Koehl v. Bernstein, 10 Civ. 3808
Cite as: Koehl v. Bernstein, 10 Civ. 3808 (SHS) (GWG), NYLJ 1202639807372, at *1 (SDNY, Decided June 13, 2012)
10 Civ. 3808 (SHS) (GWG)
Magistrate Judge Gabriel W. Gorenstein
Decided: June 13, 2012
REPORT AND RECOMMENDATION
Plaintiff Edward Koehl, proceeding pro se, brought this action pursuant to 42 U.S.C. §1983, alleging that the defendants, who include employees of the New York State Department of Correctional Services ("DOCS") and the New York State Division of Parole, violated his constitutional rights when he was incarcerated at DOCS's Green Haven Correctional Facility. Approximately three months before he filed the instant case, a different case filed by Koehl in the Northern District of New York was dismissed because of Koehl's use of abusive language during that litigation. Nonetheless, Koehl resumed the use of such language in his submissions to this Court. In January 2012, the Court warned Koehl that his case would be dismissed if he engaged in any further abusive conduct. Koehl was not deterred by this warning. Accordingly, the Court issued an Order to Show Cause directing Koehl to show cause why this case should not be dismissed as a sanction for Koehl's use of abusive language. In response, Koehl simply recounted his complaints about adverse rulings and the conduct of the defendants, defendants' counsel and the Court, thereby suggesting that he perceives his behavior to be justified as long as he believes he has been personally wronged. The Court concludes that no sanction short of
dismissal will stop Koehl's improper conduct. Accordingly, this case should be dismissed with prejudice.
A. The Northern District Action
Koehl has brought at least 25 actions or appeals in state and federal courts. These include the instant action; Koehl v. McGee (E.D.N.Y. 09 Civ. 3280) (dismissed pursuant to 28 U.S.C. §1915A on August 11, 2009); Koehl v. McGee (2d Cir. No. 09-3969) (dismissed as frivolous on Jan. 7, 2010); and the 21 actions listed in Koehl v. Greene, 2007 WL 2846905, at *4 (N.D.N.Y. Sept. 26, 2007). An additional action, brought in the Northern District of New York, was dismissed for verbal abusiveness Koehl directed toward the presiding magistrate judge. See Koehl v. Greene, 2010 WL 669365, at *3 (N.D.N.Y. Feb. 16, 2010) ("the Northern District case"). Koehl's attacks on the magistrate judge included statements that he was "cowardly," "fascist," "twisted," and "a cheap, corrupt thug, who needs to hide behind a robe to be a tough guy, when in reality he is nothing but a coward who used to get his milk money taken away as a kid." Id. at *1 (brackets omitted). The Northern District did not initially issue a sanction in response to Koehl's abusive conduct but instead, on December 6, 2007, informed Koehl that while the court was "sympathetic with the stress and frustrations that accompany the litigation process, Plaintiff is advised that such language is never tolerable — by either counsel or pro se litigants." Id. at *3; 2008 WL 2690268, at *5 (N.D.N.Y. June 30, 2008). When Koehl's conduct continued, the court sanctioned Koehl by closing discovery. 2008 WL 2690268, at *5-*6. When Koehl continued to use abusive language, the Northern District ultimately concluded that no sanction short of dismissal would deter Koehl's conduct. 2010 WL 669365, at *3. The court dismissed the case in its entirety with prejudice on February 16, 2010, pursuant to its inherent
B. The Instant Case
Koehl initiated the instant action approximately three months later, on May 5, 2010. See Complaint, filed May 10, 2010 (Docket # 2). His amended complaint raises a host of contentions regarding improper treatment, including allegations of improper double-bunking, inadequate medical treatment, exposure to second-hand tobacco smoke, inadequate clothing, and claims that some of this conduct was retaliatory. See Amended Complaint, filed July 16, 2010 (Docket # 6) ("Am. Compl.") ¶¶1-14. Also included in the allegations were claims that his application for a commutation of his prison sentence was sabotaged by facility personnel and that in 2007 he was the subject of two retaliatory misbehavior reports at a prison he was housed at previously. Id. ¶14.
