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Razzoli v. Secretary of Navy

March 29, 2000

KEVIN RAZZOLI, PLAINTIFF,
v.
SECRETARY OF NAVY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(JUDGE VANASKIE)

MEMORANDUM

Kevin Razzoli filed this civil rights action on September 18, 2006. At the time, he was confined at the Lackawanna County Prison ("LCP"), Pennsylvania. He has since been transferred to the United States Penitentiary at Allenwood (USP-Allenwood), Pennsylvania. The complaint, as submitted by Razzoli, is titled "Complaint/Brief in Support 42 U.S.C. § 1983/ Bivens Action & Request for Permanent Injunction 42 U.S.C. § 1985." (Dkt. Entry 1.) Named as Defendants are the following Federal employees: the Secretary of the Navy; former United States Attorney General Gonzalez; United States Parole Case Analyst Lynne Jenkins; and United States Probation Officer William McCarthy. Also named as Defendants are the Lackawanna County Prison ("LCP") and Janine Donate, Warden at LCP, as well as the Scranton Police Department and Scranton Police Officer Dennis Lukasewicz.*fn1 Razzoli's pro se pleading sets forth claims related to (1) his arrest by the Scranton Police Department following his fourth release on parole; (2) his resulting confinement in the Lackawanna County Prison; and (3) the subsequent revocation of parole by the USPC. In this Memorandum, the Court will address several of the motions pending in this action.

I. Allegations in the Complaint

The complaint submitted by Razzoli is rambling and, in many parts, unintelligible. However, in construing the submission liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), the complaint appears to contain the following claims. Razzoli asserts that he was falsely arrested by the Scranton Police Department pursuant to a Pennsylvania statute that does not exist. He maintains that United States Probation Officer William McCarthy and USPC employee Lynne Jenkins authorized his detention at the Lackawanna County Prison knowing the LCP to be unsafe. He further alleges that Jenkins refused to conduct a local revocation hearing, and that McCarthy failed to provide proper details regarding the state charges to the USPC. He claims that LCP and Warden Donate were deliberately indifferent to his safety because the double bunk beds at the prison do not have safety ladders to access the top bunk. As a result, he claims to have suffered a broken foot and was made to wait nine (9) days for medical attention. He complains about the adequacy of the LCP law library and how he was not afforded the opportunity to contact the USPC. He also contends that Warden Donate refused to answer his grievances, thereby denying him access to the courts. The only other claims which appear to be asserted by Razzoli are that the Secretary of the Navy has not provided him with a naval clemency hearing while confined at the LCP. Razzoli requests declaratory, injunctive and monetary relief.

II. Preliminary Motions

A. Motions for Counsel

Previously, by Memorandum and Order dated August 28, 2007, the Court denied a motion filed by Razzoli seeking the appointment of counsel in this matter. (Dkt. Entry 59.) Since that time, he has filed two additional documents that the Clerk of Court has docketed as requests for counsel. (Dkt. Entries 67, 79.) In reviewing these filings, it is clear that the first document titled a "Request for Political Prisoner/Asylumn [sic] Statis [sic] Hearing" (Dkt. Entry 67), is not a request for counsel. Rather, Razzoli seeks political prisoner status and released to Venezuela. Because Razzoli challenges the fact and/or duration of his confinement, this filing will be dismissed, without prejudice, to any right Razzoli may have to pursue this issue in a habeas corpus action. See Preiser v. Rodriguez, 411 U.S. 475 (1973).

The second filing is a consolidated motion and brief in support of the appointment of counsel. Razzoli seeks counsel based upon his allegations that (1) he is not versed in the law; (2) his efforts to access the courts in this case are being interfered with due to mail tampering; and (3) he is being subjected to "S.E.R.E. tactics & related electronic devices against his will." (Dkt. Entry 79.) He also contends that he is being illegally confined and subjected to racial injustices.

The standards applied by the Court in addressing a request for the appointment of counsel in a civil rights matter were thoroughly set forth in the Memorandum and Order of August 28, 2007, and will not be repeated herein. (Dkt. Entry 59.) Whether Plaintiff's case has some arguable merit in fact or law has yet to be determined. Presently pending is a ripe motion to dismiss/for summary judgment filed by the United States Defendants. A motion for summary judgment has also been filed by the Scranton Police Department, but not yet opposed by Razzoli. No dispositive motion has been filed by the Lackawanna County Defendants. It is abundantly clear that Razzoli is experiencing no trouble communicating with this Court. He is an accomplished litigator who peppers the Court with constant filings, all setting forth pages of argument and citation to pertinent case law. There is no question, based upon his filings, that he does have regular access to a law library.

In addition, any challenges to the fact or duration of his confinement are not legitimate arguments in support of the appointment of counsel, as such claims are not properly pursued in this civil rights matter. See Preiser, 411 U.S. at 489. Further, his attempts to add new claims to this action via the instant motion are also inappropriate. For these reasons, as well as those previously set forth in the Memorandum and Order of August 28, 2007, the request for counsel will be denied without prejudice.

