Vallen v. Pierre et al

Filing 53

MEMORANDUM & ORDER denying 44 Motion for TRO; denying 48 Motion for TRO For the foregoing reasons, Plaintiff's motions (Docket Entries 44, 48) are DENIED. The Clerk of the Court is directed to mail a copy of this Order to the pro se Plai ntiff. Further, the Pro Se Office is directed to mail a copy of the Pro Se Manual to Plaintiff pursuant to his request (See, Docket Entry 49). Given Plaintiff's pro se status, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is DENIED for purposes of an appeal. So Ordered by Judge Joanna Seybert on 2/14/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
BARRY VALLEN,
Plaintiff,

MEMORANDUM & ORDER
13-CV-6541 (JS)(ARL)

-against–
MARIE PIERRE, CHERYL DENTON, LAURA
ANTINI, DAVID WEIGHMAN, Director
of Safety Department, Pilgrim
Psychiatric Center, and GORDON MAY,
Chief of Services, Pilgrim
Psychiatric Center,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Barry Vallen, pro se
Pilgrim Psychiatric Center Hospital
Ward 401
998 Crooked Hill Road
W. Brentwood, NY 11717
For Defendants:

Lori L. Pack, Esq.
Theresa N. Wilson, Esq.
New York State Attorney General’s Office
300 Motor Parkway, Suite 230
Hauppauge, NY 11788

SEYBERT, District Judge:
Currently pending before the Court in this Section 1983
action are: (1) Plaintiff’s motion for a temporary restraining
order dated May 6, 2016 (Docket Entry 44) and (2) Plaintiff’s
motion for a temporary restraining order dated May 25, 2016 (Docket
Entry 48).
DENIED.

For the following reasons, Plaintiff’s motions are

BACKGROUND
Plaintiff

Barry

Vallen

(“Plaintiff”)

commenced

this

action against Marie Pierre, Cheryl Denton, Laura Antini, Gordon
May and David Weighman (“Defendants”) on November 20, 2013.1
(Compl., Docket Entry 1.)

Plaintiff is a patient at Pilgrim

Psychiatric Center (“Pilgrim”), and Defendants are employed by
Pilgrim.

The

Plaintiff’s

room

Complaint
and

alleges

confiscated

violation of the Fourth Amendment.

that
his

Defendants

personal

belongings

(Compl. at 4-6.)

2014, Defendants moved to dismiss the Complaint.
Entry 11.)
Lindsay,

searched
in

On April 14,
(Mot., Docket

The motion was referred to Magistrate Judge Arlene R.

who

issued

a

Report

and

Recommendation

(the

“R&R”)

recommending that the motion be granted in part and denied in part.
(R&R, Docket Entry 30.)

Specifically, Judge Lindsay recommended

that Plaintiff’s claims for money damages against Defendants in
their official capacities be dismissed, but that his claims for
injunctive relief against Defendants in their official capacities
and his claims for money damages against Defendants in their
individual capacities proceed to discovery.
Court adopted the R&R in its entirety.

(R&R at 16-17.)

This

(Order, Docket Entry 31.)

Gordon May and David Weighman were named in the Complaint as
“Seventh Floor Administrators” and added as Defendants after
they were identified. (See Ltr., Docket Entry 10; Summons,
Docket Entry 12.)
1

2

On May 6, 2016, Plaintiff filed a motion seeking a
temporary restraining order (“TRO”).
44.)

(First Mot., Docket Entry

Particularly, he seeks a TRO directing Pilgrim staff to

refrain from entering his room and to cease tampering with his
mail.

(First Mot. at 1.)

He alleges that certain correspondence

was not delivered to him and that correspondence he attempted to
mail was never sent out.

(First Mot. at 1-2.)

He further alleges

that individuals entered his room, went through his drawers and
closet and stole his personal belongings.

(First Mot. at 2.)

Defendants opposed the motion and argued that Plaintiff failed to
establish

that

was

entitled

to

(Defs.’ Ltr., Docket Entry 45.)

temporary

injunctive

relief.

On May 13, 2016, Plaintiff

supplemented his motion and reiterated his request for a TRO.
(Pl.’s Ltr., Docket Entry 46.)

