Czekalski v. NH Department of Corrections, Commissioner et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason A. Czekalski
v. 	Civil No. 18-cv-592-PB
Helen Hanks, New Hampshire Department
of Corrections Commissioner; and James
Daly, New Hampshire State Prison Chaplain
REPORT AND RECOMMENDATION
Before the court is plaintiff Jason Czekalski’s motion for
a preliminary injunction (Doc. No. 46). 	Czekalski, a New
Hampshire State Prison (“NHSP”) inmate, seeks an order mandating
that the defendants 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. 53, at 2)
(“Maggi Aff.”), and that defendants allow Czekalski to 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. 46, at 2). 	Plaintiff’s
motion for a preliminary injunction, to which defendants object,
see July 1, 2019 Obj. to Mot. for Prelim. Inj. (Doc. No. 50),
has been referred to the undersigned magistrate judge for a
report and recommendation.1 	See June 19, 2019 Order.
1Czekalski has filed the same motion for a preliminary
injunction in each pending case that he has filed in this court.
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Background
Plaintiff filed this case pro se, asserting in the
complaint that defendants, New Hampshire Department of
Corrections (“DOC”) Commissioner Helen Hanks and NHSP Chaplain
James Daly, acting in their individual and official capacities,
have violated his rights under the First Amendment Free Exercise
Clause, the First Amendment Establishment Clause, and the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
by taking actions and implementing policies that, plaintiff
asserts, interfere with his practice of Judaism and favor the
practices of other faiths. 	Defendants have moved to dismiss,
and their motion to dismiss (Doc. No. 11) remains pending.2
Plaintiff’s instant motion for a preliminary injunction
seeks an order directing defendants to remove the impediments to
his access to Attorney Maggi, an attorney admitted to the New
Hampshire Bar whose brother, Gregory Maggi, is another NHSP
inmate. 	Czekalski argues that his ability to meet with Attorney
Maggi, to decide whether she might help him with his legal work,
See Mot. Prelim. Inj., Czekalski v. N.H. State Prison Warden,
No. 17-cv-064-JL (D.N.H.) (ECF No. 22); Czekalski v. N.H. Dep’t
of Corr. Comm’r, No. 17-cv-557-JL (D.N.H.) (ECF No. 59);
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.
2Plaintiff has also moved to amend the complaint, adding
facts concerning his religious freedom and Establishment Clause
claims. 	That motion (Doc. No. 37) also remains pending.
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has been restricted, as Attorney Maggi’s recent attempts to meet
with her brother Gregory have been restricted, and the NHSP
Warden has suspended all of Attorney Maggi’s NHSP visitation
privileges for ninety days, beginning on June 14, 2019.
The parties’ exhibits describe the circumstances leading up
to the suspension of visitation privileges. 	Attorney Maggi, who
has been on her brother’s approved list of family visitors, was
recently admitted to the New Hampshire Bar. 	When Attorney Maggi
appeared at the NHSP seeking to visit her brother in her
capacity as an attorney, a corrections officer told her that an
NHSP directive indicated she would need to show she was in fact
representing Gregory in a pending case before she would be
allowed to visit him as his lawyer. 	Maggi Aff. ¶ 5. 	Prison
staff refused Attorney Maggi’s requests for a copy of those
directives, Maggi Aff. ¶¶ 5, 8, and then denied her next
requests to visit her brother. 	Attorney Maggi’s affidavit
indicates she was told by a corrections officer that the notice
of appearance she produced at the NHSP, which she intended to
file in her brother’s case, did not in fact show that she
represented him in a pending case. 	See id. ¶¶ 6-7.
Prison officials represent that Attorney Maggi expressed
her dismay in no uncertain terms. 	The June 14, 2019 letter from
NHSP Warden Michelle T. Edmark to Attorney Maggi (Doc. No. 50-4)
states that Attorney Maggi used profanity and was disrespectful
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of NHSP staff in the NHSP lobby in the presence of other
visitors, including children. 	The Warden’s letter suspended
Attorney Maggi’s NHSP visitation privileges for ninety days,
effective on June 14, 2019. 	For present purposes, this court
assumes without deciding that the temporary suspension restricts
Attorney Maggi’s ability to visit any inmate at the NHSP while
it remains in effect. 	See Maggi Aff. ¶¶ 9-10.
