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. 17-cv-557-JL
William Wrenn, (former) New Hampshire Department
of Corrections (“DOC”) Commissioner; Christopher
Kench, DOC Director of Training and Security;
Paula Mattis, DOC Director of Medical and Forensic
Services; and Jon Fouts, DOC Director of Security
REPORT AND RECOMMENDATION
Before the court is plaintiff Jason Czekalski’s motion for
a preliminary injunction (Doc. No. 59). 	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 says she is in an
“exploratory phase” of an attorney-client relationship with
Czekalski, see July 12, 2019 Aff. of Katherine Maggi ¶ 15 (Doc.
No. 67, at 2) (“Maggi Aff.”). 	Czekalski seeks an order
requiring defendants to grant him 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. 59, 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. 62), has been referred to the
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undersigned magistrate judge for a report and recommendation.1
See June 19, 2019 Order.
Background
Plaintiff filed this case pro se, asserting in the
operative complaint that defendants, acting in their individual
or official capacities, have blocked his access to a thicker
mattress, delayed his receipt of prescribed medications, denied
him his prescribed dosage of ibuprofen and acetaminophen, denied
him a prescription inhaler, altered the timing of his morning
medication in a manner that interferes with his prayer schedule,
failed to provide him with a free replacement for his broken
eyeglasses, and caused a delay in the timing of a diagnostic
procedure, in violation of his federal constitutional rights.
Plaintiff has moved twice to amend the operative complaint,
adding facts concerning restrictions on his access to a weight
room that he asserts violate the Americans with Disabilities
Act. 	Those motions to amend (Doc. Nos. 32, 37) remain pending.
1Czekalski has filed the same motion for a preliminary
injunction in each pending case that he has filed in this court.
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. 18-cv-592-PB (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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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 whose brother Gregory
Maggi is another NHSP inmate. 	The parties’ exhibits describe
the circumstances leading up to the present restrictions on
Attorney Maggi’s visitation privileges. 	Attorney Maggi had been
on her brother’s approved list of family visitors, when she 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 she
needed 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 the prison policies at issue, see id. ¶¶ 5, 8, and
then denied her next requests to visit her brother. 	When she
produced a notice of appearance she intended to file in her
brother’s case in state court, a corrections officer told
Attorney Maggi that the copy of the notice did not show that she
represented him in a pending case. 	See id. ¶¶ 6-7.
Prison officials assert that Attorney Maggi reacted
unprofessionally in that situation. 	The June 14, 2019 letter
from NHSP Warden Michelle T. Edmark to Attorney Maggi (Doc. No.
62-4) states that Attorney Maggi used profanity and was
disrespectful of NHSP staff in the NHSP lobby in the presence of
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other visitors, including children, when she was denied the
opportunity to meet with her brother in her capacity as an
attorney. 	The Warden’s letter suspended Attorney Maggi’s NHSP
visitation privileges for ninety days, effective on June 14,
2019. 	This court assumes without deciding that the 90-day
suspension restricts Attorney Maggi’s ability to visit any
inmate at the NHSP while that suspension 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 in an affidavit that,
due to the extreme lack of resources and the obstacles
inherent [in 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),
(1) he cannot litigate all of his claims “in a timely manner”;
and (2) among lawyers he has attempted to contact, Attorney
Maggi is the first who has appeared to be interested in the
conditions in which inmates live and may provide “our first real
opportunity to address these harms in a systematic manner,”
July 15, 2019 Affidavit of Jason A. Czekalski ¶¶ 10-12
(“Czekalski Aff.”), Doc. No. 69, at 4.
Attorney Maggi’s affidavit further explains that she was
contacted by Czekalski “regarding the possibility of . . .
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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 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 could and would 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
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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.
“‘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’s reply to defendants’
objection asserts that prison officers “are routinely violating
his rights”; that his ability to file more lawsuits is limited
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by his lack of resources; and that Attorney Maggi is “the one
attorney he has been able to find [who] will help him.” 	July
22, 2019 Plf.’s Response to Defs.’ Obj. to Mot. Prelim. Inj.,
Doc. No. 69 at 2-3.
“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
capable of surviving this court’s screening. 	See 28 U.S.C.
§ 1915A. 	And Czekalski’s assertions provide no evidence that
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damages would not adequately compensate him for any rights-
violations he may suffer.
Nor is there a non-speculative link between the 90-day
suspension of Attorney Maggi’s visitation privileges, and
Czekalski’s ability to file and litigate his claims. 	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 305.06,2 see
Doc. No. 62-4, to limit its scope or duration, or, she has been
told, see Maggi Aff. ¶ 9, she could seek clarification from the
2The 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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Warden as to whether she may visit other inmates in her capacity
as an attorney while she remains subject to a visitation
restriction. 	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. 	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.
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Cf. George v. Smith, 507 F.3d 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 cases pro se,
“in a timely manner,” 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 could
provide him with an opportunity to address “harms in a
systematic manner.” 	Id. ¶ 12. 	While the record suggests that
Attorney Maggi could be willing to help Czekalski, and that his
ability to finalize arrangements with her and obtain the benefit
of her services 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
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ability to file new, non-frivolous claims is presently being
prevented, because of defendants’ actions.
Finally, Czekalski has indicated that he did not complete
the process of exhausting his administrative remedies on his
claims before raising them for the first time in his motion for
a preliminary injunction. 	See Doc. No. 59, at 2. 	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 of his access to
the courts claims in this case, coupled with his failure to
demonstrate any irreparable harm while he exhausts his remedies
and litigates this action, warrants an order denying his motion
for a preliminary injunction here.
Conclusion
For the foregoing reasons, the district judge should deny
the motion for a preliminary injunction (Doc. No. 59). 	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
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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
Lawrence M. Edelman, Esq.
Seth M. Zoracki, Esq.
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