White v. Uhler et al

Filing 200

DECISION AND ORDER: ORDERED, that Plaintiff's motions for injunctive relief and for a contempt order (Dkt. Nos. 173 , 174 , 175 , and 181 ) are DENIED. ORDERED, that Defendants' request for an anti-filing injunction (Dkt. No. 182 ) is DENIED. Signed by Senior Judge Lawrence E. Kahn on 3/8/17. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOHN H. WHITE,
Plaintiff,
-against-

9:14-CV-1400 (LEK/ATB)

DONALD UHLER, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
Pro se plaintiff John H. White commenced this civil rights action pursuant to 42 U.S.C.

§ 1983. Dkt. No. 1 (“Complaint”). Presently before the Court are Plaintiff’s third motion for
preliminary injunctive relief and Plaintiff’s motion for contempt. Dkt. Nos. 173, 174, 175, 181.
Defendants oppose the motions. Dkt. No. 182 (“Response”).
II.

BACKGROUND
In November 2014, Plaintiff commenced this action seeking relief for an alleged violation

of his constitutional rights during his confinement at Upstate Correctional Facility (“Upstate
C.F.”). Compl. at 3. Plaintiff’s allegations involve incidents that occurred at Upstate C.F. from
June 12, 2013 through November 4, 2014. Id. In January 2015, Plaintiff filed a motion for
injunctive relief seeking an order directing defendants to “stop ongoing harms related to double
cell housing” and for an order protecting him from physical injury and attacks by guards and
inmates. Dkt. Nos. 6, 7, 8, 9. In a Decision and Order filed in April 2015, after review of the
Complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A, the Court found that Plaintiff’s
Eighth Amendment claims and supervisory claims against nineteen defendants survived review

and required a response. Dkt. No. 14 (“April Order”) at 45. In the April Order, the Court also
denied Plaintiff’s request for preliminary injunctive relief. Id. at 41.
In February 2016, Plaintiff was transferred to Southport Correctional Facility (“Southport
C.F.”). Dkt. No. 86. In March 2016, Plaintiff filed a second motion for injunctive relief, this time
related to incidents that occurred at Southport C.F. Dkt. Nos. 95, 107. Plaintiff claimed that
various individuals, who are not parties to this action, refused to allow Plaintiff to send copies of
his documents to the Court and to defense counsel, prevented him from mailing exhibits to
defense counsel, and failed to process his legal mail. Dkt. No. 95 at 1–2. Plaintiff also claimed
that he was not provided with equipment, adequate nutrition, or physical therapy. Id. And
Plaintiff asserted that he was deprived of his freedom of speech and confined to a “feces
infested” and “hostile” environment. Dkt. No. 107 at 2.
On June 5, 2016, the Court issued a Decision and Order denying Plaintiff’s motion,
holding that, under the circumstances of this case, Plaintiff’s request for injunctive relief against
nonparties was improper. Dkt. No. 119 (“June Order”) at 3. The Court also concluded that
Plaintiff failed to substantiate any allegations of irreparable harm with evidence in admissible
form or to demonstrate, with evidence, a likelihood of success on the merits of his underlying
claims, or sufficiently serious questions going to the merits and a balance of hardships tipping
decidedly in his favor. Id. at 4. The Court reasoned that Plaintiff sought relief for incidents that
were unrelated to his underlying causes of action. Id. at 5.

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III.

DISCUSSION
A. Motion for Preliminary Injunction
The law of preliminary injunctions was discussed in the June Order and will not be