B. Motion to Amend

Also pending is Razzoli's motion to amend the complaint. (Dkt. Entry 73.) Rule 15(a) of the Federal Rules of Civil Procedure provides this Court with discretion to grant or deny leave to amend a pleading. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971). The rule, however, advises that "leave shall be freely given when justice so requires," Fed. R. Civ. P. 15(a), and, in general, courts liberally permit parties to amend their pleadings. See Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir. 1984); Cornell & Co. v. Occupational Safety & Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978).

Despite this general liberality, the Supreme Court enumerated specific factors that may justify the denial of leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962). These factors include "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, [and] futility of amendment." Id. at 182; see also Bailey v. United Airlines, 279 F.3d 194 (3d Cir. 2002). A denial of leave to amend where none of these factors is present is an abuse of discretion. Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000). "It is well-settled that prejudice to the non-moving party is the touchstone for the denial of an amendment." Cornell & Co., 573 F.2d at 823.

The motion submitted by Razzoli is basically incoherent with the exception that he wants to add Racketeering Act claims and name new Defendants, which include various federal probation officers, FBI and CIA agents and employees of the United States Penitentiary of Allenwood, whom he alleges are using "C.I.A. and F.B.I. equipment to retaliate & impede court action, also medical and dental malpractice." (Dkt. Entry 73 at 2.) Clearly, these issues are well outside the realm of the instant action. Not only are new issues and new Defendants proposed, but also undue prejudice would certainly result to the existing Defendants if such an amendment to the existing complaint were permitted. Accordingly, the motion will be denied without prejudice to any right Razzoli may have to pursue these claims in a separate action.

C. Motion for Recusal

Plaintiff filed a motion on April 30, 2007, requesting the recusal of Judge Edwin Kosik from this case. (Dkt. Entry 44.) This motion is obviously now moot in light of the Order issued on September 11, 2007, wherein Judge Kosik recused himself and the matter was reassigned. (Dkt. Entry 63.) In reviewing the motion for recusal, Plaintiff also appears to challenge his confinement pursuant to the parole detainer/resulting confinement following his parole violation in Lackawanna County. He requests this Court to issue an order to release him. Again, for reasons previously set forth, this issue is not properly pursued in a civil rights action. Any challenge to the revocation of parole must be raised in a habeas corpus petition. See Preiser v. Rodriguez, 411 U.S. 475 (1973). As such, the instant motion will be denied.

D. Motion for Court-ordered Medical Treatment

Plaintiff requests the Court to order medical evaluations to be performed by a neurologist, oncologist, urologist and cardiologist. In support of his requests, he cites to (1) problems he has experienced in the past, specifically a removal of a tumor while in the United States Navy; (2) a family history of medical problems; and (3) current medical symptoms he is experiencing while confined at USP-Allenwood. (Dkt. Entry 53.)

Federal Rule of Civil Procedure 35(a) provides a method by which a court can order a physical or mental examination of a party when mental or physical condition is in controversy in the lawsuit pending before the Court. In the instant action, the conditions of which Razzoli complains are not at issue in the instant action. The only medical issue in this case is the alleged inadequate medical care at the LCP for injury to Razzoli's foot. In the motion Razzoli sets forth allegations regarding the lack of medical treatment for conditions arising from the "unauthorized and unconsentual subjection to behavoriol [sic] modificational programs desigened [sic] for enemy combatants and spys [sic]" by employees at USP-Allenwood." (Id. at 4.) These matters are not before the Court in the pending action.*fn2 Accordingly, the request for court-ordered medical evaluations will be denied.

E. Motions for Default

On July 13, 2007, Plaintiff filed a document entitled "Motion & Brief in Support for Entry of Default Judgment" under Federal Rule of Civil Procedure 55(a). (Dkt. Entry 55.) The motion fails to identify which Defendant(s) have allegedly defaulted. More importantly, the entire basis for the request for entry of default is the alleged S.E.R.E. tactics being used against Razzoli by employees at U.S.P. Allenwood. As set forth above with regard to other motions filed in this action, Razzoli contends that U.S.P. Allenwood employees are impeding his thought process via electronic devices causing all sorts of physical and mental harm to him.

Pursuant to Rule 55(a), entry of default is appropriate when a party has failed to plead or otherwise defend and this fact is set forth in an affidavit submitted to the Court. In the instant action, Razzoli's request is actually one for injunctive relief, and not entry of default. Further, he has not submitted the affidavit required by Rule 55(a).

To the extent the Court were to construe his motion as one for preliminary injunctive relief, it would be denied. Preliminary injunctive relief is extraordinary in nature and should issue in only limited circumstances. See American Tel. and Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994), cert. denied, 514 U.S. 1103 (1995). Moreover, issuance of such relief is at the discretion of the trial judge. Orson, Inc. v. Miramax Film, Corp., 836 F. Supp. 309, 311 (E.D. ...


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