C. Koehl's Conduct Following the Filing of the Complaint
On September 22, 2010, defendants' counsel informed the Court that it had received a package from Koehl, which contained "two bags of colored and powdery material" that emanated a "distinct odor." See Endorsed Letter from Wesley E. Bauman to the Hon. Gabriel W. Gorenstein, filed Sept. 22, 2010 (Docket # 20) at 2. The Court ordered Koehl to respond to these allegations. Id. On September 30, 2010, Koehl wrote to the Court and explained that the bags contained "airborne creosote and rust powder." See Letter from Edward Koehl to the Hon. Gabriel W. Gorenstein, dated Sept. 30, 2010 (annexed as Ex. G to Affirmation of Jason M. Clark, dated Apr. 30, 2012 (Docket # 122) ("Clark Affirm.")) at 1 (capitalization omitted). In this letter, Koehl called defendants' counsel "evil" and a "sniveling, frightened coward." Id. at 1, 5.
On June 16, 2011, the Second Circuit affirmed the Northern District's dismissal of
Koehl's claims. See Koehl v. Greene, 424 F. App'x 61 (2d Cir. 2011). The Second Circuit noted in its opinion that "[t]he fact that Koehl was representing himself in this matter does not relieve him of his obligation to respect the dignity of the proceeding." Id. at 62.
On June 17, 2011, this Court issued a Report and Recommendation as to the defendants' motion to dismiss Koehl's amended complaint. The Court concluded that Koehl should be permitted to pursue the following claims: (1) due process claims based on his disciplinary proceedings; (2) First Amendment retaliation claims with regard to his transfer of facilities, executive clemency application, and certain misbehavior reports; and (3) Eighth Amendment claims based on his alleged inhalation of second-hand smoke and allegedly untreated back injuries. See Koehl v. Bernstein, 2011 WL 2436817, at *25 (S.D.N.Y. June 17, 2011), adopted by, 2011 WL 4390007 (S.D.N.Y. Sept. 21, 2011).
On July 5, 2011, Koehl wrote a letter in which he explained that he had received a misbehavior report for allegedly possessing the sentencing documents of another inmate, when in fact he had merely possessed published case law. See Letter from Edward Koehl to the Hon. Sidney H. Stein, dated July 5, 2011 (Docket # 126) at 2-3. Koehl said that his receipt of a misbehavior report was "another evil scheme devised by Defendant [William] Lee, the stinking, low-life, scumbag that he is." Id. at 3. Koehl instructed the Court to contact a DOCS law librarian and "ask if [Koehl is] bull-shitting this Court." Id.
On August 2, 2011, Koehl filed a motion for sanctions against defendants, alleging that the defendants destroyed or otherwise tampered with discoverable materials. See Notice of Motion, filed Aug. 2, 2011 (Docket # 62). Koehl opined that if the allegations in his motion were true, defendants' counsel should be disbarred and that "[a]nything less would be pissing in the face of my rights." Id. ¶14. On October 26, 2011, Koehl wrote a letter to the Court
declaring that defendants' counsel's refusal to waive certain affirmative defenses was "stupid." See Letter from Edward Koehl to the Hon. Gabriel W. Gorenstein, dated Oct. 26, 2011 (annexed to Order, filed Nov. 1, 2011 (Docket # 74)).
On November 17, 2011, this Court received a letter from Koehl, in which Koehl accused the undersigned of being "a gay basher and homophobic." Letter from Edward Koehl to the Hon. Gabriel W. Gorenstein, dated Nov. 11, 2011 (annexed to Order, filed Nov. 17, 2011 (Docket # 75)) at 1. Koehl also stated, "[W]hen some Jamician [sic] rapist scumbag was greasing up his dick and trying to force it into my ass or choking me while trying to force his dick into my mouth, you scratched you[r] ass and did nothing." Id.
On January 18, 2012, Koehl sent a letter to the Court in which he stated, "[Y]ou are going to once again micky mouse the laws and constitution that you despise to protect the one percent movement that you and your fellow government worker[s] are part of. Obviously, the rich cannot do what they are doing without having drones in place throughout the government." Letter from Edward Koehl to the Hon. Gabriel W. Gorenstein, dated Jan. 18, 2012 (annexed to Order, filed Jan. 27, 2012 (Docket # 84)) ("1/18/12 Letter") at 2.