He maintained that one of the

Defendants, Cheryl Denton, entered his room and stole his property,
including $25.

(Pl.’s Ltr. at 1.)

On May 25, 2016, Plaintiff filed a second motion for a
TRO.

(Second Mot., Docket Entry 48.)

Plaintiff alleges that he

was on the phone complaining about a nurse when a therapy aide
threatened him.

(Second Mot. at 1.)

He states that the aide

threatened to harm him if he did not end the call and subsequently
went into his room and stole his personal belongings.
Mot. at 1.)

(Second

Additionally, Plaintiff maintains that his room is a

“target of any staff that holds a grudge.”
3

(Second Mot. at 1.)

He requested that the Court hold a hearing and issue a TRO. (Second
Mot. at 1.)

On May 25, 2016, he filed a letter requesting a copy

of the manual for pro se litigants.
Entry 49.)

(Pl.’s Second Ltr., Docket

On June 6, 2016, he filed a supplement to his motion,

alleging that one aide improperly ordered a search of his room and
another aide threatened to “punch [his] head throug[h] the wall
for defying him.”

(Pl.’s Third Ltr., Docket Entry 51.)

He also

repeats his earlier allegations that Cheryl Denton stole $25 from
him and a therapy aide threatened him during a phone call.
Third Ltr.)
the

same

hearing.2

(Pl.’s

On June 22, 2016, Plaintiff filed a letter detailing

allegations

against

Cheryl

Denton

and

requesting

a

(Pl.’s Fourth Ltr., Docket Entry 52.)
DISCUSSION

I.

Legal Standard
A

party

seeking

a

preliminary

injunction

must

demonstrate “(a) irreparable harm and (b) either (1) likelihood of
success on the merits or (2) sufficiently serious questions going
to the merits to make them a fair ground for litigation and a
balance of hardships tipping decidedly toward the party requesting
the preliminary relief.”3

Johnson v. Connolly, 378 F. App’x 107,

Because Plaintiff failed to request leave to file supplemental
briefs, the Court will not consider his letters at Docket
Entries 51 and 52.
2

Courts in this Circuit apply the same standard regardless of
whether the parties seek a temporary restraining order or
3

4

108 (2d Cir. 2010) (internal quotation marks and citation omitted).
Additionally, where the movant seeks a “mandatory injunction” that
will “alter rather than maintain the status quo,” he must satisfy
the

higher

standard

of

establishing

“a

likelihood of success on the merits.”

clear

or

substantial

Id. (internal quotation

marks and citation omitted).
II.

Application
As

a

preliminary

matter,

the

Plaintiff’s allegations of mail tampering.

Court

must

address

In his First Motion,

Plaintiff requests a TRO directing Pilgrim and its employees to
cease tampering with his legal and non-legal mail.
1.)

(First Mot. at

A patient who is committed to a psychiatric institution has

a “right to the free flow of incoming and outgoing mail . . .
protected by the First Amendment.”

Davis v. Goord, 320 F.3d 346,

351 (2d Cir. 2003); Ahlers v. Rabinowitz, 684 F.3d 53, 64 (2d Cir.
2012) (applying standards set forth in Davis in civil commitment
context).

“[I]nference

with

legal

mail

[patient’s] rights to access the courts.”

[also]

implicates

Davis, 320 F.3d at 351.

preliminary injunction. See, e.g., Grandy v. BAC Home Loan
Servicing, LP, No. 10-CV-4278, 2010 WL 3842428, at *2 (E.D.N.Y.
Sept. 28, 2010) (“‘[T]he standards which govern consideration of
an application for a temporary restraining order . . . are the
same as those which govern a preliminary injunction.’”) (quoting
Local 1814, Int’l Longshoremen’s Ass’n v. N.Y. Shipping Ass’n
Inc., 965 F.2d 1224, 1228 (2d Cir. 1992)) (ellipsis in
original).
5

a

However, Plaintiff’s Complaint does not contain any
allegations of interference with his mail.

Moreover, Plaintiff

did not assert a First Amendment claim. Accordingly, because these
allegations are outside the scope of the claims asserted in this
action, Plaintiff’s motion for a TRO with respect to mail tampering
is DENIED.