Czekalski claims that defendants have interfered with his
access to Attorney Maggi and his constitutional right of access
to the courts. 	He asserts: (1) he cannot litigate all of his
claims effectively, and at once,
due to the extreme lack of resources and the obstacles
inherent to [being] incarcerated: limited law library
access; limited finances; lack of access to word-processing
capabilities; lack of access to outside information
resources such as the State Fire Marshal (who will not
answer requests for information) or the Department of
Administrative Services (which takes months to answer
simple requests),”
July 15, 2019 Affidavit of Jason A. Czekalski ¶ 10 (Doc. No. 55,
at 5) (“Czekalski Aff.”); and (2) among lawyers he has
contacted, only Attorney Maggi has appeared to be interested in
assisting him, id. ¶ 10. 	Attorney Maggi’s affidavit states that
she was contacted by Czekalski (presumably by mail or phone)
“regarding the possibility of . . . assist[ing] him in one or
more” of his cases, Maggi Aff. ¶ 13, but at this point, she has
“no idea of the level of assistance/representation [she] may
ultimately provide,” Maggi Aff. ¶ 15. 	She asserts that
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exchanging mail with Czekalski has been slow and expensive for
him, that he has had problems with his prison telephone account,
and that she has not yet set up an attorney account with the
prison’s telephone services vendor. 	Id. ¶ 17. 	She avers she
needs to meet Czekalski in person before they can decide whether
she will provide the type of legal services he wants. 	Id. ¶ 18.
Discussion
I. 	Preliminary Injunction Standard
In ruling on a motion for a preliminary injunction, the
court “may accept as true ‘well-pleaded allegations [in the
complaint] and uncontroverted affidavits.’ . . . 	The [c]ourt
may also rely on otherwise inadmissible evidence, including
hearsay . . . .” 	Bos. Taxi Owners Ass’n v. City of Bos., 180 F.
Supp. 3d 108, 127 (D. Mass. 2016) (citations omitted). 	The
court may rule on a motion for a preliminary injunction on the
papers if it has before it “‘adequate documentary evidence upon
which to base an informed, albeit preliminary conclusion,’” and
the parties have been afforded “‘a fair opportunity to present
relevant facts and arguments to the court, and to counter the
opponent’s submissions.’” 	Campbell Soup Co. v. Giles, 47 F.3d
467, 470-71 (1st Cir. 1995) (citations omitted). 	Such an
opportunity has been afforded here.
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“‘A preliminary injunction is an extraordinary and drastic
remedy that is never awarded as of right.’” 	Peoples Fed. Sav.
Bank v. People’s United Bank, 672 F.3d 1, 8–9 (1st Cir. 2012)
(quoting Voice of the Arab World, Inc. v. MDTV Med. News Now,
Inc., 645 F.3d 26, 32 (1st Cir. 2011)). 	“‘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). 	Irreparable harm and the likelihood
of success weigh most heavily in the analysis. 	See Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008); Voice of
the Arab World, 645 F.3d at 32. 	The burden of proof is on the
movant. 	See Esso Std. Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18
(1st Cir. 2006).
II. 	Irreparable Harm
As to irreparable harm, Czekalski asserts he is suffering
harm, warranting the immediate relief he seeks, as prison
officers “are routinely violating his rights”; his ability to
file more lawsuits pro se is limited by his lack of resources;
and Attorney Maggi is “the one attorney he has been able to find
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[who] will help him.” 	July 22, 2019 Plf.’s Response to Defs.’
Obj. to Mot. Prelim. Inj. (Doc. No. 55), at 2.
“Irreparable harm most often exists where a party has no
adequate remedy at law.” 	Charlesbank Equity Fund II, Ltd.
P’ship v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
“A finding of irreparable harm must be grounded on something
more than conjecture, surmise, or a party’s unsubstantiated
fears of what the future may have in store.” 	Id.
There are layers of speculation and surmise in Czekalski’s
assertion of irreparable harm. 	As to his claims of routine
violations of his rights, Czekalski simply lists legal theories
or causes of action like “RLUIPA,” racketeering and consumer
protection statutes, and facts about prison conditions, like the
alleged “Preferential treatment of LGBT inmates,” “Massive
overcrowding” up to 240% of design capacity, “Mailroom
irregularities,” “Diet and food safety issues,” and “Additional
medical claims,” Czekalski Aff. ¶ 13, without offering
sufficient allegations to allow this court to determine whether
those issues form the basis of claims that are non-frivolous and
would survive this court’s screening. 	See 28 U.S.C. § 1915A.
And Czekalski’s assertions provide no evidence that damages
would not adequately compensate him for any rights-violations he
may suffer.
