaint

Although plaintiff is now confined elsewhere, at all times relevant to the claims in this

action, plaintiff was confined in Clinton Correctional Facility ("Clinton C.F."), a prison operated

by DOCCS. The following facts are as alleged in the complaint.

On February 24, 2020, plaintiff underwent "retinal surgery" in his right eye by Dr.

Jonathan Huz, an ophthalmologist employed with Retina Consultants, PLLC. Compl. at 5, 18

(Exhibit A). The next day, Dr. Huz faxed a letter to Clinton C.F. describing the post-operative

care plaintiff required. Id. at 18 (Exhibit A). Dr. Huz also sent a letter directly to plaintiff that

"stress[ed] the importance of following up for post-operative care" and warning plaintiff that

the risks of failing comply with the instructions included "irreversible retinal damage, loss of

eye, or loss of vision." Id. at 20 (Exhibit C). Plaintiff alleges that defendants DOCCS,

Director of Clinton C.F. Facility Health Services John Doe, Clinton C.F. Nurse Administrator

Mathew Rushford, and Clinton C.F. Nurse Practitioner Susan Devlin-Varin all received and

read the letters from Dr. Huz and failed to provide plaintiff with the required post-operative

medical care. Id. at 5-9. As a result of the failure to provide this care, plaintiff lost his vision

in his right eye in March 2020. Id. at 7. Subsequently, in August 2020, plaintiff's symptoms

required emergency medical treatment from outside medical facilities. Id. at 14. Plaintiff was

notified some time in 2020 "that he may have to have his right eye removed." Id. at 15.

Plaintiff requested disability accommodations at Clinton C.F. once he lost his vision.

See, e.g., Compl. at 8-10, 13, 22 (Exhibit E). Defendant Devlin-Varin interfered with plaintiff's

application for reasonable accommodations by refusing to indicate on the application that

plaintiff was legally blind. Id. at 9, 22 (Exhibit E). Although defendant Devlin-Varin indicated

on plaintiff's application that a "Follow-Up Appointment [Is] Necessary" and that such

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appointment would occur "approx. 5/2020," defendant Devlin-Varin never scheduled plaintiff

for that follow-up appointment. Id. at 9, 13, 22 (Exhibit E). On March 13, 2020, defendant

Clinton C.F. Deputy Superintendent of Programs Mariejose King denied plaintiff's application

for reasonable accommodations after meeting with him. Id. at 10, 12, 22 (Exhibit E). Plaintiff

was denied access to certain prison services and programs "due to him not being able to see

properly and not being able to walk properly." Id. at 15.

In May 2020, "plaintiff[,] who could not see properly and was denied mobility

instructor[,] fell down concrete steps after exiting mess hall inside Clinton [C.F.] dislocating

his right shoulder, injuring his back, knees, and suffered from extreme pain." Compl. at 13.

Plaintiff did not report his injuries to prison staff. Id.

Defendant Clinton C.F. RN Senior Utilization Review Nurse Mary Bernadette Sheehan

learned from plaintiff's medical providers that plaintiff has sensorial disabilities prior to

plaintiff's transfer to outside medical facilities. Compl. at 10-11. The medical providers

further told defendant Sheehan that any transfer should be conducted "by correction officers

who were trained on how to ambulate inmate[s] with sensorial disabilities in vehicles

designed to accommodate inmate[s] with sensorial disabilities." Id. at 10. Defendant

Sheehan ignored this advice, and, as a result, plaintiff suffered injuries during the transport.

Id. at 11. Defendant Varin learned of plaintiff's injuries suffered during the transport and

refused to file plaintiff's letter complaining of the circumstances in his medical file. Id.

Plaintiff was transferred to Elmira Correctional Facility on or about August 13, 2020,

and in December 2020, plaintiff was granted the reasonable accommodations he originally

requested at Clinton C.F. Compl. at 14.

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In addition to the defendants identified above, the complaint names the Central Office

Review Committee ("CORC") as a defendant. Compl. at 1-2, 5-6. Liberally construed,

plaintiff's complaint asserts (1) Eighth Amendment deliberate medical indifference claims

against defendants DOCCS, CORC, Doe, Rushford, and Devlin-Varin; (2) Eighth Amendment

failure to protect claims against defendants Sheehan and Devlin-Varin; (3) Americans with

Disabilities Act ("ADA") and Rehabilitation Act claims against defendants DOCCS, King, and

Devlin-Varin. See id. at 4. Plaintiff seeks monetary damages as relief. Id. at 16.