See, e.g., Lopez v. McEwan, No. 08-CV-0678, 2009 WL

179815, at *2 (D. Conn. Jan. 23, 2009) (“Because the plaintiff’s
allegations

and

request

for

relief

relating

to

grievance

restrictions are unrelated to the claims in the Complaint . . .
the request for injunctive relief . . . is inappropriate.”); Suarez
v. Keiser, No. 04-CV-6362, 2008 WL 4415197, at *2 (W.D.N.Y.
Sept. 24, 2008) (“Plaintiff’s application for injunctive relief
must be denied, since it involves matters that are unconnected to
the specific claims in this lawsuit.”).
As to Plaintiff’s remaining allegations, the Fourth
Amendment protects the right to “be free from unreasonable searches
and seizures.”

Ahlers, 684 F.3d at 61.

In order to conduct a

search, a warrant based on probable cause is usually required.
See Aiken v. Nixon, 236 F. Supp. 2d 211, 230 (N.D.N.Y. 2002),
aff’d, 80 F. App’x 146 (2d Cir. 2003).

However, “government

officials do not need a warrant or probable cause to conduct a
search

‘when

enforcement,

special
make

the

needs,

beyond

warrant

and

the

normal

need

probable-cause

for

law

requirement

impracticable.’” Aiken, 236 F. Supp. 2d at 230-31 (quoting Griffin
6

v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct. 3164, 3168, 97 L. Ed.
2d 709 (1987)).
A warrantless search is permissible when “it is divorced
from

the

State’s

“reasonable
quotation

under

general
the

marks

reasonableness,

in

circumstances.”

and

the

interest

citations

Court

must

law
Id.

of

at

balance

the

and

231

(internal

To

evaluate

omitted).

individual against the interests of the state.
at 61.

enforcement”

interests

of

the

Ahlers, 684 F.3d

In Ahlers, the Second Circuit explained that in the case

individuals

who

are

involuntarily

committed,

the

state’s

interests in “order, security and treatment” must be weighed
against the patient’s privacy and property interests.

Id.

Plaintiff’s motions allege that members of Pilgrim’s
staff have conducted improper searches of his room and confiscated
his personal belongings.
are

insufficient

to

The Court finds that these allegations
warrant

temporary

injunctive

relief.

Plaintiff has not shown a “likelihood of success on the merits” on
his Fourth Amendment claim or “sufficiently serious questions
going to the merits” of that claim.

Johnson, 378 F. App’x at 108.

As an initial matter, it is unclear whether Plaintiff had a
reasonable expectation of privacy.4

Moreover, state facilities

Several courts in this Circuit have held that patients who are
involuntarily committed to psychiatric institutions do not have
a reasonable expectation of privacy in their rooms. See, e.g.,
Lombardo v. Holanchock, No. 07-CV-8674, 2008 WL 2543573, at *8
4

7

such as Pilgrim have interests in order, security, and treatment
which must be considered.

See Ahlers, 684 F.3d at 61.

Finally,

Plaintiff has failed to proffer any evidence beyond his own
statements in support of his application.

As such, the Court

declines to issue a temporary restraining order at this time.
CONCLUSION
For the foregoing reasons, Plaintiff’s motions (Docket
Entries 44, 48) are DENIED.

The Clerk of the Court is directed to

mail a copy of this Order to the pro se Plaintiff.

Further, the

Pro Se Office is directed to mail a copy of the Pro Se Manual to
Plaintiff pursuant to his request (See, Docket Entry 49).

Given

Plaintiff’s pro se status, the Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order
would not be taken in good faith and therefore in forma pauperis
status is DENIED for purposes of an appeal.

Coppedge v. United

States, 369 U.S. 438, 444–45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.

Dated: February
14 , 2017
Central Islip, New York

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

(S.D.N.Y. June 25, 2008) (“[A]s an involuntarily detained
person, [plaintiff] has no Fourth Amendment right against
searches of his cell, and thus no claim under § 1983 for the
alleged violations of his Fourth Amendment rights.”); Ahlers v.
Bosco, No. 12-CV-0575, 2012 WL 6649191, at *3 (N.D.N.Y. Dec. 20,
2012).
8