On January 19, 2012, Koehl sent a letter to the Court in which he wrote, "You are never going to stop screwing me over. Honestly, the more I ruminate on matters the more I think of you in the negative. I honestly believe you surpassed being biased to be more appropriately considered pure evil. You disgrace the bench with every breath you take." Letter from Edward Koehl to the Hon. Gabriel W. Gorenstein, dated Jan. 19, 2012 (Docket # 85). On January 26, 2012, he wrote the Court saying, "[Y]ou perverted the rules of this Court," and, referring to a request for an extension sought by defendants and granted by the Court, that only the undersigned "could swallow such crap." Letter from Edward Koehl to the Hon. Gabriel W.
Gorenstein, dated Jan. 26, 2012 (Docket # 89)
On January 27, 2012, this Court issued an order ruling on Koehl's request for an extension of his time to reply to the defendants' opposition to his motion to amend. See Order, filed Jan. 27, 2012 (Docket # 84) ("1/27/12 Order"). The Court noted that his January 18, 2012 Letter "contain[ed] an intemperate attack on the undersigned." Id. The Court added:
Such personal attacks have appeared in plaintiff's past submissions in this case, and the Court will not recount them here. The Court makes note of the attacks in the January 18 letter in order to warn plaintiff that if in the future plaintiff engages in any abusive conduct or makes personal attacks on the undersigned or any other officer of the Court such as opposing counsel, the complaint in this case may be dismissed and/or other sanctions imposed based on the Court's inherent power. Accordingly, such attacks, abusive conduct and intemperate language must cease immediately.
In a letter dated February 15, 2012, Koehl accused defendants' counsel of "lying to cover his repugnant behavior" and referred to him as "stupid," "incompetent," a "complete idiot," and a "disgrace." See Letter from Edward Koehl to the Hon. Sidney Stein, dated Feb. 15, 2012 (annexed as Ex. A to Clark Affirm.).2 On February 16, 2012, Koehl wrote to defendants' counsel and accused him of having improperly influenced this Court. See Letter from Edward
Koehl to Jason Clark, dated Feb. 16, 2012 (annexed as Ex. D to Clark Affirm.) ("You already own Gorenstein, what more do you need?"). By implication, Koehl accused this Court of complicity in the alleged impropriety.
On March 2, 2012, the Court issued an Order regarding discovery. See Order, filed Mar. 2, 2012 (Docket # 104). In response, Koehl wrote to Judge Stein referring to the "micky mousing Judge Gorenstein does" and stating that "[i]t is obvious to even a half retarded monkey that Gorenstein is again trying to screw me over." See Letter from Edward Koehl to the Hon. Sidney H. Stein, dated Mar. 9, 2012 (Docket # 106). On April 9, 2012, Koehl wrote a letter to Judge Loretta Preska in which he stated, "Gorenstein was literally stupid enough to threaten me in writing for filing" a complaint regarding the undersigned. See Letter from Edward Koehl to the Hon. Loretta A. Preska, dated Apr. 9, 2012 (Docket #116) ("4/09/12 Letter to Judge Preska"). Koehl continued, "[I]t appears that Gorenstein is again attempting to screw me over." Id.
On the same date, Koehl also wrote a letter to Judge Stein. See Letter from Edward Koehl to the Hon. Sidney H. Stein, dated Apr. 9, 2012 (annexed to 4/09/12 Letter to Judge Preska) ("4/09/12 Letter to Judge Stein"). Included in this letter, which complained about actions of the undersigned, was the following sentence:
Gorenstein is the personification of why Jews such as myself are called KIKES. Id. (capitalization in original).
D. The Order to Show Cause
On April 26, 2012, this Court ordered Koehl to show cause why this case should not be dismissed, or other sanctions imposed, in light of his repeated use of abusive and intemperate language. See Order to Show Cause, filed Apr. 26, 2012 (Docket #119) ("4/26/12 Order to
Show Cause"). As permitted by the Order to Show Cause, defendants' counsel, Jason Clark, submitted an affidavit to the Court, dated April 30, 2012, along with supporting documents, detailing improper conduct by Koehl in this litigation. See Clark Affirm.
