Engles v. Corigliano

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JESSIE ENGLES,

Plaintiff,

9:23-CV-1056

v. (GTS/DJS)

BRANDI CORIGLIANO, et al.,

Defendants.

APPEARANCES:

JESSIE ENGLES

Plaintiff, Pro se

22-B-1293

Auburn Correctional Facility

P.O. Box 618

Auburn, NY 13021

HON. LETITIA JAMES AIMEE COWAN, ESQ.

New York State Attorney General Ass't Attorney General

Attorney for Dinello, Zaki, and Corigliano

The Capitol

Albany, NY 12224

SUGARMAN LAW FIRM LLP ALEXANDRA A. CALHOUN, ESQ.

Attorneys for Dr. Changlai ZACHARY M. MATTISON, ESQ.

211 West Jefferson Street

Syracuse, NY 13202

315-362-8967

GLENN T. SUDDABY

Senior United States District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiff Jessie Engles commenced this action by filing a pro se complaint pursuant to

42 U.S.C. § 1983 ("Section 1983"), together with an application to proceed in forma pauperis

("IFP"). Dkt. No. 1 ("Compl."); Dkt. No. 3 ("IFP Application"). By Decision and Order entered

on October 11, 2023, this Court granted plaintiff's IFP Application, reviewed the complaint for

sufficiency in accordance with 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), dismissed plaintiff’s

official capacity claims for money damages, and found that plaintiff’s Eighth Amendment

medical indifference claims against the named defendants survived sua sponte review and

required a response. Dkt. No. 5 ("October 2023 Order").

Following the completion of service on all but one of the defendants, answers to the

complaint were filed, and a Mandatory Pretrial Discovery and Scheduling Order was issued.

See Dkt. Nos. 13, 14, 20, 25. Presently before the Court are the following: (1) plaintiff's

motion for appointment of counsel, Dkt. No. 43 ("Motion for Counsel"); and (2) plaintiff's

motion for a preliminary injunction and temporary restraining order ("Motion for Injunctive

Relief").

II. MOTION FOR COUNSEL

It is well-settled that there is no right to appointment of counsel in civil matters.

Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). Title 28 of United States Code Section

1915 specifically provides that a court may request an attorney to represent any person

"unable to afford counsel." 28 U.S.C. § 1915(e)(1). Appointment of counsel must be done

carefully in order to preserve the "precious commodity" of volunteer lawyers for those litigants

who truly need a lawyer's assistance. Cooper v. A. Sargenti, Inc., 877 F.2d 170,

172-73 (2d Cir. 1989).

In Terminate Control Corp. v. Horowitz, 28 F.3d 1335 (2d Cir. 1994), the Second

Circuit reiterated the factors that a court must consider in ruling upon such a motion. 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 a number of other factors in making its determination. See id. at

1341 (quoting Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)); Sawma v. Perales,

895 F.2d 91, 95 (2d Cir. 1990). Among these are

[t]he 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 ... why appointment of counsel would

be more likely to lead to a just determination.

Hodge, 802 F.2d at 61. None of these factors are controlling, however, and each case

should be decided on its own facts. Id.

Even if the Court were to assume that this case may be of substance, the dispute is

limited to plaintiff's Eighth Amendment medical indifference claims related to alleged injuries

he suffered as a result of swallowing foreign objects in late 2019. See generally, Compl. at 4-

7. Although plaintiff generically states in his motion that these claims present overly complex

issues, see Dkt. No. 43 at 1-4, the Court has no basis to reach that conclusion based on the

current record before it. Nor does the Court have a basis to conclude, in light of the current

record, that plaintiff (1) does not have an ability to investigate pertinent facts and present his

case, having adequately pled claims that survived sua sponte review and filed multiple

motions with the Court since then, or (2) is not currently in possession of discovery that

should help him to frame the relevant issues and investigate the "crucial facts" without the

need for counsel. See Dkt. Nos. 26, 33, 43, 44.

While it is possible, should this case proceed to a trial, that there will be conflicting

evidence implicating the need for cross-examination, as is the case in many actions brought

under Section 1983 by pro se litigants, "this factor alone is not determinative of a motion for

appointment of counsel." Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995).

