Marino v. Watts et al

Filing 114

MEMORANDUM-DECISION AND ORDER: ORDERED that plaintiff's motion (Dkt. No. 95 ) is denied. ORDERED that plaintiff's motion (Dkt. No. 101 ) is denied. ORDERED that plaintiff's motion (Dkt. No. 104 ) is denied. Signed by Senior Judge Norman A. Mordue on 4/4/17. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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Vincent Michael Marino,
Plaintiff,
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9:12-CV-801 (NAM/DJS)

Harrell Watts; Deborah G. Schult; Robert Helms;
Jason Poirier; D. Ryan; Sepanek; Mr. Lucas; Joseph
Smith; John and Jane does 1-20,
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Defendants.
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APPEARANCES:

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Vincent Michael Marino
14431-038
Inmate Mail
Fort Dix Federal Correctional Institution
P.O. Box 2000
Joint Base MDL, New Jersey 08640
Office of United States Attorney, Northern District of New York
Karen Folster Lesperance, Esq., Assistant United States Attorney
James T. Foley United States Courthouse
445 Broadway, Room 218
Albany, New York 12207-2924

Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
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In this pro se Bivens1 action by plaintiff, an inmate in the federal correctional system, the
sole remaining claims are retaliation claims against defendants Deborah G. Schult, Robert Helms,
Jason Poirier, D. Ryan, Sepanek, and Mr. Lucas. Pending before the Court are plaintiff’s motions
for a writ of garnishment (Dkt. No. 95); an order compelling defendants to serve their response to
the motion for a writ of garnishment (Dkt. No. 101); and a preliminary injunction restraining
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(1971).

See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

defendants from disposing of assets that may be subject to a lien in the event of a judgment in
favor of plaintiff (Dkt. No. 104). As explained below, the motions are denied in their entirety.
On October 18, 2016 (Dkt. No. 90) United States Magistrate Daniel J. Stewart denied
plaintiff’s request (Dkt. No. 87) for an “out-of-Court settlement” and advised: “Plaintiff should
contact defense counsel directly to discuss any possible settlement proposal.” Thereafter,
plaintiff moved (Dkt. No. 95) for a writ of garnishment on defendants’ wages, bank accounts, and
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property, on the ground that defendants failed to respond to his proposal to settle the case for $2
million. As defendants point out, plaintiff is not entitled to provisional remedies under Fed. R.
Civ. P. 64(a) (“[E]very remedy is available that, under the law of the state where the court is
located, provides for seizing a person or property to secure satisfaction of the potential
judgment.”) and N.Y.C.P.L.R. 6001 (“The provisional remedies are attachment, injunction,

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receivership and notice of pendency.”). Plaintiff appears to seek an order of attachment. Under
New York law, in moving for an order of attachment “the plaintiff shall show, by affidavit and
such other written evidence as may be submitted, that there is a cause of action, that it is probable
that the plaintiff will succeed on the merits, that one or more grounds for attachment provided in
section 6201 exist, and that the amount demanded from the defendant exceeds all counterclaims
known to the plaintiff.” N.Y.C.P.L.R. 6212(a). The Court has already found that plaintiff has a

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cause of action for retaliation; however, plaintiff has not shown that it is probable that he will
succeed on the merits or that a ground for attachment exists under N.Y.C.P.L.R. 6201. Fed. R.
Civ. P. 67, cited by plaintiff, concerns the deposit into court of money or property whose
ownership is at issue, and is inapplicable here. There is no other basis for the relief sought. The
motion (Dkt. No. 95) is denied.

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Plaintiff’s motion (Dkt. No. 101) to compel defendants to serve their response to the
motion for a writ of garnishment is denied.
Finally, plaintiff moves (Dkt. No. 104) for a preliminary injunction restraining defendants
from disposing of assets that may be subject to a lien in the event of an entry of judgment in his
favor. The Supreme Court decision in Grupo Mexicano de Desarrollo S.A. v. Alliance. Bond
Fund, Inc., cited by defendants, establishes that, in an action for money damages, a district court
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lacks the power to issue a preliminary injunction preventing a defendant from transferring assets
in which no lien or equitable interest is claimed. 527 U.S. 308, 333 (1999). This Court has
already rejected plaintiff’s motion (Dkt. No. 95) for provisional relief under Fed. R. Civ. P. 64
and N.Y.C.P.L.R. 6001, and there is no other ground for the relief sought. In any event,
plaintiff’s submissions fall far short of demonstrating entitlement to a preliminary injunction.

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The motion (Dkt. No. 104) is denied.
It is therefore
ORDERED that plaintiff’s motion (Dkt. No. 95) is denied; and it is further
ORDERED that plaintiff’s motion (Dkt. No. 101) is denied; and it is further
ORDERED that plaintiff’s motion (Dkt. No. 104) is denied; and it is further
ORDERED that the Clerk of the Court is directed to serve this Memorandum-Decision

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and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Date: April 4, 2017
Syracuse, New York

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