McMahon v. Napolitano et al

Filing 61

ORDER denying 52 Motion for Preliminary Injunction. For the reasons stated in the attached Memorandum and Order, plaintiff's motion for preliminary injunction is denied. Ordered by Judge Kiyo A. Matsumoto on 12/8/2014. (Gong, LiJia)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------X
JOYCE A. McMAHON,
Plaintiff,

MEMORANDUM & ORDER
12-CV-5878(KAM)(RML)

-againstJEH JOHNSON, Secretary U.S.
Department of Homeland Security,
et al.,
Defendant.
----------------------------X
MATSUMOTO, United States District Judge:
On September 26, 2014, plaintiff Joyce A. McMahon
moved for preliminary injunction against defendant Jeh Johnson,
Secretary of the U.S. Department of Homeland Security (“Homeland
Security”) and non-party Eric H. Holder, Jr., Attorney General
of the United States. (Pl.’s Mot. for Prelim. Inj. (“Mot.”), ECF
No. 52.) For the reasons set forth below, plaintiff’s motion is
denied.
BACKGROUND
On November 26, 2012, plaintiff commenced this pro se
action alleging employment discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17 (“Title VII”) and the Age
Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634
(“ADEA”). Plaintiff alleges discrimination in connection with
the agency’s decision to rescind her conditional job offer for

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an auditor position in 2008. (Compl., ECF No. 1, at 4; Def.’s
Mem. Of Law in Opp. To Pl.’s Mot. for Prelim. Inj. (“Def.’s Opp.
Mem.”), ECF No. 55.)
DISCUSSION
Plaintiff, who now resides in Colombia, seeks an Order
to enjoin the defendant and the United States Attorney General
from “additional acts of organized gang stalking, also formerly
known as Counter Intelligence Program, including all forms of
interference in [her] private and public life.” (Mot., ECF No.
52, at 1.) Plaintiff also alleges “organized gang stalking” by
the “Counter Intelligence Program of the Federal Bureau of
Investigation.” (Statement of Joyce Andrea McMahon Sept. 26,
2014 on Gang Stalking Victimization (“Statement”), ECF No. 521.) Specifically, plaintiff alleges that she has recently
experienced the following:


Global employment blacklisting



Employment offer followed by malicious
harassment with obvious intent to hire to
defame



Constant physical and electronic stalking



Frequent photographing in public spaces



Interference in email correspondence



Interference in telephone over internet
communications



Interference in Skype communications

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

Targeting [her] computer for wi-fi
interference



Illegal drugging without [her] knowledge or
consent with the intent to induce paranoia



Neutralization of on-line communications
including, but no limited to Facebook



Impromptu interviews intended to gather
information to be used to intercept
productive activities



Staged “friends” and acquaintances used to
gather information to intercept any and all
forms of sustenance



Attempted murder through starvation as a
result of all of the above



Attempted portrayal of [plaintiff] as
mentally unstable as a result of illegal
drugging and daily harassment inside [her]
home

(Statement, ECF No. 52-1.) Plaintiff also alleges in her Reply
that she continues to be “harassed by the defendant and/or his
agents” and that the defendant is “responsible” for the
multiple thefts of her passport. (Pl.’s Reply (“Reply”), ECF
No. 57, at 2.)
To obtain a preliminary injunction, the moving party
must show irreparable harm, and either (a) the likelihood of
success on the merits, or (b) sufficiently serious questions
going to the merits and a balance of hardships decidedly tipped
in the movant's favor. Green Party of New York State v. New York
State Bd. of Elections, 389 F.3d 411, 418 (2d Cir. 2004). A