restated herein. Id. at 1–2. Plaintiff is presently confined at Southport C.F. Dkt. No. 86. In his
third motion for injunctive relief, Plaintiff claims that staff at Southport C.F. are not providing
sufficient legal supplies, including pens. Dkt. No. 181 at 1, 3, 7. Plaintiff claims that it is difficult
for him to provide the Court and opposing counsel with copies of his submissions. Id. at 1, 5.
Plaintiff seeks an order directing the staff at Southport C.F. to provide Plaintiff with legal
supplies and access to a photocopy machine. Id. at 1. Plaintiff wants a mandatory injunction, so
the Court will use the “clear and substantial” showing of a likelihood of success standard.
Defendants oppose the motion arguing that (1) Plaintiff’s motion is frivolous, (2) Plaintiff
fails to explain what he has been prevented from copying or mailing or how that has impaired his
ability to prosecute any lawsuit, and (3) Plaintiff is capable of filing multiple documents in his
various cases. Resp. at 4–5.
Currently, Plaintiff has multiple additional actions pending in the Northern District of
New York in which he has requested the same relief. In November 2016, Plaintiff filed a similar
motion for injunctive relief in White v. Tatro, No. 15-CV-1489, 2016 WL 7735757 (N.D.N.Y.
Nov. 28, 2016). In a Report-Recommendation filed on November 28, 2016, Magistrate Judge
Andrew T. Baxter denied Plaintiff’s request because he sought “speculative relief against
individuals who are not defendants in this action.”1 Id. at *8.
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In January 2017, United States District Judge Brenda K. Sannes issued an Order
adopting the Report-Recommendation in its entirety. White v. Tatro, No. 15-CV-1489, 2017 WL
120949 (N.D.N.Y. Jan. 12, 2017).
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In White v. Allen, No. 14-CV-1105 (N.D.N.Y. Jan. 10, 2016), Plaintiff filed a motion for
injunctive relief raising the same arguments set forth here with the same documentary evidence
annexed to the motion papers. In a Decision and Order filed in January 2017, the Court denied
Plaintiff’s motion because he sought relief against employees of Southport C.F. who were not
parties to the action. Id. at 4.
Here, the Court, consistent with the orders in Plaintiff’s other actions, denies Plaintiff’s
request for injunctive relief because the staff at Southport C.F. are not defendants in this action.
See In re Rationis Enter., Inc. of Pan., 261 F.3d 264, 270 (2d Cir. 2001) (“A court may not grant
a final, or even an interlocutory, injunction over a party over whom it does not have personal
jurisdiction.”); Doctor’s Assocs., Inc. v. Reinert & Duree, P.C., 191 F.3d 297, 302–03 (2d Cir.
1999) (same); United States v. Regan, 858 F.2d 115, 120 (2d Cir. 1988) (same).2
Even if the Court could provide relief for the alleged wrongdoing at Southport C.F., the
motion would still be denied because Plaintiff’s Complaint does not contain any allegations
about his access to courts and he cannot establish a likelihood of success on the merits of his
underlying claim. See Mitchell v. N.Y. State Dep’t of Corr. Srvs., No. 06-CV-6278, 2011 WL
5326054, at *3 (W.D.N.Y. Nov. 3, 2011) (denying relief where the facts underlying the request
for injunctive relief are essentially unrelated to the underlying facts of the claims in this action,