On May 4, 2012, Koehl submitted an affidavit in connection with a discovery motion against defendants. See Reply Affidavit, filed May 4, 2012 (Docket # 120) ("5/4/12 Aff."). Koehl wrote, "Gabriel Gorenstein, MJ, callously and deliberately LIED to protect the state government defendants from being sanctioned." Id. ¶2. He added, "[S]ince Gorenstein did nothing when a piece of crap Jamaican immigrant, rapist, jerked off on my face while choking me, I am more than certain that Gorenstein will also sweep these acts of sabotage under the rug." Id. ¶3. In the cover letter accompanying the affidavit, Koehl wrote, "Gorenstein constantly lies and falsifies his orders to protect the state government defendants. He should literally be in a prison cell until hell's representative comes and gets him." Letter from Edward Koehl to the Hon. Sidney H. Stein, dated Apr. 29, 2012 (annexed to 5/4/12 Aff.). In a letter dated May 11, 2012, Koehl wrote that the undersigned "once again proved to even a one eyed, half retarded monkey smoking crack, that he is and will continue to be biased and vindictive in contradiction of the First Amendment." See Letter from Edward Koehl to the Hon. Sidney H. Stein, dated May 11, 2012 (Docket # 121).
By letter dated May 18, 2012, Koehl responded to the Court's Order to Show Cause. See Letter from Edward Koehl to the Hon. Gabriel W. Gorenstein, dated May 18, 2012 (Docket # 124) ("5/18/12 Letter"). In the letter, Koehl did not address the merits of the Order to Show Cause or acknowledge that his conduct had ever been improper. Instead, he gave an account of his own claims and repeated, sometimes in coarse and abusive language, his assertion that the Court harbors bias against him. See 5/18/12 Letter at 4 (asserting that the undersigned had
"openly condone[d] rape, sodomy and unconstitutional behavior"); id. ("It appears that condoning defendants' actions is your own personal form of gay bashing…."); id. ("[You] ignored my claims and fabricated a cock & bull story in a vain attempt to protect your integrity."); id. at 8 ("I even think that you applauded when becoming aware that Rohan Campbell, choked me and jerked off all over my face.").
II. GOVERNING LAW
Federal district courts have "inherent authority to sanction parties appearing before [them] for acting in bad faith, vexatiously, wantonly, or for oppressive reasons." Sassower v. Field, 973 F.2d 75, 81-82 (2d Cir. 1992) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 45-46 (1991)); accord Mickle v. Morin, 297 F.3d 114, 125 (2d Cir. 2002). Accordingly, courts have "the ability to fashion an appropriate sanction for conduct which abuses the judicial process." Chambers, 501 U.S. at 44-45. One available sanction is dismissal with prejudice of a plaintiff's claims. Id. at 44 (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08 (1947)). District courts may exercise this power sua sponte. Id. (citing Link, 370 U.S. at 630-31). Before imposing such a sanction, however, "the court must afford the person it proposes to sanction due process, i.e., notice and opportunity to be heard." Mickle, 297 F.3d at 126 (citation and internal quotation marks omitted).
Among the range of possible sanctions, "dismissal with prejudice is a harsh remedy to be used only in extreme situations." Bobal v. Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990); see also S. New Eng. Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 144 (2d Cir. 2010) (A dismissal sanction "is a 'drastic remedy' generally to be used only when the district judge has considered lesser alternatives.") (citation omitted). Nevertheless, the sanction of dismissal "must be available to the district court in appropriate cases, not merely to penalize those whose conduct
may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent." Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (per curiam). The Second Circuit permits a district court to invoke its inherent power to sanction a plaintiff with dismissal only upon "a finding of bad faith." DLC Mgmt. Corp., 163 F.3d at 136; see also Bobal, 916 F.2d at 764 (dismissal is only appropriate if "a court finds 'willfulness, bad faith, or any fault' on the part of the [plaintiff]") (citation omitted). Such a finding of bad faith must be supported by "clear evidence and must be accompanied by a high degree of specificity in the factual findings." Mickle, 297 F.3d at 125-26 (citation, quotation marks, and ellipsis omitted).
The Court has received thousands of submissions from hundreds of pro se prisoners. None has even remotely approached the level of invective wielded by Koehl in this action. As an experienced litigator, Koehl undoubtedly has been aware for many years of the proper conduct he must employ with respect to the Court and adversaries. Koehl's responsibilities were made crystal clear to him not only when the Northern District warned him about his conduct but also when it actually dismissed his action for using abusive language in submissions to the court and opposing counsel. See Koehl, 2010 WL 669365 at *3. That dismissal, later affirmed by the Second Circuit, occurred before the instant case was filed.
