D'Attore v. State of New York et al

Filing 45

DECISION AND ORDER: ORDERED, that Plaintiff's Motion (Dkt. No. 43 ) for a preliminary injunction is DENIED. ORDERED, that the Report-Recommendation (Dkt. No. 42 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendants' Motion (Dkt. No. 37 ) for summary judgment is GRANTED. ORDERED, that the Clerk of the Court enter judgment for Defendants and close this case. Signed by Senior Judge Lawrence E. Kahn on 8/22/14. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
GAETANO D’ATTORE,
Plaintiff,
-against-

9:12-CV-0009 (LEK/RFT)

CUCHARELLA; and DURANTE,
Defendants.
___________________________________
DECISION and ORDER
I.

INTRODUCTION
Pro se Plaintiff Gaetano D’Attore (“Plaintiff”) commenced this action on April 25, 2011,

alleging civil rights violations arising out of his confinement at Walsh Regional Medical Unit
(“RMU”) during the period December 2010 to January 2011. Dkt. No. 1 (“Complaint”). Presently
pending are Defendants’ Motion for summary judgment, which comes before the Court on a ReportRecommendation filed by the Honorable Randolph F. Treece, U.S. Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.3; and Plaintiff’s Motion for a preliminary injunction . Dkt.
Nos. 37 (“Defendants Motions”); 42 (“Report-Recommendation”); 43 (“Plaintiff Motion”).
II.

PRELIMINARY INJUNCTION MOTION
A. Legal Standard
Preliminary injunctive relief “‘is an extraordinary and drastic remedy, one that should not be

granted unless the movant, by a clear showing, carries the burden of persuasion.’” Moore v. Consol.
Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005) (quoting Mazurek v. Armstrong, 520
U.S. 968, 972 (1997)). A plaintiff seeking preliminary injunctive relief must demonstrate
irreparable harm and either a substantial likelihood of success on the merits of the claim, or

sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in his
favor. Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30,
35 (2d Cir. 2010); Cacchillo v. Insmed, Inc., 638 F.3d 401, 405-06 (2d Cir. 2011). However, when
the moving party seeks a “mandatory injunction that alters the status quo by commanding a positive
act,” the burden is even higher. Citigroup Global Mkts., 598 F.3d at 35; 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 omitted).
B. Discussion
In his Motion, Plaintiff states that he endured numerous incidents of mistreatment by staff
and other inmates at Green Haven Correctional Facility (“Green Haven”), and expresses concern for
his personal safety should he be returned to that facility. Pl. Mot. Plaintiff, who has been confined
at a New York City Department of Corrections facility on Rikers Island since approximately June
2014, seeks an order prohibiting the New York State Department of Corrections and Community
Supervision from returning him to Green Haven “for any amount of time.” Id. at 5.
“‘To prevail on a motion for preliminary injunctive relief, the moving party must establish a
relationship between the injury claimed in the motion and the conduct giving rise to the complaint.’”
Candelaria v. Baker, No. 00-CV-0912, 2006 WL 618576, at *3 (W.D.N.Y. Mar. 10, 2006) (citations
omitted); 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
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Upstate Correctional Facilities in 2006 and 2007). “[A] preliminary injunction may never issue to
prevent an injury or harm which not even the moving party contends was caused by the wrong
claimed in the underlying action.” Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14,
16 (4th Cir. 1997); accord Ball v. Famiglio, 396 F. App’x 836, 837 (3d Cir. 2010); Little v. Jones,
607 F.3d 1245, 1251 (10th Cir. 2010); Devose v. Harrington, 42 F.3d 470, 471 (8th Cir. 1994).
Here, the claims in the Complaint arose out of Plaintiff’s confinement at Walsh RMU during
the period of December 2010 to January 2011. Compl. Walsh RMU is located within the Mohawk
Correctional Facility, see Dkt. No. 37-8 at 3, and Defendants Cucharella and Durante are identified
in the Complaint as members of the Walsh RMU corrections staff, Compl. at 2. Nothing in
Plaintiff’s Motion suggests that either Cucharella or Durante was in any way involved in or
responsible for the alleged misconduct at Green Haven. Additionally, Plaintiff has not shown that
Defendants have any involvement in or responsibility for assigning Plaintiff to a particular
correctional facility. As a result, Plaintiff’s request for injunctive relief must be denied.
III.

SUMMARY JUDGMENT MOTION
A. Standard of Review
Within fourteen days after a party has been served with a copy of a magistrate judge’s report-

recommendation, the party “may serve and file specific, written objections to the proposed findings
and recommendations.” FED. R. CIV. P. 72(b); L.R. 72.1(c). “If no objections are filed . . .
reviewing courts should review a report and recommendation for clear error.” Edwards v. Fischer,
414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006); see also Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.
2003) (“As a rule, a party’s failure to object to any purported error or omission in a magistrate
judge’s report waives further judicial review of the point.”); Farid v. Bouey, 554 F. Supp. 2d 301,
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306 (N.D.N.Y. 2008).
B. Discussion
Judge Treece recommends that Defendants’ Motion for summary judgment be granted and
that this case be dismissed. Report-Rec. at 9. No objections to the Report-Recommendation were
filed in the allotted time period. See Docket. The Court therefore reviews the ReportRecommendation for clear error and finds none.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 43) for a preliminary injunction is DENIED;

and it is further
ORDERED, that the Report-Recommendation (Dkt. No. 42) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 37) for summary judgment is GRANTED;
and it is further
ORDERED, that the Clerk of the Court enter judgment for Defendants and close this case;
and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:

August 22, 2014
Albany, New York

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