McFadden v. Annucci, 6:16-cv-06105

Background

Plaintiff Reginald McFadden, an inmate at Attica Correctional Facility, seeks to amend his Second Amended Complaint to add defendants and claims (retaliation, denial of medical care) and requests a preliminary injunction, consolidation with a closed 2013 case, and appointment of counsel.
McFadden previously filed complaints in the Northern District of New York; claims arising at Attica were severed and transferred to the Western District, where the Court allowed a Second Amended Complaint and then McFadden filed the instant motions.
The Motion to Amend/Correct did not attach a complete proposed Third Amended Complaint as required by Local Rule 15(a) and Federal Rules 8 and 10.
McFadden’s motion sought a preliminary injunction against retaliation and an order compelling Acting Commissioner Annucci to stop retaliation; the allegations were largely conclusory.
McFadden also moved to consolidate this action with a closed 2013 case and to appoint counsel; the 2013 case remains closed and no defendants had yet answered in this matter.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Motion to amend (procedural compliance)	McFadden asks to add defendants/claims via a Motion to Amend/Correct	Court requires a complete proposed amended pleading attached per Local Rule 15(a) and Rules 8/10	Motion denied for noncompliance but granted insofar as permission to file a proper motion; deadline set to file a full proposed Third Amended Complaint by Nov. 28, 2017
Preliminary injunction (retaliation relief)	McFadden alleges defendants are retaliating and asks the Court to enjoin retaliation and compel Annucci	Defendants argue extraordinary relief not warranted on conclusory allegations; movant must show irreparable harm and likelihood of success or serious questions and favorable balance of hardships	Denied: McFadden failed to show likelihood of success or sufficiently serious questions with tipping balance; conclusory allegations insufficient
Motion to consolidate with 13-CV-559	McFadden asks consolidation with his closed 2013 case	The 2013 case was dismissed and judgment entered; post-judgment motions were denied and the case is closed	Denied: the earlier action is closed and cannot be consolidated
Motion to appoint counsel	McFadden says he cannot prosecute without counsel	Court considers factors for appointment under 28 U.S.C. § 1915(e) and whether claims appear likely to be of substance; no responses from defendants yet	Denied without prejudice: unclear whether claims are likely to be of substance; plaintiff may reapply later or retain counsel

Key Cases Cited

Arce v. Walker, 139 F.3d 329 (2d Cir. 1998) (an amended complaint ordinarily supersedes the original)
N.A.A.C.P., Inc. v. Town of East Haven, 70 F.3d 219 (2d Cir. 1995) (preliminary injunction standards: irreparable harm and likelihood of success or serious questions plus balance of hardships)
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) (higher ‘‘clear or substantial’’ showing required for mandatory injunctions or when relief is effectively unreviewable)
Distribution Sys. of America, Inc. v. Vill. of Old Westbury, 785 F. Supp. 347 (E.D.N.Y. 1992) (preliminary injunction is an extraordinary remedy and not routine)
JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75 (2d Cir. 1990) (standards governing preliminary injunctions and extraordinary nature of relief)
Sears, Roebuck & Co. v. Charles Sears Real Estate, Inc., 865 F.2d 22 (2d Cir. 1988) (no constitutional right to appointed counsel in civil cases; appointment under § 1915(e) is discretionary)
Cooper v. A. Sargenti Co., 877 F.2d 170 (2d Cir. 1989) (courts should carefully consider appointing volunteer counsel due to limited volunteer resources)
Hendricks v. Coughlin, 114 F.3d 390 (2d Cir. 1997) (appointment of counsel requires consideration of whether claims are likely of substance)
Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986) (factors for appointment of counsel in civil rights cases)