C. Analysis

1. Claims Arising Under 42 U.S.C. § 1983

Plaintiff's Eighth Amendment claims are brought pursuant to 42 U.S.C. § 1983

("Section 1983"), which establishes a cause of action for "the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws" of the United States. 42

U.S.C. § 1983. "Section 1983 itself creates no substantive rights[ but] provides . . . only a

procedure for redress for the deprivation of rights established elsewhere." Sykes v. James,

13 F.3d 515, 519 (2d Cir. 1993).

a. DOCCS and CORC

The Eleventh Amendment has long been construed as barring a citizen from bringing

a suit against his own state in federal court, under the fundamental principle of "sovereign

immunity." U.S. CONST. amend. XI ("The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.");

see also Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Cory v. White, 457 U.S. 85, 90-91

(1982); Gollomp v. Spitzer, 568 F.3d 355, 365-66 (2d Cir. 2009). Eleventh Amendment

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immunity is lost only if Congress unequivocally abrogates states' immunity or a state

expressly consents to suit. Gollomp, 568 F.3d at 365-66. It is well-settled that Congress did

not abrogate states' immunity through Section 1983. Quern v. Jordan, 440 U.S. 332, 343-45

(1979). State immunity extends to state agencies. See Puerto Rico Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 142-47 (1993); McGinty v. N.Y., 251 F.3d 84, 95 (2d

Cir. 2001) ("The Eleventh Amendment extends immunity not only to a state, but also to

entities considered 'arms of the state.'"). Because it is well established that DOCCS is a New

York State agency immune from suit under Section 1983, see, e.g., Ala. v. Pugh, 438 U.S.

781, 782 (1978); Santiago v. New York State Dep't of Corr. Servs., 945 F.2d 25, 28 n.1 (2d

Cir. 1991), plaintiff's Section 1983 claims asserted against that entity are dismissed pursuant

to Sections 1915(e)(2)(B)(iii) and 1915A(b)(2).

Similarly, CORC is a committee within DOCCS. Robinson v. New York State Dep't of

Corr. Servs., No. 08-CV-0911, 2009 WL 3246818, at *9 n.14 (N.D.N.Y. Sept. 30, 2009).

Because it is not a person amenable to suit for purposes of Section 1983 claims, see, e.g.,

Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) ("To prevail on a claim under [Section] 1983, a

plaintiff must allege (1) that some person has deprived him of a federal right, and (2) that the

person who has deprived him of that right acted under color of state law." (internal quotation

marks and alteration omitted)), plaintiff's Section 1983 claims against defendant CORC are

dismissed for failure to state a claim upon which relief may be granted pursuant to Sections

1915(e)(2)(B)(ii) and 1915A(b)(1).

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b. Eighth Amendment Deliberate Medical Indifference Claims Asserted

Against Defendants Doe, Rushford, and Devlin-Varin

The complaint alleges that defendants Doe, Rushford, and Devlin-Varin all received

the letters Dr. Huz's letters that provided post-operative care instructions and listed the risks

to plaintiff's health of failing to comply with the instructions. Compl. at 6-9. None of those

defendants provided plaintiff with the necessary follow-up care. Id.

The Eighth Amendment to the United States Constitution mandates that prison officials

provide adequate medical care to inmates. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.

2011). "An Eighth Amendment claim arising out of inadequate medical care requires a

demonstration of deliberate indifference to a prisoner's serious medical needs." Hill, 657

F.3d at 122 (internal quotation marks omitted). A deliberate medical indifference claim has

objective and subjective components. Hill, 657 F.3d at 122. "Objectively, the alleged

deprivation must be sufficiently serious, in the sense that a condition of urgency, one that

may produce death, degeneration, or extreme pain exists." Hathaway v. Coughlin, 99 F.3d

550, 553 (2d Cir. 1996) (internal quotation marks omitted). As to the subjective element, an

official acts with deliberate indifference when he knows of and disregards an excessive risk to

inmate health or safety. Hill, 657 F.3d at 122 (citing Farmer v. Brennan, 511 U.S. 825, 837

(1994)).