In light of these facts, the Court finds that Koehl acted in bad faith, wantonly and vexatiously when he engaged in his repeated verbal abuse directed primarily at the undersigned, and also at defendants' counsel. Koehl was on notice that this conduct was unacceptable and sanctionable by virtue of the warnings given in December 2007 in the Northern District case, the discovery sanction imposed in June 2008 in that case, and the February 2010 dismissal in the
that case. Koehl's bad faith was made all the more manifest in light of his conduct after January 27, 2012. On that date, this Court ordered Koehl to cease immediately his abusive conduct (after he referred to the Court as "pure evil," among other things) and warned him that further such conduct could result in dismissal of this case. See 1/27/12 Order. Koehl nonetheless continued his use of intemperate and vitriolic language, which included his directing an inexcusable ethnic epithet at the Court when he asserted that "Gorenstein is the personification of why Jews such as myself are called KIKES." 4/09/12 Letter to Judge Stein (capitalization in original).3 Koehl's repeated assaults on the dignity of court proceedings, both before and after he received a warning from this Court, were plainly deliberate and malicious.
As for the notice requirement, see Mickle, 297 F.3d at 126, the Court gave notice to Koehl by way of the Order to Show Cause that it was considering dismissing this action based on his conduct and offered Koehl an opportunity to explain why his actions did not warrant the sanction of dismissal, see 4/26/12 Order to Show Cause. Koehl submitted a response to the Order to Show Cause, see 5/18/12 Letter, and thus was fully aware of the Court's consideration of dismissal of this action.
Turning to the issue of what sanction should be imposed, the Court has carefully considered various potential sanctions it could impose for Koehl's conduct. Were the above-
described incidents the first time Koehl had engaged in such conduct, and had they occurred prior to any warning given by a court, this Court might have been open to the possibility that a sanction less than dismissal would be warranted. We do not write on a clean slate, however, in light of the similar conduct by Koehl in the Northern District case. In the Northern District case, Koehl at first was warned to stop his verbal abuse and later received a discovery sanction — specifically, an order denying him any further discovery. Both were completely ineffective at stopping his improper conduct. The Northern District ultimately dismissed Koehl's case, and this too had no effect on deterring his misconduct before this Court. Plainly, there is no reason to believe that a litigation sanction short of dismissal — such as denying Koehl's pending motion to amend or terminating his ability to obtain discovery — would do anything to alter his conduct in the future in this case. A fine would not be effective inasmuch as he is proceeding in forma pauperis. As noted by the Northern District, "[p]laintiff is serving a term of twenty-two to forty-five years imprisonment, so charging him with criminal contempt would likewise be an ineffective incentive for Plaintiff to abate his abusive conduct." 2010 WL 669365, at *3. In the end, as was true in the Northern District, "[t]he Court is left with the inescapable conclusion that the most serious of sanctions must be imposed, viz., dismissal of this action." Id. (citing Nat'l Hockey League, 427 U.S. at 643).
The Court's conclusion is further supported by Koehl's response to the Order to Show Cause. The response, inter alia, includes various outlandish and intemperate accusations of bias. See 5/18/12 Letter at 4 ("you…openly condone rape, sodomy, and unconstitutional behavior if such is administered via government employees"); id. ("condoning defendants' actions is your own personal form of gay bashing"); id. at 4 ("you fabricated a cock & bull story in a vain attempt to protect your integrity"); id. at 5 ("your actions are motivated for [sic] your thirst for
revenge"); id. at 1 ("once you started subverting matters to assist the state government defendants, you had no choice but to continue on said course, regardless of the merits or facts"). It also complains about prior court rulings and describes plaintiff's perception of his treatment in this litigation. Plaintiff's response by itself shows the inutility of any lesser sanction than dismissal. Indeed, the Second Circuit in upholding the dismissal of the Northern District case faulted Koehl's response to the motion seeking to dismiss that case as follows: "Rather than attempt to explain his inappropriate statements, however, Koehl devoted his opposition papers to further allegations of bias and corruption on the part of the magistrate judge." Id. The same is true here.
Koehl's response to the Order to Show Cause also discusses plaintiff's medical complaints. But, as was noted by the Second Circuit in Koehl's appeal of the Northern District decision in which he apparently submitted similar evidence of his medical condition, "[a]lthough Koehl no doubt suffers from serious medical ailments, he has failed to establish that these conditions were responsible for the abusive language in his court filings." Koehl, 424 F. App'x at 63.
