Czekalski v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason A. Czekalski
v. 	Civil No. 17-cv-064-JL
New Hampshire State Prison Warden
REPORT AND RECOMMENDATION
Before the court, in this § 2254 petition, is petitioner
Jason Czekalski’s motion for a preliminary injunction (Doc. No.
22). 	Czekalski seeks an order requiring prison officials to
desist from interfering with his access to a third party,
Attorney Katherine Maggi, who is in an “exploratory phase” of an
attorney-client relationship with Czekalski, see July 12, 2019
Aff. of Katherine Maggi ¶ 15 (Doc. No. 26, at 2). 	Czekalski
seeks an order directing that he have access to Attorney Maggi
“under the same terms and conditions he would be allowed access
to any other licensed attorney,” June 19, 2019 Mot. for Prelim.
Inj. (Doc. No. 22, at 2). 	The motion for a preliminary
injunction, to which respondent objects, see July 1, 2019 Obj.
to Mot. for Prelim. Inj. (Doc. No. 23), has been referred to the
undersigned magistrate judge for a report and recommendation.1
1Czekalski has filed the same motion for a preliminary
injunction in each pending case that he has filed in the
District of New Hampshire. 	See Mot. Prelim. Inj., Czekalski v.
N.H. State Prison Warden, No. 17-cv-577-JL (D.N.H.) (ECF No.
59); Czekalski v. N.H. Dep’t of Corr. Comm’r, No. 18-cv-592-PB
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See June 19, 2019 Order.
Discussion
“‘A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.’” 	Glossip v. Gross,
135 S. Ct. 2726, 2736 (2015) (citation omitted). 	The likelihood
of success is the “‘sine qua non of th[e] four-part inquiry.’”
Shurtleff v. City of Bos., 928 F.3d 166, 171 n.3 (1st Cir. 2019)
(citation omitted). 	The burden of proof is on the movant. 	See
Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st Cir.
2006).
This is the second time in this case that Czekalski has
requested a preliminary injunction relating to the conditions of
his confinement. 	For reasons stated in connection with the
court’s denial of his first such request, his prison conditions
claims do not fall within the core of this court’s habeas
jurisdiction; and his habeas petition is not the proper forum
for obtaining the injunctive relief he seeks on those claims.
(D.N.H.) (ECF No. 46); Czekalski v. N.H. Dep’t of Corr. Comm’r,
No. 19-cv-121-LM (D.N.H.) (ECF No. 3). 	Each of those motions
has been referred to the undersigned magistrate judge for a
report and recommendation.
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See Czekalski v. Zenk, No. 17-cv-064-JL, 2018 WL 1787945, at *1,
2018 U.S. Dist. LEXIS 63629, at *2-3 (D.N.H. Mar. 2, 2018) (Doc.
No. 11) (recommending denial of request for preliminary
injunction to enjoin seizure of Czekalski’s legal materials, as
that request is not properly considered in habeas action (citing
cases)), R&R approved, 2018 WL 1787931, 2018 U.S. Dist. LEXIS
62794 (D.N.H. Apr. 13, 2018) (Doc. No. 16); see also
Kyricopoulos v. Murphy, No. 16-cv-12431-IT, 2017 U.S. Dist.
LEXIS 46643, at *4, 2017 WL 1190376, at *2 (D. Mass. Mar. 29,
2017). 	This court’s disposition of the instant motion should be
the same as its disposition of that prior, analogous request.
Accordingly, the instant motion (Doc. No. 22) should be denied
without prejudice to petitioner’s ability to litigate and seek
relief in a civil rights action under 42 U.S.C. § 1983.
Conclusion
For the foregoing reasons, the district judge should deny
the motion for a preliminary injunction (Doc. No. 22), without
prejudice to petitioner’s ability to litigate and seek relief in
a civil rights action. 	Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. 	See Fed. R. Civ. P. 72(b)(2). 	The fourteen-day
period may be extended upon motion. 	Failure to file specific
written objections within the specified time waives the right to
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appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 8, 2019
cc: 	Jason A. Czekalski, pro se
Elizabeth C. Woodcock, Esq.
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