Mindful of the obligation to liberally construe a pro se litigant's pleadings, see, e.g.,

Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court will require

defendants Rushford, Devlin-Varin, and John Doe to respond to the complaint with respect to

the Eighth Amendment deliberate medical indifference claims asserted against them. In so

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ruling, the Court expresses no opinion as to whether any of those claims can withstand a

properly filed dispositive motion.

Because some of plaintiff's deliberate medical indifference claims are asserted against

Clinton C.F. Director of Facility Health Services John Doe, whose name is not known to

plaintiff, service of process cannot be effected on him unless and until he has been identified

by name. If plaintiff wishes to pursue his claims against defendant John Doe, he must take

reasonable steps to ascertain through discovery the identity of that individual.3 Upon learning

the identity of the unnamed defendant, plaintiff must amend the operative complaint to

properly name that individual as a party. If plaintiff fails to ascertain the identity of the John

Doe defendant so as to permit timely service of process, all claims against him will be

dismissed.4

c. Eighth Amendment Failure to Protect Claims Asserted Against

Defendants Sheehan and Devlin-Varin

The complaint alleges that defendant Sheehan learned from plaintiff's medical provider

that plaintiff "had sensorial disabilities and suffered from virtigo [sic] dizziness that required he

be transported to outside medical appointments and if transferred to different correctional

facility[,] by correction officers who were trained on how to ambulate inmate with sensorial

disabilities in [a] vehicle designed to accommodate inmate with sensorial disabilities." Compl.

at 10. Defendant Sheehan allegedly ignored the medical provider's guidance, and plaintiff

was thereafter transferred to medical facilities in a non-compliant van and suffered injuries.

3 As discussed elsewhere in this Decision and Order, some of plaintiff's other causes of action asserted against

specifically identified individuals also survive initial review. Those identified defendants are requested to

respond to reasonable discovery demands from plaintiff that are aimed at identifying the John Doe defendant.

4 Rule 4 of the Federal Rules of Civil Procedure require that a party be served within 90 days of the issuance of

the summons, absent a court order extending that period. Fed. R. Civ. P. 4(m). The Court's local rules shorten

the time for service from 90 days to Rule 4(m) to 60 days. N.D.N.Y. L.R. 4.1(b).

10

Id. at 10-11. Afterwards, plaintiff notified defendant Devlin-Varin of his injuries, and

defendant Devlin-Varin refused to include his letter describing the circumstances of his

transport in his medical file for future reference. Id. at 11.

"The Eighth Amendment requires prison officials to 'take reasonable measures to

guarantee the safety of the inmates.'" Morgan v. Dzurenda, 956 F.3d 84, 89 (2d Cir. 2020)

(quoting Farmer, 511 U.S. at 832); Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994)

("[A]ll law enforcement officials have an affirmative duty to intervene to protect the

constitutional rights of citizens from infringement by other law enforcement officers in their

presence."). Prison officials may be held liable under Section 1983 for failing to protect an

inmate from conditions posing a substantial risk of serious harm. See Farmer, 511 U.S. at

836. To establish a "failure to protect" claim, the plaintiff must show that he was incarcerated

under conditions posing a substantial risk of serious harm, and that prison officials acted with

deliberate indifference to that risk and the inmate's safety. Id.; accord, Morgan, 956 F.3d at

89.

Mindful of the Court's obligation to liberally construe a pro se litigant's pleadings, see,

e.g., Sealed Plaintiff, 537 F.3d at 191, the Court will require defendants Sheehan and Devlin-

Varin to respond to the complaint with respect to the Eighth Amendment failure to protect

claims asserted against them. In so ruling, the Court expresses no opinion as to whether

those claims can withstand a properly filed dispositive motion.

2. ADA and Rehabilitation Act Claims Asserted Against DOCCS, King,

and Devlin-Varin

Plaintiff's complaint alleges that, after losing his vision in his right eye in March 2020,

plaintiff applied for disability accommodations at Clinton C.F. See Compl. at 9, 22 (Exhibit E).

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When defendant Devlin-Varin completed the "medical verification" portion of the application,

she failed to indicate that plaintiff had vision loss. Compl. at 8, 22 (Exhibit E). Plaintiff

alleges that defendant Devlin-Varin's written comment on the accommodation application

noting that plaintiff needed re-evaluation after surgery was "belied by fact that Susan Devlin-

Varin did not make any appointments for plaintiff to receive follow up care[.]" Id. at 9.