Further, if this case proceeds to trial, it is highly probable that the Court will appoint trial

counsel at the final pretrial conference. This Court is not aware of any special reason why

appointment of counsel at this time would be more likely to lead to a just determination of

this litigation.

For all of these reasons, the Court finds that appointment of counsel is unwarranted at

this time. Plaintiff may file another motion for appointment of counsel in the event he can

demonstrate that, in light of specific changed circumstances, consideration of the above

factors warrants granting the application.

III. MOTION FOR INJUNCTIVE RELIEF

A. Factual Overview of the Claims Remaining in this Action

In his complaint, plaintiff asserted Eighth Amendment medical indifference claims

against Auburn Correctional Facility Health Services Director David Dinello, Marcy

Correctional Facility Nurse Practitioner Brandi Corigliano, Dr. Shehab Zaki, a physician

assigned to Marcy Correctional Facility, and two physicians employed at SUNY Upstate

based on allegations that these individuals failed to provide him with constitutionally adequate

medical care after he ingested foreign objects in December, 2019. See generally, Compl.;

see also October 2023 Order at 4-7. After reviewing the complaint pursuant to 28 U.S.C. §

1915(e)(2)(B) and 28 U.S.C. § 1915A, the Court found that plaintiff's Eighth Amendment

claims against these individuals survived sua sponte review. See October 2023 Order at 7-

16.

B. Overview of Plaintiff's Motion for Injunctive Relief

Plaintiff seeks an order asking the Court to “enjoin” defendants “Brandi Corigliano, et.

al.”, their “successors in office, agents and employees and all other persons acting in concern

[sic] and participation with them” to provide plaintiff with “a medically appropriate course of

open stomach surgery needed to remove the one sewing needle and surgical metallic clamp

wrongfully left inside of me during the Sept. 20, 2020 surgery [and] to fix[ ] my hernia in my

upper abs bulging out with a mesh bag, and for the needed physical therapy course needed

to help me walk and move around with the aid of a . . . back brace and needed muscle

relaxer pains medication like Percocet or oxycodone as the doctor might prescribe, that is

known to help ease pain, that NYS DOCCS prisons doctors/providers are not adhering to

under chronic pain medications health services policy manual 1.24A for the full 6 months

after these surgery procedures needed to heal up properly.” Dkt. No. 44 at 1-2. Plaintiff

further requests that the Court order that he be examined by “qualified GSS Doctor Moustafa

Hassan whom has approved this needed surgery…” Id.

Defendants Dinello, Corigliano, Zaki, and Changlai have opposed plaintiff’s motion.

Dkt. Nos. 47, 48. Defendants Dinello, Corigliano, and Zaki argue that plaintiff's motion should

be denied because (1) plaintiff cannot enjoin the action of non-parties, (2) plaintiff cannot

seek injunctive relief to prevent an injury that was not caused by the wrongdoing alleged in

the underlying action, (3) plaintiff has not demonstrated that the New York State Department

of Corrections and Community Supervision ("DOCCS") has the authority to perform the

requested actions, (4) plaintiff is not entitled to an "obey the law" injunction, (5) plaintiff has

failed to establish that he will suffer irreparable harm in the absence of the injunctive relief

that he seeks, and (6) plaintiff has failed to demonstrate that he is likely to succeed on the

merits of his deliberate indifference claims. See Dkt. No. 47. Defendant Changlai argues

that the motion should be denied as made against him because (1) Dr. Changlai is not a state

actor, (2) Dr. Changlai does not have the authority or ability to schedule consultations or

surgeries for plaintiff, and (3) plaintiff cannot establish a likelihood of success on the merits of

his claim that the denial of the medical treatment he seeks amounts to a violation of his

constitutional rights (as opposed to a difference in opinion regarding necessary medical

treatment). See Dkt. No. 48-2.