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Under the All-Writs-Act, the Court has authority to “enjoin and bind non-parties to an
action when needed to preserve the court’s ability to reach or enforce its decision in a case over
which it has proper jurisdiction.” In re Baldwin-United Corp., 770 F.2d 328, 338 (2d Cir. 1985).
Because Plaintiff has filed at least fourteen lawsuits in this district alone since 2010, White v.
Dishaw, No. 14-CV-2, 2015 WL 5513072, at * 3 n.3 (N.D.N.Y. Sep. 15, 2015), it is not clear
whether his motion for injunctive relief refers to his ability to pursue his claims in this particular
case. But based on the assertions made in Plaintiff’s motions, the Court is not persuaded that
such an injunction is necessary in this case.
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except for the fact that they arise in the prison context).
Upon review, the Court finds that Plaintiff has not made the showing required for the
issuance of mandatory injunctive relief. Plaintiff has also failed to demonstrate a likelihood of
succeeding on the merits of his claims, or to provide evidence of sufficiently serious questions
going to the merits of the claim and a balance of hardships tipping decidedly toward him. See
Covino v Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (describing the standard for a preliminary
injunction). Plaintiff’s motion for preliminary injunctive relief is denied in its entirety.
B. Motion for Contempt
Plaintiff moves to hold “non-parties in contempt of court.” Dkt. No. 174 at 1. Plaintiff
claims that “non-parties” are deliberately disobeying the Court’s prior orders and refusing to
provide him with access to copies, a notary, a pen, envelopes, and “Form #2708.” Id. at 1–2; Dkt.
No. 173 at 1. Plaintiff identifies the non-parties as Anthony Lowe, Benjamin Rondeau, Michael
Sheahan, and Michael Desurgomaster. Dkt. No. 173 at 1. Plaintiff alleges that these people
continue to demand that he provide a court order for access to the supplies he wants. Id.
Defendants oppose Plaintiff’s motion, arguing that “it is not clear who plaintiff wants this Court
to hold in contempt.” Resp. at 2.
A party or nonparty “may be held in civil contempt for failure to comply with a court
order if ‘(1) the order the contemnor failed to comply with is clear and unambiguous, (2) the
proof of noncompliance is clear and convincing, and (3) the contemnor has not diligently
attempted to comply in a reasonable manner.’” Paramedics Electromedicina Comercial, Ltda v.
GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004); accord Zerega Ave. Realty
Corp. v. Hornbeck Offshore Transp., LLC., No. 04-CV-9651, 2011 WL 3875307, at *3
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(S.D.N.Y. Aug. 25, 2011).
A review of the Court’s orders issued to date belies Plaintiff’s claims. In June 2016,
Plaintiff claimed that he was unable to access his legal mail and thus could not comply with the
Court’s order to supplement his Complaint. Dkt. Nos. 115, 122. On June 27, 2016, the Court
issued an Order stating:
The Court reiterates that this case is open and active (see Dkt. No.
120), and that mailings to the Court meet the definition of “legal
mail” under N.Y. Comp. Codes R. & Regs. tit. 7, § 721.3(a)(3)(iv)(a).
Under that regulation, Plaintiff should thus be afforded an advance
for postage needed to submit filings in this action. . . . The Court also
notes receipt of Plaintiff’s Letter (Dkt. No. 123) regarding legal
supplies at Southport Correctional Facility. Upon review, the Court
has not identified any specific request for judicial intervention within
Plaintiff’s Letter, but will remain conscious of Plaintiff’s alleged
difficulties obtaining legal supplies during the progression of this
case.
Dkt. No. 124.
In a Decision and Order filed July 7, 2016, the Court denied Plaintiff’s motion for
expanded discovery, access to postage, recusal of Magistrate Judge Baxter, in camera review of
documents, and appointment of counsel. Dkt. No. 124. On July 14, 2016, the Court denied
Plaintiff’s motion for “expanded discovery, access to postage to enable access to courts, in
camera review of documents, and appointment of counsel” as duplicative. Dkt. No. 137.
On September 30, 2016, the Court denied Plaintiff’s letter motion requesting the Court’s
assistance with issues regarding lack of supplies for pursuing legal matters. Dkt. No. 159.
Plaintiff was directed to file an appropriate grievance in accordance with the facility’s grievance
procedures. Id. On October 5, 2016, an Order was issued reminding Plaintiff that “if he believes
that his current facility is not acting consistently with the court’s orders or with DOCCS
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Directives, plaintiff should file an appropriate grievance in accordance with the facility’s
grievance procedures.” Dkt. No. 161.
While the Court has issued several orders related to Plaintiff’s requests for legal supplies,
those orders do not compel nonparties, or any individual at Southport C.F., to take any action.
Accordingly, the nonparties cannot be found to have violated the terms of any order. As Plaintiff
has failed to present “clear and convincing evidence” that the nonparties failed comply with clear
and unambiguous court orders, his motion for contempt is denied.
C. Defendants’ Request for Anti-Filing and/or Bar Order
In opposition to Plaintiff’s motions, Defendants seek an anti-filing injunction and/or bar
order due to Plaintiff’s “abusive conduct” and “frivolous and vexatious filings.” Resp. at 4.
A federal district court may, after providing an appropriate opportunity to be heard,
prohibit a vexatious litigant from filing, in that particular court, any action pro se (that is, without
counsel), without prior leave of that court. See Hong Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir.
2005) (“If a litigant has a history of filing ‘vexatious, harassing or duplicative lawsuits,’ courts
may impose sanctions, including restrictions on future access to the judicial system.” (quoting
Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986))); Moates v. Barkley, 147 F.3d 207, 208
(2d Cir. 1998) (“[T]he district court may not impose a filing injunction on a litigant sua sponte
without providing the litigant with notice and an opportunity to be heard.”); In re Sassower, 20
F.3d 42, 44 (2d Cir. 1994) (where a pro se plaintiff has demonstrated a “clear pattern of abusing
the litigation process by filing vexatious and frivolous complaints,” a “leave to file” requirement
may be instituted by the court as an appropriate sanction); Azubuko v. Unknown Bos. Police
Officers, No. 08-CV-0330, 2008 WL 1767067, at *1 (N.D.N.Y. Apr. 16, 2008). “[L]itigious
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affinity alone does not support the grant of an injunction, for ‘access to the Courts is one of the
cherished freedoms of our system of government.’” Carlin v. Gold Hawk Joint Venture, 778 F.
Supp. 686, 694 (S.D.N.Y. 1991) (quoting Kane v. City of New York, 468 F. Supp. 586, 590
(S.D.N.Y. 1979)).
The Second Circuit has identified several factors that should be considered in determining
whether to restrict a litigant’s future access to the court:
(1) the litigant’s history of litigation and in particular whether it
entailed vexatious, harassing or duplicative lawsuits; (2) the litigant’s
motive in pursuing the litigation, e.g., does the litigant have an
objective good faith expectation of prevailing?; (3) whether the
litigant is represented by counsel; (4) whether the litigant has caused
needless expense to other parties or has posed an unnecessary burden
on the courts and their personnel; and (5) whether other sanctions
would be adequate to protect the courts and other parties.
Iwachiw v. N.Y. State Dep’t of Motor Vehicles, 396 F.3d 525, 528 (2d Cir. 2005).
Here, Defendants have failed to establish that Plaintiff has demonstrated a pattern of
filing multiple frivolous motions arising out of the same underlying facts, without any objective
good faith expectation of prevailing; that his actions have been vexatious and harassing and
posed an unnecessary burden on the courts and their personnel; or that other sanctions may not be
adequate to protect the courts and parties. Accordingly, to the extent that Defendants request an
anti-filing injunction prohibiting further submissions in this action without leave of the Chief
Judge, that request is denied.
IV.

CONCLUSION
Accordingly, it is hereby:

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ORDERED, that Plaintiff’s motions for injunctive relief and for a contempt order (Dkt.
Nos. 173, 174, 175, and 181) are DENIED; and it is further
ORDERED, that Defendants’ request for an anti-filing injunction (Dkt. No. 182) is
DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

March 08, 2017
Albany, New York

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