Defendant King denied plaintiff's requests for accommodations after meeting with plaintiff. Id.

at 9-10, 22 (Exhibit E). The complaint further alleges that, because of his loss of vision, he

has difficulties walking, reading, and writing, and that he has been "denied access to

showers, recreation, messhall, law library and other programs and services and activities

conducted by [DOCCS]." Id. at 10, 15.

Title II of the ADA provides, in relevant part, 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 subjected to

discrimination by any such entity." 42 U.S.C. § 12132. Similarly, Section 504 of the

Rehabilitation Act requires that "[n]o otherwise qualified individual with a disability . . . shall,

solely by reason of her or his disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under any program or activity receiving Federal

financial assistance[.]" 29 U.S.C. § 794(a). Because the elements of plaintiff's ADA and

Rehabilitation Act claims for disability discrimination are the same, the Court considers these

claims together and applies a single analysis to both. See, e.g., Rodriguez v. City of New

York, 197 F.3d 611, 618 (2d Cir. 1999) ("Because Section 504 of the Rehabilitation Act and

the ADA impose identical requirements, we consider these claims in tandem.").

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To state a claim under those provisions, a plaintiff must allege "(1) that he is a

'qualified individual' with a disability; (2) that he was excluded from participation in a public

entity's services, programs or activities or was otherwise discriminated against by a public

entity; and (3) that such exclusion or discrimination was due to his disability." Phelan v.

Thomas, 439 F. App'x 48, 50 (2d Cir. 2011) (citing Hargrave v. Vermont, 340 F.3d 27, 34-35

(2d Cir. 2003)). Both Title II of the ADA and Section 504 of the Rehabilitation Act apply to

state prisons and their prisoners. Pennsylvania Dep't of Corrs. v. Yeskey, 524 U.S. 206, 210

(1998).

Mindful of the Court's obligation to liberally construe a pro se litigant's pleadings, see,

e.g., Sealed Plaintiff, 537 F.3d at 191, the Court will require defendants DOCCS, Devlin-

Varin, and King to respond to the complaint with respect to the ADA and Rehabilitation Act

claims asserted against them. In so ruling, the Court expresses no opinion as to whether

those claims can withstand a properly filed dispositive motion.

IV. MOTION FOR INJUNCTION

Plaintiff's motion for a preliminary injunction seeks a Court Order enjoining DOCCS

and its agents from denying plaintiff reasonable accommodations for his disabilities. Motion

for Injunction at 1-2.

"In general, district courts may grant a preliminary injunction where a plaintiff

demonstrates 'irreparable harm' and meets one of two related standards: 'either (a) a

likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of

its claims to make them fair ground for litigation, plus a balance of the hardships tipping

decidedly in favor of the moving party.'" Otoe-Missouria Tribe of Indians v. N.Y.S. Dep't of

Fin. Servs., 769 F.3d 105, 119 (2d Cir. 2014) (quoting Lynch v. N.Y., 589 F.3d 94, 98 (2d Cir.

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2009)). When the moving party seeks a "mandatory injunction that alters the status quo by

commanding a positive act," the burden is heightened. Cacchillo v. Insmed, Inc., 638 F.3d

401, 406 (2d Cir. 2011) (internal quotation marks omitted). A mandatory preliminary

injunction "should issue only upon a clear showing that the moving party is entitled to the

relief requested, or where extreme or very serious damage will result from a denial of

preliminary relief." Cacchillo, 638 F.3d at 406 (internal quotation marks omitted).

"'[T]he single most important prerequisite for the issuance of a preliminary injunction'"

is a showing that the moving party will suffer irreparable harm. Bisnews AFE (Thailand) Ltd.

v. Aspen Research Grp. Ltd., 437 F. App'x 57, 58 (2d Cir. 2011) (quoting Faiveley Transp.

Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009)). Speculative injury is not the

province of injunctive relief. City of L.A. v. Lyons, 461 U.S. 95, 111-12 (1983). Rather, a

plaintiff seeking to satisfy the irreparable harm requirement must demonstrate that, "absent a

preliminary injunction [he or she] will suffer an injury that is neither remote nor speculative,

but actual and imminent, and one that cannot be remedied if a court waits until the end of trial

to resolve the harm." Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir.

2007) (internal quotation marks omitted).

