Burroughs et al v. County of Nassau et al

Filing 74

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION - For the foregoing reasons, Plaintiffs' objections are OVERRULED and the Court ADOPTS Magistrate Judge Wall's R&R in its entirety. Plaintiffs' motion for a preliminary injunction is therefore DENIED. Defendants' motion to strike is therefore DENIED AS MOOT. So Ordered by Judge Joanna Seybert on 6/9/2014. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
CRAIG BURROUGHS, EDDIE MURDOCK,
GARY WALSH, JEROME KOWALSKI,
KEITH ADDISON, MICHAEL DOLLISON,
RAMEL NELLUMS, DANIEL MILLER,
LEO DUCHNOWSKI, CRAIG THURSTON,
WILLIAM COWAN, KURTIS PHILLIP,
JAMES SUTHERLAND, JAMEL WILLIAMS,
KEVIN FARRELLY,

MEMORANDUM & ORDER
13-CV-6784(JS)(WDW)

Plaintiffs,
-againstCOUNTY OF NASSAU; MICHAEL SPOSATO,
Sheriff of Nassau County,
Defendants.
----------------------------------X
APPEARANCES
For Plaintiffs:
Craig Burroughs, #13005758, pro se
Eddie Murdock, #13003401, pro se
Gary Walsh, #13003699, pro se
Jerome Kowalski, #13004867, pro se
Keith Addison, #13004867, pro se
Michael Dollison, #12009667, pro se
Ramel Nellums, #13007957, pro se
Daniel Miller, #12003565, pro se
Leo Duchnowski, #13004975, pro se
Craig Thurston, #13003524, pro se
William Cowan, #13006769, pro se
Kurtis Phillip, #13003851, pro se
James Sutherland, #13005724, pro se
Jamel Williams, #13007156, pro se
Kevin Farrelly, #13004238, pro se
Nassau County Correctional Center
100 Carman Avenue
East Meadow, NY 11554
For Defendants:

Pablo A. Fernandez, Esq.
Sara Kaye Schwartz, Esq.
Thomas Lai, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501

SEYBERT, District Judge:
Currently pending before the Court are plaintiffs Craig
Burroughs, Eddie Murdock, Michael Dollison, Daniel Miller, Leo
Duchonowski,

and

Jamal

Williams’

motion

for

a

preliminary

injunction and Magistrate Judge William D. Wall’s Report and
Recommendation (“R&R”), issued on March 19, 2014, recommending
that the motion be denied.

For the following reasons, the R&R is

ADOPTED in its entirety.
BACKGROUND
This action was filed on November 18, 2013 by a group of
fifteen pro se prisoners who claim that they are disabled and
housed in the Medical Unit at the Nassau County Correctional
Facility

(the

“NCCF”),

where

they

allegedly

suffer

various

violations of the Americans with Disabilities Act (“ADA”), the
Rehabilitation Act (“RA”), and the Fourteenth and Eight Amendments
of the United States Constitution.

Plaintiffs have filed a motion

for a preliminary injunction in which they allege, inter alia,
that

they

are

prevented

from

attending

court

and/or

medical

appointments because the NCCF does not maintain a handicapped
accessible

van.

(Affirm.

of

Emergency,

Docket

Entry

18-1.)

However, since the motion was filed and before Judge Wall issued
his R&R, several of the plaintiffs either have been transferred
out of the NCCF or moved from the Medical Unit to the general
housing

population.

Accordingly,
2

only

six

plaintiffs--Craig

Burroughs, Eddie Murdock, Michael Dollison, Daniel Miller, Leo
Duchonowski, and Jamal Williams (collectively, “Plaintiffs”)--have
claims still pending before the Court on the motion.

(Pls.’ Reply

Letter, Docket Entry 60, at 41.)
The proposed Order to Show Cause filed with the motion
for preliminary injunction states that Plaintiffs seek to enjoin
Defendants:
(1)

. . . from enforcing policies and
practices which subject plaintiffs to
denial of access to the courts by
preventing them from appearing in court;

(2)

. . . from enforcing policies and
practices which subject plaintiffs to
risk of physical injury with respect to
transportation to and from court and
medical appointments;

(3)

. . . from enforcing policies and
practices or otherwise engaging in
behavior which subjects plaintiffs, as
disabled
persons,
to
discriminatory
treatment and deprives them of the
programs,
privileges
and
services
afforded to all other inmates whom [sic]
are not disabled persons;

(4)

. . . from taking retaliatory actions
against plaintiffs either collectively
or individually;

(5)

. . . to procure and maintain a
handicapped-accessible vehicle for the
transportation of plaintiffs and other
disabled inmates . . . .

1

This number refers to the page number supplied by the Case
Management/Electronic Case Files system.
3

(Proposed Order to Show Cause, Docket Entry 18-4.)
On

December

18,

2013,

the

Undersigned

referred

motion for a preliminary injunction to Judge Wall.

the

(Docket Entry

25.) Judge Wall issued his R&R on March 19, 2014, which recommends
that Plaintiffs’ motion for a preliminary injunction be denied
because Plaintiffs did not show likelihood of success on the merits
on any of the claims asserted and because the balance of equities
do

not

weigh

in

Plaintiffs’

favor.

(Docket

Entry

62.)

Additionally, Judge Wall recommends that the special solicitude
normally granted to pro se litigants be withdrawn for purposes of
Plaintiffs’ motion given Plaintiff Daniel Miller’s (“Miller”) role
as the driving force behind this litigation and his extensive
experience as a litigator in the Eastern District of New York.
On April 2, 2014, Plaintiffs filed objections to the
R&R.

(Pls.’

defendants

Objs.,

Nassau

Docket

County

Entry

and

66.)

Michael

On

April

Sposato

11,

2014,

(collectively,

“Defendants”) moved to strike Plaintiff’s objections arguing that
they impermissibly raise facts and arguments not set forth in
Plaintiffs’ initial moving papers or reply.

(Mot. to Strike,

Docket Entry 70.)
DISCUSSION
The Court will first address the standard of review
before turning to Plaintiffs’ objections specifically.

4

I.

Standard of Review
“When evaluating the report and recommendation of a

magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).
specific,

written

objections

to

A party may serve and file
a

magistrate’s

report

and

recommendation within fourteen days of receiving the recommended
disposition.

See FED. R. CIV. P. 72(b)(2).

Upon receiving any

timely objections to the magistrate’s recommendation, the district
“court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).

28

A party

that objects to a report and recommendation must point out the
specific portions of the report and recommendation to which they
object.

See Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at

*1 (S.D.N.Y. Mar. 4, 2002) (citations omitted).
When a party raises an objection to a magistrate judge’s
report, the Court must conduct a de novo review of any contested
sections of the report.
815, 817 (S.D.N.Y. 1991).
or

general

objections,

See Pizarro v. Bartlett, 776 F. Supp.
But if a party “makes only conclusory
or

simply

reiterates

his

original

arguments, the Court reviews the Report and Recommendation only
for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51
5

(E.D.N.Y. 2008) (internal quotation marks and citation omitted).
Furthermore, even in a de novo review of a party’s specific
objections, the Court ordinarily will not consider “arguments,
case law and/or evidentiary material which could have been, but
[were]

not,

instance.”

presented

to

the

magistrate

judge

in

the

first

Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at

*1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation
omitted).
II.

Plaintiffs’ Objections
Plaintiffs first object to Judge Wall’s recommendation

that the special solicitude generally granted to pro se litigants
be withdrawn for purposes of Plaintiffs’ motion for a preliminary
injunction given Miller’s role as the driving force behind this
litigation and his extensive experience as a litigator in the
Eastern District of New York.

Plaintiffs argue that Judge Wall

erred here because, out of the numerous cases that Miller has filed
in this District, “all but two (2) of those cases were dismissed
at the screening stages of the complaint . . . .”
2.)

(Pls.’ Objs. at

Thus, according to Plaintiffs, because most of these cases

were dismissed in the preliminary stages, Miller has not gained
the

experience

required

to

abandon

generally offered to pro se litigants.

the

special

solicitude

The Court disagrees.

The Second Circuit has stated that “it is appropriate to
charge an experienced pro se litigant with knowledge of, and
6

therefore to withdraw special status in relation to, particular
requirements of the legal system with which he is familiar . . . .”
Tracy v. Freshwater, 623 F.3d 90, 92 (2d Cir. 2010) (citing Sledge
v. Kooi, 564 F.3d 105, 109–10 (2d Cir. 2009) (per curiam)).

Here,

in addition to the numerous complaints Miller has filed in this
District,

he

has

also

filed

four

motions

for

a

preliminary

injunction since 2007, all of which have been assigned to the
Undersigned and Judge Wall.

See Miller v. Cnty. of Nassau, No.

12-CV-4164(JS)(WDW), 2012 WL 4741592 (E.D.N.Y. Oct. 3, 2012);
Miller v. Cnty. of Nassau, No. 12-CV-4159(JS)(WDW), 2012 WL 4370125
(E.D.N.Y.

Sept.

21,

2012);

Miller

v.

Alexander,

No.

07-CV-

3533(JS)(WDW), 2008 WL 4068537 (E.D.N.Y. Aug. 26, 2008); Miller v.
Zerillo, No. 07-CV-1719, 2008 WL 375498 (E.D.N.Y. Feb. 6, 2008).
There is no question that Miller is very experienced with the legal
requirements for a preliminary injunction motion and the Court
finds that Judge Wall did not err in withdrawing Plaintiffs’
special status as pro se litigants for the purposes of filings
drafted by Miller.

Plaintiffs’ objection is therefore OVERRULED.

Although not clear, Plaintiffs also appear to object to
Judge Wall’s determination that Plaintiffs only seek to assert a
substantive due process claim as opposed to a procedural due
process claim.

The Undersigned agrees with Judge Wall that it is

difficult to tell whether Plaintiffs intend a substantive due
process claim, a procedural due process claim, or both.
7

Even if

Plaintiffs did intend a procedural due process claim, however, a
preliminary injunction is not appropriate for such a claim because
Plaintiffs have failed to show a likelihood of success on the
merits.

To

prevail

on

a

claim

for

violation

of

Fourteenth

Amendment procedural due process rights, “the plaintiff must show
that [he] ‘possessed a protected liberty or property interest, and
that he was deprived of that interest without due process.”
McMenemy v. City of Rochester, 241 F.3d 279, 285-86 (2d Cir. 2001)
(quoting Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998) (per
curiam)).

In

their

objections,

Plaintiffs

claim

that

their

“procedural due process rights are implicated” because “the prison
operating

policies

largely

related

to

fiscal

concerns

are

preventing plaintiffs and others from their right to be present in
court for their criminal cases.”

(Pls.’ Objs. at 4.)

However, as

Judge Wall noted in his R&R, Plaintiffs do not allege that they
have missed any scheduled court appearances.

Rather, some of the

Plaintiffs are simply dissatisfied with the fact that they “ha[ve]
not been brought to Court” for periods of time ranging from two
months to ten months.

(Affirm. of Emergency ¶¶ 4, 6-8.)

This

dissatisfaction does not state a claim for violation of procedural
due process rights.

It therefore follows that Plaintiffs have not

shown a likelihood of success.

Thus, to the extent Plaintiffs

object to Judge Wall’s determination that Plaintiffs do not intend

8

to

state

a

procedural

due

process

claim,

such

Judge

Wall’s

objection

is

decision

to

OVERRULED.
Plaintiffs

next

object

to

disregard new evidence that Plaintiffs submitted in reply to
Defendants’ opposition to Plaintiffs’ motion.

(Pls.’ Objs. at 7.)

Specifically, with respect to Plaintiffs’ ADA and RA claims,
Plaintiffs did not show in their moving papers that they are
“qualified individuals with disabilities,” a required element
under the ADA and RA.

However, Plaintiffs did attempt to cure

this deficiency with declarations filed in reply to Defendants’
opposition.

The Undersigned agrees with Judge Wall that providing

such detail in a reply is too late and that exercising discretion
to consider such evidence would “only prolong this preliminary
stage

in

a

case

that

should

move

forward

with

discovery

as

expeditiously as possible.” (R&R at 18.) Accordingly, Plaintiffs’
objection to Judge Wall’s decision to disregard new evidence
submitted in reply is OVERRULED.
Plaintiffs’ other objections are either general and
conclusory or present arguments that could have been presented to
Judge Wall in the first instance.

Thus, although a de novo review

is not required and the Court need not consider Plaintiffs’ newly
submitted arguments, the Court has conducted a de novo review of
the R&R in an abundance of caution, finds it well-reasoned and
thorough, and ADOPTS it in its entirety.
9

CONCLUSION
For the foregoing reasons, Plaintiffs’ objections are
OVERRULED and the Court ADOPTS Magistrate Judge Wall’s R&R in its
entirety.

Plaintiffs’ motion for a preliminary injunction is

therefore DENIED. Defendants’ motion to strike is therefore DENIED
AS MOOT.

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

June
9 , 2014
Central Islip, NY

10