Plaintiff mistakenly asserts that the Order to Show Cause is based exclusively on his use of the religious epithet. 5/18/12 Letter at 6. In fact it is based on the entirety of his conduct before this Court. His response, however, reflects that he refuses to accept that he has ever done anything improper. It concludes by stating, "I even think that you applauded when becoming aware that Rohan Campbell [another inmate], choked me and jerked off all over my face." Id. at 7. The Court finds that Koehl will continue his verbal abuse in this case if any sanction short of dismissal is imposed.
Dismissal of Koehl's claims may also have the benefit of dissuading others from
engaging in similar litigation abuse. See generally Nat'l Hockey League, 427 U.S. at 643 ("[T]he most severe in the spectrum of sanctions…must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent."). And it can only be hoped that this dismissal will deter Koehl himself from replicating his behavior if he were to file any lawsuit in the future.4
The Northern District case not only provides strong evidence that a sanction less than dismissal will do nothing to deter Koehl's misconduct, it also provides precedent that dismissal of a party's claims is an appropriate sanction for a party's use of abusive language during the course of the litigation. Other cases have similarly imposed the sanction of dismissal for abusive language. See, e.g., Bellet v. City of Buffalo, 2011 WL 6934824, at *4 (W.D.N.Y. Dec. 30, 2011); Lynn v. Roberts, 2006 WL 2850273, at *8 (D. Kan. Oct. 4. 2006). Because Koehl's conduct has been malicious and in bad faith, and because no other sanction will prevent its recurrence, the same sanction of dismissal is warranted here.
For the foregoing reasons, this case should be dismissed with prejudice and all pending motions deemed moot.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. §636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Sidney H. Stein, and to the undersigned, at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Stein. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
Dated: June 13, 2012
New York, New York
1. At about this time, Koehl sent a copy of a judicial misconduct complaint regarding the undersigned to Judge Stein by means of a cover letter bearing the docket number of this case, see Letter from Edward Koehl to the Hon. Sidney H. Stein, dated Jan. 30, 2012 (Docket # 91)), even though he had been informed on multiple occasions that any such complaints were to be made to the United States Court of Appeals and not to the district court, see Order, filed Feb. 8, 2011 (Docket # 51); Order, filed Nov. 17, 2011 (Docket #75). Koehl subsequently made a motion for recusal of the undersigned, see Notice of Motion, filed Feb. 17, 2012 (Docket # 96), which was denied, see Order, filed Feb. 22, 2012 (Docket # 99).
2. At some point in 2012, Koehl began addressing virtually all letters relating to this case to Judge Stein. Because the case had been referred to the undersigned, see Order, filed May 19, 2010 (Docket # 3), all such letters were handled by the undersigned, not by Judge Stein.
3. Koehl's inclusion of the phrase "such as myself" in this sentence — apparently referring to the fact that he has identified himself as Jewish, see Koehl v. Greene, 2008 WL 4822520, at *2 (N.D.N.Y. Oct. 31, 2008) — does nothing to lessen the force of this epithet nor the contumaciousness of its use. Because of the irrelevancy of Koehl's own self-identification, the phrase can be grammatically parsed as follows: "Gorenstein is the personification of why Jews…are called KIKES." For this reason, the Court does not accept Koehl's assertion that he was "CALLING MYSELF [Koehl] A KIKE," 5/18/12 Letter at 3 (capitalization in original), and not the undersigned. To the contrary, the quoted sentence identifies the undersigned as being the "personification" of that epithet.
4. Indeed, Koehl has filed a motion to amend in which he seeks to add claims to this case that arose after the filing of his lawsuit. See Notice of Motion, filed Nov. 30, 2011 (Docket # 77). Were the Court to grant the motion to amend and then dismiss this case with prejudice, it would prevent Koehl from bringing these new claims (though Koehl will presumably always be able to seek injunctive relief with respect to any medical or other ongoing issues no matter what claims are dismissed here). Nonetheless, the Court believes that it would be sufficient to dismiss the existing claims without precluding other claims. Accordingly, the motion to amend should not be granted in conjunction with a dismissal. Obviously, such a ruling would not prevent a defendant in a future case from challenging any new claims on the merits or in any other way, such as by means of a procedural defense.
Decision to Toss Abusive Inmate's Lawsuit Upheld
Decision to Toss Abusive Inmate's Lawsuit Upheld