Keesh v. Quick

Background

Tyheem Y. Keesh, who was incarcerated at Sing Sing Correctional Facility and proceeded without a lawyer, brought this action under 42 U.S.C. § 1983, a federal law allowing claims for constitutional violations by state officials. He sued Quandera Quick, J.P. Franco, Salvatore P. Gregory, D. Rodriguez, B. Bodge, S.A. Coughlin, R. Williams, Michael Barnes, Michael Capra, Mark Royce, Shelley Mallozzi, Rebecca A. Loren, and unidentified John/Jane Doe defendants.

The court had previously granted Keesh permission to proceed without prepaying the filing fee. Although a federal statute generally limits incarcerated plaintiffs with certain prior cases from proceeding this way, the court found that Keesh adequately alleged imminent danger of serious physical injury.

Service of the Complaint

Because Keesh was allowed to proceed without prepaying the filing fee, the court directed the U.S. Marshals Service to serve the complaint and summonses on the named defendants. The Clerk of Court was instructed to prepare the required service forms, issue summonses, and provide the Marshals Service with the necessary papers.

The court extended the time for service until 90 days after the summonses are issued. It stated that Keesh should ask for another extension if service is not completed within that period. The court also directed Keesh to notify it in writing if his address changes and warned that the action could be dismissed if he failed to do so.

Unidentified Defendants

Keesh named John/Jane Doe defendants but alleged only, on information and belief, that they contacted certain prison personnel and encouraged or directed Franco to write and identify Keesh in a misbehavior report. A court may assist a self-represented incarcerated litigant in identifying an unknown defendant when the person cannot reasonably discover the defendant’s identity. The court found that the allegation here was too speculative and did not provide enough information to identify the Doe defendants.

The court therefore declined at that time to issue an identification order for the Doe defendants, while stating that it would revisit the issue later if necessary.

Preliminary Injunction

Keesh requested emergency preliminary injunctive relief—a temporary court order requiring or prohibiting certain conduct while the case proceeds. He sought an order requiring a transfer from Housing Block “B” to Housing Block 7, preventing interference with his duties as an Inmate Grievance Program Committee representative, granting him a daily movement pass, and requiring verifiable inmate-grievance-program elections.

The court explained that this relief requires a showing of likely irreparable harm and either a likelihood of success on the merits or sufficiently serious questions for litigation combined with a strongly favorable balance of hardships. The court found that Keesh had not met that standard. It said his affirmation lacked specific facts showing discriminatory intent, and that conclusory references to bias and discrimination were insufficient. It also stated that the requested housing transfer and loss of certain program privileges were unlikely to qualify as due-process violations on the allegations presented.

The court denied Keesh’s request for preliminary injunctive relief without prejudice to renewal later.

Request for Appointed Counsel

Keesh also asked the court to appoint a lawyer. The court applied a two-step test: first, whether the claims appeared likely to have merit; and second, if so, whether factors such as difficulty investigating the facts, the need for cross-examination, the complexity of the issues, or Keesh’s ability to present the case supported appointment.

The court found that Keesh had not shown a sufficient likelihood of merit for the same general reasons discussed in connection with the requested injunction. It also found that he had not shown that he would face unusual difficulty proceeding without a lawyer. The court noted that his claims were largely based on events he personally experienced and did not appear unusually complex or to require outside investigation at that stage.

Judge Kenneth M. Karas denied the request for appointed counsel without prejudice to renewal later.

Disposition

The court ordered the Clerk to issue summonses and complete the service paperwork for the named defendants. It declined at that time to issue an identification order concerning the Doe defendants. It denied without prejudice both the request for preliminary injunctive relief and the request for appointed counsel. The court also certified that an appeal from the order would not be taken in good faith and denied permission to proceed without prepaying fees for purposes of an appeal.