With due regard to plaintiff's pro se status, he has not demonstrated irreparable harm

in support of his motion While plaintiff alleges that the requested injunction "is required to

protect [him]" and that he "may suffer serious injuries that could be fatal" in the absence of

such an injunction, he offers no allegations or evidence to support these broad and vague

claims. Plaintiff's motion is subject to denial on this basis alone.

Even assuming, however, that plaintiff sufficiently demonstrated that he may suffer

irreparable harm, the motion for injunctive relief is nevertheless denied because plaintiff has

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failed to demonstrate, with evidence, a "clear and substantial" showing of a likelihood of

success or that extreme or very serious damage will result if the motion is denied. Indeed,

plaintiff offers insufficient evidence to even meet the lesser standard required for a prohibitory

injunction – a likelihood of success on the merits of his underlying claims, or sufficiently

serious questions going to the merits and a balance of hardships tipping decidedly in his

favor. See Moore, 409 F.3d at 510 (finding that preliminary injunctive relief "'is an

extraordinary and drastic remedy, one that should not be granted unless the movant, by a

clear showing, carries the burden of persuasion'") (quoting Mazurek v. Armstrong, 520 U.S.

968, 972 (1997)). After reviewing plaintiff's submission, the Court finds that plaintiff has failed

to meet the burden required for issuance of the preliminary injunctive relief requested.

Finally, plaintiff's motion is denied on the additional basis that it appears plaintiff's

request is moot. While plaintiff requests an Order directing DOCCS and its agents to provide

him with reasonable accommodations, in his complaint, he alleges that he received all the

accommodations he originally requested once he was transferred to a new prison facility.

Compl. at 14. Plaintiff does not allege that any of those accommodations have been revoked

or that he has been denied any newly requested accommodations. Accordingly, plaintiff's

motion is denied as moot.

V. COUNSEL MOTION

The statute that governs IFP proceedings provides, in relevant part, that "[t]he court

may request an attorney to represent any person unable to afford counsel." 28 U.S.C. §

1915(e)(1); see also Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). That

section, however, does not require that counsel be appointed for every indigent civil litigant.

Although the United States Constitution assures that indigent litigants have "meaningful

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access" to the courts, it does not guarantee that all such parties will receive the benefit of pro

bono representation. Hodge, 802 F.2d at 60 (quoting Bounds v. Smith, 430 U.S. 817, 823

(1977)). Instead, section 1915(e) confers broad discretion on the courts to appoint counsel to

deserving indigent litigants in appropriate circumstances. Hodge, 802 F.2d at 60-62.

There is no bright line test to be applied when a pro se, indigent civil litigant seeks

appointment of counsel. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). The

factors informing the decision of whether to exercise discretion in favor of appointing counsel

were summarized by the Second Circuit in its decision in Hodge:

In deciding whether to appoint counsel . . . , the [Court] should first

determine whether the indigent's position seems likely to be of

substance. If the claim meets this threshold requirement, the court

should then consider the indigent's ability to investigate the crucial

facts, whether conflicting evidence implicating the need for cross-

examination will be the major proof presented to the fact finder, the

indigent's ability to present the case, the complexity of the legal

issues and any special reason in that case why appointment of

counsel would be more likely to lead to a just determination.

Hodge, 802 F.2d at 61-62. In weighing these factors, each case must be decided on its own

merits. Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (citing Hodge, 802

F.2d at 61). Of these criteria, the Second Circuit has "stressed the importance of the

apparent merits of the indigent's claim." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172

(2d Cir. 1989). While a plaintiff need not demonstrate that he can win his case without the

aid of counsel, he does have to show "likely merit." McDowell v. State of New York, No. 91-

CV-2440, 1991 WL 177271, at *1 (S.D.N.Y. 1991).

Plaintiff argues that he is entitled to pro bono counsel in this action because it "is

complicated," he is blind, he "can not [sic] have unlimited access to legal resources to litigate

[his] case due to restrictions imposed . . . by [DOCCS]," and he does "not know civil law

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well." Counsel Motion at 1-2. With due regard for plaintiff's pro se status, the circumstances

he describes, including unfamiliarity with the law and limited access to legal resources, are

not unlike those many pro se inmate-plaintiffs face in litigating civil lawsuits and do not

provide a basis for granting plaintiff's motion. This action was only recently commenced, and

none of the defendants have yet responded to the allegations contained in plaintiff's

complaint. The threshold for surviving review under Sections 1915 and 1915A is minimal,

and the Court's finding that plaintiff's complaint should be accepted for filing with respect to

some of his claims is hardly the product of a thorough analysis of the likely merits of the

case. Accordingly, plaintiff's request for appointment of counsel is denied without prejudice.