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Nor is there a non-speculative link between the suspension
of Attorney Maggi’s visitation privileges, and Czekalski’s
alleged inability to file and litigate such claims at an
effective pace. 	The suspension of visitation privileges will
end in September 2019. 	Czekalski, an active pro se litigant and
previously a practicing lawyer, has demonstrated an ability to
move for continuances or seek other relief as necessary to
accommodate delays resulting from his circumstances. 	In the
meanwhile, correspondence between Czekalski and Attorney Maggi
remains a means they could use to advance their negotiations or
transfer information. 	And the record indicates that Attorney
Maggi could appeal the temporary suspension under N.H. Code
Admin. R. COR 305.06,3 see Doc. No. 50-4, to limit its scope or
duration, or, she has been told that she could seek
clarification from the Warden as to whether she could visit an
inmate like Czekalski in her capacity as an attorney while she
3The cited administrative regulation provides as follows:
Persons desiring to re-enter [DOC] facilities, once being
removed or debarred, shall not re-enter said facilities
without filing a complaint pursuant to [N.H. Code Admin.
R.] Cor 200 or requesting the [DOC] commissioner . . . or
their designee to have the visits restored. 	The
commissioner or designee shall render a written decision
based on an assessment of future risks, rehabilitative
needs of the person under department control . . . and
security of the institution.
N.H. Code Admin. R. Cor 305.06.
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remains subject to a visitation restriction, see Maggi Aff. ¶ 9.
There is no indication that an appeal or request for
clarification, if pursued, would be fruitless. 	In short,
Czekalski has failed to demonstrate that he will likely suffer
any irreparable harm in the absence of a preliminary injunction.
Accordingly, the district judge should deny his motion for a
preliminary injunction.
III. Likelihood of Success
Czekalski also fails to make the requisite showing of a
likelihood of success on the merits. 	“To demonstrate likelihood
of success on the merits, plaintiffs must show ‘more than mere
possibility’ of success – rather, they must establish a ‘strong
likelihood’ that they will ultimately prevail.” 	Sindicato
Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699
F.3d 1, 10 (1st Cir. 2012) (per curiam) (citations omitted).
Here, plaintiff bases his motion on claims regarding his access
to the courts that he has not previously sought to add to this
case, and which arise from incidents involving other parties,
that are unrelated to the facts forming the basis of his
existing claims about his practice of Judaism. 	The standard
that applies for deciding whether to allow such new claims to be
joined with existing claims in one case, Fed. R. Civ. P. 18(a),
may not work in his favor here. 	Cf. George v. Smith, 507 F.3d
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605, 607 (7th Cir. 2007) (in general, “[u]nrelated claims
against different defendants belong in different suits,” to
“ensure that prisoners pay the required filing fees,” and to
prevent them from avoiding exposure to 28 U.S.C. § 1915(g)’s
“three strikes” provision).
Furthermore, to plead an access to the courts claim upon
which relief can be granted, Czekalski must allege that
defendants have actually injured him, with respect to his
ability to pursue a nonfrivolous claim that he has a right to
litigate. 	See Lewis v. Casey, 518 U.S. 343, 349-52 (1996).
Czekalski has asserted that his ability to file new cases pro se
has been limited by a number of factors connected with his
incarceration including his indigence and the failure of third
parties to respond to his inquiries, see Czekalski Aff. ¶ 10,
and he asserts that Attorney Maggi is the first attorney to
express an interest in his claims, and she provides him with his
first opportunity to address “these harms in a systematic
manner.” 	Id. ¶ 12. 	While the record suggests that Attorney
Maggi might be willing to help Czekalski, and that his ability
to finalize arrangements with her is slowed by the suspension of
her visitation privileges, the evidence does not demonstrate
that Czekalski has suffered any actual injury in his existing
cases, or that his ability to file new, non-frivolous claims is
presently being prevented, because of defendants’ actions.
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Finally, Czekalski has admitted that he did not complete
the process of exhausting his administrative remedies on his
claims regarding Attorney Maggi before raising them for the
first time in his motion for a preliminary injunction. 	The
Prison Litigation Reform Act (“PLRA”), however, generally
requires inmates to exhaust their available administrative
grievance remedies before filing new claims, see 42 U.S.C.
§ 1997e; Jones v. Bock, 549 U.S. 199, 211 (2007). 	Czekalski’s
failure to show a strong likelihood of success on the merits, in
addition to his failure to demonstrate irreparable harm,
warrants an order denying his motion for a preliminary
injunction.
Conclusion
For the foregoing reasons, the district judge should deny
the motion for a preliminary injunction (Doc. No. 46). 	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 appeal the district court’s
order. 	See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168
(1st Cir. 2016).
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__________________________
Andrea K. Johnstone
United States Magistrate Judge
August 8, 2019
cc: 	Jason A. Czekalski, pro se
Lawrence M. Edelman, Esq.
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