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moving party must demonstrate irreparable harm before any other
requirement for the issuance of an injunction may be considered.
Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002).
Plaintiff fails to demonstrate irreparable harm as
required for preliminary injunctive relief. The Second Circuit
has defined “irreparable harm” as “certain and imminent harm for
which a monetary award does not adequately compensate,” noting
that “only harm shown to be non-compensable in terms of money
damages provides the basis for awarding injunctive relief.”
Wisdom Import Sales Co., L.L.C. v. Labatt Brewing Co., Ltd., 339
F.3d 101, 113-14 (2d Cir. 2003); see also Kamerling, 295 F.3d at
214 (“To establish irreparable harm, a party seeking preliminary
injunctive relief must show that there is a continuing harm
which cannot be adequately redressed by final relief on the
merits and for which money damages cannot provide adequate
compensation.” (internal quotation omitted)).
With respect to plaintiff’s allegations of difficulty
securing employment,1 the court finds that this harm is not
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The court construes plaintiff’s allegation of “global employment
blacklisting” as an allegation of difficulty securing employment. (Statement,
ECF No. 52-1.) Additionally, the court construes plaintiff’s further
allegations of “interference in [her] job search” from her Memorandum in
Support re First Motion for Preliminary Injunction (“Memo”), dated November
21, 2014 and filed on December 2, 2014, nearly two months after her opening
motion for preliminary injunction, as alleging difficulty in finding other
employment. (ECF No. 60.) Plaintiff offers evidence that an individual named
Tameka B., described on LinkedIn as a Management and Program Analyst at
Customs and Border Protection in Washington, D.C., viewed plaintiff’s
LinkedIn profile in November 2014. (ECF No. 60-2.) Plaintiff alleges that
this same individual had notified plaintiff that she failed her background
investigation with the agency on March 4, 2008. (Memo, ECF No. 60.) Plaintiff
also attached an email thread from a potential employer, “showing no reply
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alleged in plaintiff’s complaint and, in any event, is
compensable by damages and, thus, does not constitute
“irreparable harm.” See, e.g., Sampson v. Murray, 415 U.S. 61,
89-92 (1974)(holding that injuries such as loss of income,
damage to reputation, and difficulty in finding other employment
do not rise to the level of irreparable injury necessary to
obtain a preliminary injunction); Hyde v. KLS Prof’l Advisors,
LLC, 500 Fed. Appx. 24, 26 (2d Cir. 2012)(“Difficulty obtaining
a job is undoubtedly an injury, but it is not an irreparable one
. . . .”); Piercy v. Federal Reserve Bank, Nos. 02 Civ. 5005, 02
Civ. 9291, 2003 WL 115230, at *3 (S.D.N.Y. Jan 13, 2003)(Chin,
D.J.)(“In the employment context, ‘[c]ourts are loathe to grant
preliminary injunctions,’ because injuries often associated with
employment discharge, such as damage to reputation, financial
distress, and difficulty finding other employment, do not
constitute ‘irreparable harm.’”)
With respect to plaintiff’s other allegations of
“organized gang stalking,” the court declines to grant
preliminary injunctive relief based only on plaintiff's
speculative and unsubstantiated assertions. See Kamerling, 295
F.3d at 214 (noting that preliminary relief cannot be founded on
“remote or speculative” harms). Plaintiff has failed to produce

from the school following the profile view by Tameka b.” (Id.) The court
notes that plaintiff’s evidence does not show that a “profile view,” which
amounts to viewing the plaintiff’s public profile on LinkedIn, a social media
network, caused the harm alleged.
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any evidence showing that the alleged “photographing in public
places” and “stalking activities” actually occurred or that
defendant is connected to the alleged stalking and photographing
harm that plaintiff alleges. Moreover, plaintiff has made only
conclusory allegations regarding interference with plaintiff’s
email, computer use, telephone over the internet, and Skype.
Finally, plaintiff’s remaining allegations such as “illegal
drugging of plaintiff with intent to induce paranoia,” “staged
‘friends’ and acquaintances used to gather information,”
“attempted murder through starvation as a result of all of the
above,” and “attempted portrayal of [plaintiff] as mentally
unstable,” are conclusory and unsupported by any evidence.
Accordingly, the court cannot conclude that plaintiff has
presented any credible evidence of irreparable harm.
Consequently, plaintiff’s notion for preliminary injunction must
be, and is, denied.
CONCLUSION
For the reasons stated above, plaintiff’s motion for
preliminary injunction is denied.
SO ORDERED.
Dated:

December 8, 2014
Brooklyn, New York

____________/s/______________
Hon. Kiyo A. Matsumoto
United States District Judge
Eastern District of New York
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