Plaintiff is advised that, in the event this action should proceed to trial, the Court will revisit

this determination and likely appoint counsel for trial.

VI. CONCLUSION

WHEREFORE, it is hereby

ORDERED that plaintiff's application to proceed in the action in forma pauperis (Dkt.

No. 7) is GRANTED.5 The Clerk shall provide the superintendent of the prison facility in

which plaintiff is currently confined with a copy of plaintiff's inmate authorization form (Dkt.

No. 3) and notify the official that this action has been filed and that plaintiff is required to pay

the entire statutory filing fee $350.00 pursuant to 28 U.S.C. § 1915;6 and it is further

5 Plaintiff should note that, although his IFP application has been granted, he will still be required to pay fees

that he may incur in this action, including copying and/or witness fees.

6 While Section 1915 permits indigent litigants to commence a civil action in federal court without prepayment

of the filing fee, those litigants "must subsequently pay the fee, to the extent [they are] able to do so, through

periodic withdrawals from [their] inmate accounts." Cash, 2010 WL 5185047, at *1 (citing 28 U.S.C. § 1915(b);

Harris, 607 F.3d at 21).

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ORDERED that the Clerk shall provide a copy of plaintiff's inmate authorization form

(Dkt. No. 3) to the Financial Deputy of the Clerk's Office; and it is further

ORDERED that plaintiff's complaint (Dkt. No. 1) is ACCEPTED for filing in

accordance with this Decision and Order to the extent it asserts (1) Eighth Amendment

deliberate medical indifference claims against defendants Doe, Rushford, and Devlin-Varin;

(2) Eighth Amendment failure to protect claims against defendants Sheehan and Devlin-

Varin; and (3) ADA and Rehabilitation Act claims against defendants DOCCS, King, and

Devlin-Varin; and it is further

ORDERED that, except as to the foregoing, the remaining claims asserted in the

complaint are DISMISSED without prejudice pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C.

§ 1915A(b); and it is further

ORDERED that the Clerk shall issue summonses and forward them, along with copies

of the complaint and attached exhibits, to the United States Marshal Service for service of

process on defendants Rushford, Devlin-Varin, Sheehan, DOCCS, and King. The Clerk shall

also forward copies of the summonses and complaint (with attached exhibits) to the Office of

the New York State Attorney General; and it is further

ORDERED that a response to plaintiff's complaint shall be filed by defendants

Rushford, Devlin-Varin, Sheehan, DOCCS, and King, or their counsel, as provided for in the

Federal Rules of Civil Procedure after service of process on those individuals; and it is further

ORDERED that plaintiff shall take reasonable steps through discovery to ascertain the

identity of defendant John Doe, against whom one of plaintiff's Eighth Amendment deliberate

medical indifference claims is asserted. Plaintiff's failure to timely serve that defendant will

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result in dismissal of the claim asserted against defendant John Doe and termination of that

defendant from the action; and it is further

ORDERED that the Clerk shall TERMINATE from the docket defendant CORC; and it

is further

ORDERED that plaintiff's motion for a preliminary injunction (Dkt. No. 4) is DENIED;

and it is further

ORDERED that plaintiff's motion for the appointment of pro bono counsel (Dkt. No. 5)

is DENIED; and it is further

ORDERED that all pleadings, motions, and other documents relating to this action

must bear the case number assigned to this action and be filed with the Clerk of the United

States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S.

Clinton St., Syracuse, New York 13261-7367. Plaintiff must comply with all requests by the

Clerk's Office for any documents that are necessary to maintain this action. All parties must

comply with Rule 7.1 of the Local Rules of Practice for the Northern District of New York in

filing motions; motions will be decided on submitted papers, without oral argument, unless

otherwise ordered by this Court. Plaintiff is also required to promptly notify the Clerk's

Office and all parties or their counsel, in writing, of any change in his address; his

failure to do so may result in the dismissal of this action; and it is further

ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff in

accordance with the Local Rules of Practice for this Court.

IT IS SO ORDERED.

DATED: June 14, 2022 Cong ay

Thomas J. M¢gAvoy

Senior, U.S. District Judge

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