Herbert v. Ginty

Background

Jeremiah F. Herbert, who was incarcerated at Sullivan Correctional Jail and proceeding without a lawyer, brought this action under 42 U.S.C. § 1983, a federal law that permits claims against state actors for constitutional violations. He had been allowed to proceed without paying filing fees. Herbert filed several amended complaints and requested appointed counsel and preliminary injunctive relief, meaning an immediate court order intended to prevent ongoing harm before the case is resolved.

An earlier order had dismissed claims against Frank Labuda, Esq., on immunity grounds; dismissed Herbert’s access-to-the-courts claim for failure to state a claim; permitted him to amend his conditions-of-confinement claim; and directed service on the remaining defendants. The earlier order also denied Herbert’s request for a show-cause order concerning preliminary relief. Only the religious discrimination claim had not been dismissed at that point.

Access-to-the-Courts Claim

The court again dismissed Herbert’s access-to-the-courts claim under 28 U.S.C. § 1915(e)(2)(B)(ii), which requires dismissal of certain claims brought by people proceeding without filing fees when they fail to state a legally sufficient claim. The court explained that Herbert had not alleged an actual injury, such as the loss or dismissal of an otherwise valid legal claim. The allegations in his Third Amended Complaint had the same deficiencies as those previously dismissed.

Conditions-of-Confinement Claim

Herbert’s Third Amended Complaint added factual allegations supporting his unconstitutional-conditions-of-confinement claim under the Fourteenth Amendment and § 1983. Giving appropriate leeway to a person representing himself, the court did not dismiss that claim at this stage. The opinion therefore left the claim pending rather than deciding whether Herbert would ultimately prevail.

Request for Counsel

The court denied Herbert’s request for appointed counsel without prejudice, meaning he could renew the request later. The court stated that civil litigants do not have an automatic right to a court-appointed lawyer. Although Herbert qualified as unable to afford counsel, the court could not determine whether his claims were likely to have substance, and the other factors governing requests for counsel weighed against granting the request at this early stage.

Request for Preliminary Injunctive Relief

Herbert sought an order requiring defendants to explain why the court should not provide immediate relief concerning alleged deficiencies in the jail’s law library and legal assistance. He requested a printer, free photocopies, access to a jailhouse-lawyer manual, and confidential meetings with attorneys. The court denied the request for a show-cause order because it was based on the already-dismissed access-to-the-courts claim. The court also found that Herbert had not shown that he would suffer irreparable harm, an injury that could not adequately be remedied later, without the requested extraordinary relief.

Disposition and Remaining Claims

The court dismissed the access-to-the-courts claim, denied Herbert’s request that the court appoint counsel without prejudice, and denied his request for a preliminary-injunction show-cause order. The religious discrimination claim and the unconstitutional-conditions-of-confinement claim remained operative. The defendants had been served and were directed to answer or move by December 14, 2020. The court also certified that an appeal from the order would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal.