Jefferson v. Soe et al
ORDER denying 2 Motion for Preliminary Injunction; granting 3 Motion for Leave to Proceed in forma pauperis; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED and his application for a Preli minary Injunction is DENIED. The Court ORDERS that the Clerk of the Court serve a copy of the Complaint together with this Order on the Suffolk County Attorney. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Ord er would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is further directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 7/6/2017. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
KEVIN L. JEFFERSON,
-againstSTEVEN SOE, Correction Officer;
JAMES JOE, Commissary Officer;
RICK ROE, Commissary Officer;
TONY TOE, Corrections Sergeant;
ZEUS ZOE, Warden of the SCJ; and
COUNTY OF SUFFOLK,
Kevin L. Jefferson, pro se
Suffolk County Jail
110 Center Drive
Riverhead, NY 11901
SEYBERT, District Judge:
On May 30, 2017, incarcerated pro se plaintiff Kevin L.
Jefferson (“Plaintiff”) filed a Complaint against the County of
“Defendants”) alleging a deprivation of his civil rights pursuant
to 42 U.S.C. § 1983 (“Section 1983”).
Plaintiff’s Complaint is
accompanied by an application to proceed in forma pauperis and an
Order to Show Cause seeking the entry of a Temporary Restraining
Order and a Preliminary Injunction.
By Electronic Order dated
June 5, 2017, the undersigned denied Plaintiff’s application for
application for a Preliminary Injunction pending the determination
of Plaintiff’s Motion to Proceed In Forma Pauperis.
Upon review of Plaintiff’s declaration in support of his
application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies him to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Accordingly, Plaintiff’s application to proceed in forma pauperis
is GRANTED and the Court ORDERS service of the Complaint by the
United States Marshal Service (“USMS”) without prepayment of the
Plaintiff’s Order to Show Cause seeking the entry of
a Preliminary Injunction is DENIED for the reasons that follow.
Plaintiff’s brief Complaint alleges a deprivation of his
First Amendment rights.
More specifically, Plaintiff claims that,
on May 11, 2017, his requests for grievance forms and “No Funds”1
envelopes were denied by Steven Soe (“Soe”), James Joe (“Joe”), and
Rick Roe (“Roe”).
According to the Complaint, Plaintiff informed
Joe and Roe that he needed envelopes in order to timely respond to
Plaintiff has annexed to the Complaint as “Exhibit D” at
page 27, a typed-page that appears to be an excerpt from an
unidentified source whereon paragraph five is hi-lighted and
reads, as follows, in relevant part: “No Commissary Funds
Inmates who have no funds or less than $1.00 in their commissary
account for more than one week are entitled to: paper,
envelopes, pencil, and toothpaste. . . . No funds commissary
will be delivered on Tuesday at the Yaphank Facilities and
Friday at the Riverhead Facility.” (Compl. at 27.)
a May 15, 2017 deadline to file a pleading in a pending civil case,
allegedly denied Plaintiff’s request. (Compl. at 4.) Accordingly,
Plaintiff contends that Defendants, “intentionally and with full
understanding and awareness of the impact of their individual and
collective actions”, deprived Plaintiff of his “First Amendment
freedoms (speech, the right of access to the court, and to petition
for redress of grievances).”
(Compl. at 4.)
that, given his lengthy litigation history against the County and
its employees, together with his success in obtaining injunctive
relief in Jefferson v. Doe, 08-CV-0204, Defendants’ denials of
grievance forms and/or envelopes are retaliatory.
annexed to the Compl., generally.)
For relief, Plaintiff seeks an award of compensatory
damages in the amount of $250,000 and punitive damages in the
“appropriate preliminary injunctive relief” and references his
application for a Preliminary Injunction.
(Compl. at 5.)
The Application for a Preliminary Injunction
Plaintiff’s ex parte Order to Show Cause does not include
Plaintiff seeks a preliminary injunction enjoining the Defendants
from denying his requests for grievance forms and envelopes, and/or
imposing any adverse consequences for the exercise of Plaintiff’s
First Amendment rights.
Plaintiff alleges, as grounds for his
motion, that he has been identified as litigious by corrections
staff and, in an effort to deter Plaintiff from filing further
grievances and lawsuits, various jail privileges have been denied
to him and other inmates, such as television time and lock-out
In addition, Plaintiff alleges he was removed from his food
In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fees.
See 28 U.S.C. § 1915(a)(1).
Plaintiff’s request to proceed in forma pauperis is GRANTED.
Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to
dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
The Court is required to dismiss the action as soon as
it makes such a determination.
28 U.S.C. § 1915A(a).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).
However, a complaint must plead sufficient
facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).
“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citation omitted).
plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”
Id. at 678; accord Wilson v.
Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011).
“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555).
Application For a Preliminary Injunction
It is well-established that “interim injunctive relief
Buffalo Forge Co. v. Ampco–Pittsburgh Corp.,
638 F.2d 568, 569 (2d Cir. 1981) (internal quotation marks and
To obtain a preliminary injunction, the movant
“must show irreparable harm absent injunctive relief, and either
a likelihood of success on the merits, or a serious question going
to the merits to make them a fair ground for trial, with a balance
of hardships tipping decidedly in plaintiff’s favor.”
Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 113-14
(2d Cir. 2006) (citing Jackson Dairy, Inc. v. H.P. Hood & Sons,
Inc., 596 F.2d 70, 72 (2d Cir. 1979)); see also Christian Louboutin
S.A. v. Yves Saint Laurent Am. Holdings, Inc., 696 F.3d 206, 215
(2d Cir. 2012); Citigroup Global Markets, Inc. V. VCG Special
Opportunities Master Fund, Ltd., 598 F.3d 30, 35 (2d Cir. 2010);
see also FED. R. CIV. P. 65.
“Such relief, however, ‘is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.’”
Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir. 2005)
(quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865,
1867, 138 L. Ed. 2d 162 (1997)).
When the moving party seeks a
“mandatory injunction that alters the status quo by commanding a
positive act,” as is the case here, the burden is even higher.
Citigroup Global Mkts., 598 F.3d at 35, n.4 (internal quotation
marks and citation omitted); see also Jolly v. Coughlin, 76 F.3d
468, 473 (2d Cir. 1996).
A mandatory preliminary injunction
“should issue only upon a clear showing that the moving party is
entitled to the relief requested, or where extreme or very serious
damage will result from a denial of preliminary relief.” Citigroup
Global Mkts., 598 F.3d at 35 n.4 (internal quotation marks and
injunctive relief must always be viewed with great caution so as
not to immerse the federal judiciary in the management of state
Dolberry v. Jakob, No. 11-CV-1018, 2017 WL 2126812,
at *3 (N.D.N.Y. May 16, 2017) (citations omitted).
Moreover, the relief requested by Plaintiff appears to
be an “obey the law” injunction.
“‘Obey the law’ injunctions are
vague, do not require the defendants to do anything more than that
already imposed by law, subject the defendants to contempt rather
than statutorily prescribed sanctions, and are not readily capable
As such, these injunctions are not favored.”
2017 WL 2126812, at *4 (citing N.L.R.B. v. Express Pub. Co., 312
U.S. 426, 435-36, 61 S. Ct. 693, 699, 85 L. Ed. 930 (1941)); see
also Rowe v. N.Y. State Div. of Budget, 11-CV-1150, 2012 WL
4092856, at *7 (N.D.N.Y. Sept. 17, 2012); New York v. Shinnecock
Indian Nation, 560 F. Supp. 2d 186, 189 (E.D.N.Y. 2008).
injunction must be more specific than a simple command that the
defendant obey the law.”
S.C. Johnson & Son, Inc. v. Clorox Co.,
241 F.3d 232, 240 (2d Cir. 2001) (internal quotation marks and
Ultimately, the decision to grant or deny this
“drastic” remedy rests in the district court’s sound discretion.
See, e.g., Moore, 409 F.3d at 511 (A district court has “wide
Likelihood of Success on the Merits or Sufficiently
Serious Questions Going to the Merits to Make Them a Fair
Ground for Litigation and Balance of the Hardships
request for: (1) two grievance forms on May 11, 2017 was denied2;
and (2) “no funds envelopes” on the same date was also denied.
Thus, the Court must consider whether there is a likelihood of
success on the merits of Plaintiff’s claim that these denials
violated his First Amendment rights.3
The Court liberally construes the Complaint to allege that the
denial of the grievance forms was in retaliation for Plaintiff’s
history of filing grievances and/or lawsuits. To the extent
Plaintiff seeks to allege that the denial of the grievance
forms, absent retaliation, is an independent deprivation of
Plaintiff’s First Amendment Right to Petition the Government for
Redress of Grievances, such claim fails as a matter of law.
“‘[Although] there is a First Amendment right of meaningful
access to the courts and a right to petition the government for
redress, inmate grievance procedures are not required by the
Constitution and therefore a violation of such procedures does
not give rise to a claim under § 1983.’” Crichklow v. Fischer,
2017 WL 920753, at *7 (W.D.N.Y. Mar. 7, 2017) (quoting Cancel v.
Goord, No. 00-CV-2042, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29,
2001) (internal citations omitted)).
Although Plaintiff includes several other incidents of adverse
consequences imposed by Defendants as a result of Plaintiff’s
exercise of his First Amendment Rights in his Order to Show
Cause, such incidents are not part of the Complaint, and, are
thus not part of the “likelihood of success” analysis. Omega
World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th
Cir. 1997) (reversing district court’s granting of motion for
First Amendment Retaliation Claim
“[A] plaintiff asserting First Amendment retaliation
claims must allege (1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against the
plaintiff, and (3) that there was a causal connection between the
protected speech and the adverse action.” Davis v. Goord, 320 F.3d
Prisoner claims of retaliation are examined “with skepticism and
decisions and actions by prison officials to which prisoners will
take exception” and “the ease with which claims of retaliation may
be fabricated.” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)
(citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
Accordingly, claims of this nature “‘must be supported by specific
and detailed factual allegations, [and] not stated ‘in wholly
conclusory terms.’” Friedl v. City of N.Y., 210 F.3d 79, 86 (2d
Cir. 2000) (quoting Flaherty, 713 F.2d at 13).
For purposes of this Order, the Court presumes that
Plaintiff’s previous filing of grievances and court complaints
preliminary injunctive relief because injury sought to be
prevented through preliminary injunction was unrelated to injury
which gave rise to complaint); see also Lewis v. Johnston, No.
08–CV–0482, 2010 WL 1268024, at *3 (N.D.N.Y. Apr. 1, 2010)
(denying motion for injunctive relief based upon actions taken
by staff at Great Meadow Correctional Facility in 2010, where
the complaint alleged wrongdoing that occurred at Franklin and
Upstate Correctional Facilities in 2006 and 2007).
constitute a protected activity.
See, e.g., Graham v. Henderson,
89 F.3d 75, 80 (2d Cir. 1996).
Plaintiff alleges that adverse
action was taken against him in that he was denied grievance forms
and envelopes on May 11, 2017.
“Only retaliatory conduct that
would deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights constitutes an
adverse action for a claim of retaliation.”
Dawes v. Walker, 239
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 122 S. Ct. 992, 152 L.
Ed. 2d 1 (2002).
“In making this determination, the court’s
inquiry must be tailored to the different circumstances in which
retaliation claims arise, bearing in mind that [p]risoners may be
required to tolerate more . . . than average citizens, before a
[retaliatory] action taken against them is considered adverse.”
Davis, 320 F.3d at 353 (alterations and ellipsis in original)
(internal quotation marks and citation omitted).
Here, the alleged retaliatory conduct was the brief delay
in providing Plaintiff with the requested grievance forms.
delay can hardly be considered adverse action for purposes of
Plaintiff’s First Amendment retaliation claim given that Plaintiff
was not deterred from filing grievances, and, in fact did so on
May 15, 2017.
See Grievance # Y-2017-036, dated May 15, 2017,
annexed as Ex. B to the Complaint at page 12.
Moreover, there is
no causal connection between Plaintiff’s alleged protected speech
and the denial of the grievance forms.
Plaintiff cites only a 2013
lawsuit as an example of the protected speech and does not include
any recent instances of protected speech.
Espinal v. Goord, 558
F.3d 119, 129 (2d Cir. 2009) (“A plaintiff can establish a casual
connection that suggests retaliation by showing that protected
activity was close in time to the adverse action.”)
are no facts in the Complaint from which the Court could reasonably
construe the required causal connection.
has not established a likelihood of success on his First Amendment
Nor has Plaintiff established that there are
sufficiently serious questions going to the merits with a balance
of hardships tipping decidedly in his favor.
Ivy Mar Co. v. C.R.
Seasons Ltd., 907 F. Supp. 547, 561 (E.D.N.Y. 1995) (“[B]are
allegations, without more, are insufficient for the issuance of a
preliminary injunction.”); Hancock v. Essential Resources, Inc.,
792 F. Supp. 924, 928 (E.D.N.Y. 1992) (“Preliminary injunctive
relief cannot rest on mere hypotheticals. . . .”).
Denial of Access to the Courts Claim
Plaintiff also appears to claim that Defendants have
deprived him of his First Amendment right of access to the courts
by denying his request for envelopes.
The Supreme Court has long
held that inmates are guaranteed a right of access to the courts
under the First Amendment to the Constitution. See Lewis v. Casey,
518 U.S. 343, 350, 116 S. Ct. 2174, 2179, 135 L. Ed. 2d 606 (1996);
Bounds v. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 1498, 52 L. Ed.
2d 72 (1977).
To state such a claim, “a plaintiff must allege that
(1) the defendant acted deliberately and maliciously, and (2) the
plaintiff suffered an actual injury.”
Graham v. City of Albany,
No. 08-CV-0892, 2009 WL 4263510, at *8 (N.D.N.Y. Nov. 23, 2009);
see also Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (citing
Lewis, 518 U.S. at 353, 116 S. Ct. at 2181).
Here, as is readily apparent, Plaintiff has not--and
cannot--demonstrate that he has suffered an actual injury as a
result of the denial of the envelopes on May 11, 2017.
contends that he needed the envelopes in order to mail papers to
Court (with a copy to his adversary) in another pending case
brought by Plaintiff, Jefferson v. Rosenblatt, 13-CV-3918.
review of the docket in that case reflects that Magistrate Judge
Arlene R. Lindsay entered a Scheduling Order, dated March 29, 2017
(see Docket No. 37, that required Plaintiff to file his Narrative
Statement by May 15, 2017.
Having not received the Narrative
Statement, by Order dated June 7, 2017, Judge Lindsay directed the
parties to submit a joint status letter on or before June 29, 2017.
Thus, there has been no adverse consequence to Plaintiff’s failure
to meet the May 15, 2017 deadline. Given that Plaintiff’s deadline
was extended, he has not suffered any harm as a result of the
denial of the envelopes.
Moreover, given that Plaintiff has
successfully filed the present Complaint and Order to Show Cause,
he clearly had access to envelopes and chose to file the instant
application rather than his Narrative Statement as was ordered by
Judge Lindsay. Thus, Plaintiff’s access to courts claim has little
likelihood of success, nor are there sufficiently serious questions
going to the merits with a balance of hardships tipping decidedly
in Plaintiff’s favor.
Given that Plaintiff has not established that there is
either a likelihood of success on the merits or that there are
sufficiently serious questions going to the merits with a balance
of hardships tipping decidedly in his favor, the Court need not
address the irreparable harm prong and Plaintiff’s application for
a Preliminary Injunction is DENIED.
The USMS will not be able to effect service of the
Summonses and the Complaint on the unidentified Defendants without
more information. The Second Circuit has held that district courts
See Valentin v. Dinkins, 121 F.3d 72, 75–76 (2d Cir.
Accordingly, the Court ORDERS that the Clerk of the Court
serve a copy of the Complaint together with this Order on the
Suffolk County Attorney.
The Suffolk County Attorney’s Office is
requested to attempt to ascertain the full names of the unnamed
individuals who are described in the Complaint and to provide to
the Court and to Plaintiff their names and the address(es) where
these individuals can be served within thirty (30) days of the date
that this Order is served upon it.
Once the information is
provided to the Court by the Suffolk County Attorney’s Office,
Plaintiff’s Complaint shall be deemed amended to reflect the full
names of the unnamed Defendants, Summonses shall be issued as to
these Defendants, and the USMS shall serve them.
County Attorney need not undertake to defend or indemnify these
individuals at this juncture.
This Order merely provides a means
Defendants as instructed by the Second Circuit in Valentin.
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED and his application for a
Preliminary Injunction is DENIED.
The Court ORDERS that the Clerk
of the Court serve a copy of the Complaint together with this Order
on the Suffolk County Attorney.
The Suffolk County Attorney’s
Office is requested to attempt to ascertain the full names of the
unnamed individuals who are described in the Complaint and to
address(es) where these individuals can be served within thirty
(30) days of the date that this Order is served upon it.
Attorney’s Office, Plaintiff’s Complaint shall be deemed amended
to reflect the full names of the unnamed Defendants, Summonses
shall be issued as to these Defendants, and the USMS shall serve
them, together with the named Defendant, Suffolk County.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose
of any appeal.
See Coppedge v. United States, 369 U.S. 438, 444-
45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is further directed to mail a copy
of this Order to the pro se Plaintiff.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: July 6 , 2017
Central Islip, New York
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