C. Analysis

"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. New York State

Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (quoting Lynch v. City of N.Y., 589

F.3d 94, 98 (2d Cir. 2009) (internal quotation marks omitted)). However, when the moving

party seeks a "mandatory injunction that alters the status quo by commanding a positive act,"

the burden is even higher. Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (citing

Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35

n.4 (2d Cir. 2010) (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 (citing Citigroup Global Mkts., 598 F.3d at 35 n.4) (internal

quotation marks omitted)); see also Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc.,

60 F.3d 27, 33-34 (2d Cir. 1995) (a plaintiff seeking a mandatory injunction must make a

"clear" or "substantial" showing of a likelihood of success on the merits of his claim). The

same standards used to review a request for a preliminary injunction govern consideration of

an application for a temporary restraining order. Local 1814, Int'l Longshoremen's Ass'n,

AFL-CIO v. New York Shipping Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992).

The district court has wide discretion in determining whether to grant preliminary

injunctive relief. Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 511 (2d Cir.

2005). "In the prison context, a request for injunctive relief must always be viewed with great

caution so as not to immerse the federal judiciary in the management of state prisons."

Fisher v. Goord, 981 F. Supp. 140, 167 (W.D.N.Y. 1997) (citing Farmer v. Brennan, 511 U.S.

825, 846-47 (1994)) (other citations omitted).

Upon review, and for several of the reasons set forth in defendants’ opposition papers,

plaintiff's motion must be denied.

First, insofar as plaintiff seeks medical treatment for ingesting foreign objects after

December 2019, injuries that he caused himself, or a hernia or back condition, there is

currently no controversy before this Court regarding plaintiff's medical treatment associated

with a hernia or back condition, or ingesting foreign objects (or self-inflected injuries) after

December, 2019. See Stewart v. U.S. I.N.S., 762 F.2d 193, 198-99 (2d Cir. 1985) ("Only

after an action has been commenced can preliminary injunctive relief be obtained. . . . Herein,

Stewart filed a complaint in the district court in October, 1983, alleging discrimination in

employment based on conduct of the type asserted in his 1980 EEOC claims, and thereby

commenced an action pertaining to the then alleged discriminatory conduct. His July, 1984

motion for preliminary injunctive relief, claiming discrimination and retaliation based on his

suspension without pay in May, 1984, presents issues which are entirely different from those

which were alleged in his original complaint. Since Stewart neither filed a separate complaint

in the district court relating to his suspension without pay and based upon his MSPB action, .

. . nor sought to avail himself of the liberal rules which would have allowed for the

amendment of his original October, 1983 complaint, we hold that no jurisdictional basis

existed upon which the district court herein could have issued its preliminary injunctive

relief."); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) ("It is self-evident that

Devose's motion for temporary relief has nothing to do with preserving the district court's

decision-making power over the merits of Devose's [Section] 1983 lawsuit. To the contrary,

Devose's motion is based on new assertions of mistreatment that are entirely different from

the claim raised and the relief requested in his inadequate medical treatment lawsuit.

Although these new assertions might support additional claims against the same prison

officials, they cannot provide the basis for a preliminary injunction in this lawsuit."); Omega

World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) ("[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."); Colvin v. Caruso, 605

F.3d 282, 300 (6th Cir.2010) (the plaintiff "had no grounds to seek an injunction pertaining to

allegedly impermissible conduct not mentioned in his original complaint); Davidson v. Scully,

914 F. Supp. 1011, 1016 (S.D.N.Y. 1996) ("Plaintiff complains that his furnishings and

supplies are inadequate and this interferes with his ability to prepare his cases. Although

argued as a motion for a preliminary injunction, plaintiff in fact has moved for an order

unrelated to the merits of his underlying claims, because there is no actual controversy

between the parties before the Court regarding the adequacy of plaintiff's furnishings and

supplies."); see also Scarborough v. Evans, No. 9:09-CV-0850 (NAM/DEP), 2010 WL

1608950, at *2 (N.D.N.Y. Apr. 20, 2010) (motion for preliminary injunction alleging use of

excessive force and denial of medical care by non-parties denied where complaint alleged

denial of mental health care and proper conditions of confinement); Lewis v. Johnston, No.

9:08-CV-0482 (TJM/ATB), 2010 WL 1268024, at *3 (N.D.N.Y. Apr. 1, 2010) (denying motion

for injunctive relief based upon actions taken by staff at Great Meadow Correctional Facility in

2010, where the complaint alleged wrongdoing that occurred at Franklin and Upstate

Correctional Facilities in 2006 and 2007).

