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Czekalski v. Hanks

United States District Court, D. New Hampshire

August 8, 2019

Jason A. Czekalski
v.
Helen Hanks, New Hampshire Department of Corrections Commissioner; and James Daly, New Hampshire State Prison Chaplain

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE.

         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.

         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, 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 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 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.

         “‘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. ...


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