Second, insofar as plaintiff seeks injunctive relief against non-party officials currently

involved in either plaintiff's medical treatment, or scheduling and approving medical

procedures, a request for injunctive relief against non-parties is available only under very

limited circumstances, none of which are clearly present here. See Fed. R. Civ. P. 65(d)(2);

Doctor's Associates, Inc. v. Reinert & Duree, P.C., 191 F.3d 297, 302-03 (2d Cir. 1999);

United States v. Regan, 858 F.2d 115, 120 (2d Cir. 1988); see also In re Rationis

Enterprises, Inc. of Panama, 261 F.3d 264, 270 (2d Cir. 2001) ("A court may not grant a final,

or even an interlocutory, injunction over a party over whom it does not have personal

jurisdiction.").

Third, the law is well-settled that plaintiff is not entitled to the treatment of his choosing,

and “[m]ere disagreement over proper treatment does not create a constitutional claim” as

long as the treatment is adequate. Chance v. Amstrong, 143 F.3d 698, 702 (2d Cir. 1988);

see also Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“[A]n inadvertent failure to provide

adequate medical care [is insufficient to sustain a constitutional claim because] ...

negligen[ce] in ... diagnosing or treating a medical condition does not state a valid claim”).

Moreover, defendants have introduced record evidence in the form of plaintiff’s deposition

testimony and medical records showing that plaintiff (1) was discharged from DOCCS

custody for a period of time after the alleged events that give rise to his pending claims, and

(2) has engaged in self-harm and ingested other foreign objects since he underwent surgery

in September, 2020. See generally, Dkt. Nos. 47-2, 47-3. Thus, plaintiff has failed to

establish, through documentary evidence, that the failure of any named defendant to

schedule (or perform) additional surgery to remove remnants of a foreign object that plaintiff

ingested in 2019 has presented an ongoing risk of harm to plaintiff’s well-being, i.e., that he is

likely to succeed on the merits of any claim against the named defendants related to his

current medical condition.

Fourth, plaintiff has failed to establish that his medical condition has worsened since

2020 as a result of the failure to remove remnants of a foreign object that plaintiff ingested in

2019 (as opposed to as a result of other intervening events). Moreover, aside from plaintiff’s

speculation, the Court has no basis to plausibly infer that plaintiff is likely to suffer imminent

irreparable harm in the absence of a surgical procedure to remove remnants of a foreign

object that plaintiff ingested in 2019. See Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir.

2002) (preliminary relief cannot be founded on irreparable harm that is "remote or

speculative"); Hooks v. Howard, No. 9:07-CV-0724, 2008 WL 2705371, at *2 (N.D.N.Y. July

3, 2008) (citation omitted) ("Irreparable harm must be shown to be imminent, not remote or

speculative, and the injury must be such that it cannot be fully remedied by monetary

damages."); Phelan v. Hersh, No. 9:10-CV-0011(GLS/RFT), 2010 WL 277064, at *6

(N.D.N.Y. Jan. 20, 2010) ("Phelan has submitted only his own affidavit containing his request

for injunctive relief and the reasons why he believes his request should be granted. Phelan's

allegations that he requires and is not receiving mental health care, standing alone, are not

sufficient to entitle him to preliminary injunctive relief.").

Fifth, plaintiff has failed to establish that any of the named defendants are currently

responsible for his medical treatment and have the authority to schedule him for surgery.

For all of these reasons, plaintiffs request for injunctive relief is denied without

prejudice.

IV. CONCLUSION

WHEREFORE, it is hereby

ORDERED that plaintiff's request for appointment of counsel (Dkt. No. 43) is DENIED

without prejudice as set forth above; and it is further

ORDERED that plaintiff's motion for injunctive relief (Dkt. No. 44) is DENIED without

prejudice as set forth above; and it is further

ORDERED that the Clerk serve a copy of this Decision and Order on the parties.

IT IS SO ORDERED.

Dated: February 4, 2025

Syracuse, NY

U.S. District Judge