McMillian v. Graham et al
DECISION AND ORDER: ORDERED that plaintiff's motions for preliminary injunctive relief (Dkt. Nos. 109 , 110 , 112 , and 113 ) are DENIED. Signed by Chief Judge Glenn T. Suddaby on 9/6/17. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HERMAN CARLEE MCMILLIAN,
OFFICER VINCE KONECNY, et al.,
HERMAN CARLEE MCMILLIAN,
CORRECTION OFFICER RAMSEY, et al.,
HERMAN CARLEE MCMILLIAN
Plaintiff, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Represented Defendants
Albany, New York 12224
GLENN T. SUDDABY
Chief United States District Judge
RYAN W. HICKEY, ESQ.
Ass't Attorney General
DECISION AND ORDER
Presently before the Court in this consolidated civil rights action commenced by
plaintiff Herman Carlee McMillian are plaintiff's motions for preliminary injunctive relief. Dkt.
Nos. 109 (the "First Motion"), 110 (the "Second Motion"), 112 (the "Third Motion"); 113
("Fourth Motion"). Defendants oppose the First and Second motions. Dkt. No. 111.1
"In general, district courts may grant a preliminary injunction where a plaintiff
demonstrates 'irreparable harm' and meets one of two related standards: 'either (a) a
likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of
its claims to make them fair ground for litigation, plus a balance of the hardships tipping
decidedly in favor of the moving party.'" Otoe-Missouria Tribe of Indians v. New York State
Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (quoting Lynch v. City of N.Y., 589
F.3d 94, 98 (2d Cir. 2009) (internal quotation marks omitted)). However, when the moving
party seeks a "mandatory injunction that alters the status quo by commanding a positive act,"
the burden is even higher. Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (citing
Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35
n.4 (2d Cir. 2010) (internal quotation marks omitted)). 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." Cacchillo, 638 F.3d at 406 (citing Citigroup Global Mkts., 598 F.3d at 35 n.4) (internal
quotation marks omitted)); see also Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc.,
60 F.3d 27, 33-34 (2d Cir. 1995) (a plaintiff seeking a mandatory injunction must make a
Plaintiff filed the Third and Fourth Motions after defendants responded to the First and Second
Motions. Since the Third and Fourth Motions requested similar relief, the Court did not direct a further response.
"clear" or "substantial" showing of a likelihood of success on the merits of his claim). The
same standards used to review a request for a preliminary injunction govern consideration of
an application for a temporary restraining order. Local 1814, Int'l Longshoremen's Ass'n,
AFL-CIO v. New York Shipping Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992); Perri v.
Bloomberg, No. 06-CV-0403, 2008 WL 2944642, at * 2 (E.D.N.Y. Jul. 31, 2008). The district
court has wide discretion in determining whether to grant preliminary injunctive relief. Moore
v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 511 (2d Cir. 2005). "In the prison
context, a request for injunctive relief must always be viewed with great caution so as not to
immerse the federal judiciary in the management of state prisons." Fisher v. Goord, 981 F.
Supp. 140, 167 (W.D.N.Y. 1997) (citing Farmer v. Brennan, 511 U.S. 825, 846-47 (1994))
(other citations omitted).
Construing each of the motions liberally, plaintiff alleges that defendants Walters
and/or Ramsey confiscated some of his surgical records and legal materials and refuse to
return them. First Motion at 5-6; Second Motion at 2-3, 5-6; Third Motion at 7, 9-10; Fourth
Motion at 2-4.2 Plaintiff seeks a court order directing return of those items. Id. Plaintiff also
complains that he is being harassed and threatened by defendants Walters and Ramsey
(First Motion at 6-7); that correctional officers are harassing him when he goes to the mess
hall for lunch, so he has chosen not go to eat lunch (Second Motion at 4); he has been
moved to a cell where very little water comes out of the faucet (id. at 11); and he was denied
proper medical care during a surgery performed by a Dr. Jay Vickers Dewell (Third Motion at
1-2; Fourth Motion at 6).
References to the pages in the documents are to the page numbers automatically assigned by this
Court's Case Management Electronic Case Filing System ("CM/ECF").
In opposition to First and Second Motions, defendants contend that plaintiff has not
made the showing required for the extraordinary relief requested, and also urge denial of the
motion because plaintiff seeks an improper "obey the law" injunction and relief against
persons who are not parties to this action. Dkt. No. 111 at 1-3.
Upon review, the Court finds that plaintiff's requests for injunctive relief directing the
return of his legal materials and surgical records must be denied. Plaintiff has 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. See 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 Res., Inc., 792 F. Supp. 924, 928 (S.D.N.Y. 1992)
("Preliminary injunctive relief cannot rest on mere hypotheticals."). While the Court does not
condone misconduct of any kind, and is mindful that plaintiff's allegations regarding the
confiscation of his legal papers could implicate his constitutional right to access the courts
under the First Amendment,3 plaintiff has not made a showing sufficient to warrant the
issuance of any form of relief regarding his access to legal materials relating specifically to
Insofar as plaintiff seeks relief against unidentified corrections staff who are harassing
him in the mess hall during lunch, or Dr. Jay Vickers Dewell, who are not defendants in this
See e.g., Willey v. Kirkpatrick, 801 F.3d 51, 69 (2d Cir. 2015) ("Legal documents have characteristics
that differentiate them from mere 'property' whose destruction can be adequately remedied by a generic
property-deprivation state law. Their theft or destruction, for example, may irrevocably hinder a prisoner's efforts
to vindicate legal rights.").
action, the requested relief is not available and the motion must be denied. Except in limited
circumstances not applicable here, a court may not order injunctive relief as to non-parties to
an action. See Fed. R. Civ. P. 65(d) ("[e]very order granting an injunction . . . binds only . . .
the parties."); United States v. Regan, 858 F.2d 115, 120 (2d Cir. 1988).
Finally, "'[t]o 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, e.g., Scarborough v. Evans, No. 9:09-CV-0850
(NAM/DEP), 2010 WL 1608950, at *2 (N.D.N.Y. Apr. 20, 2010) (motion for preliminary
injunction alleging use of excessive force and denial of medical care by non-parties denied
where complaint alleged denial of mental health care and proper conditions of confinement);
Lewis v. Johnston, No. 9:08-CV-0482 (TJM/ATB), 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). Plaintiff's allegations
concerning harassment which is preventing him from eating lunch, inadequate water flow in
the faucet of his cell, and inadequate medical care are not related to the allegations set forth
in this action.4
Based upon the foregoing, the Court finds that plaintiff has not made the showing
required for the issuance of preliminary injunctive relief. As a result, plaintiff's motions are
To the extent that plaintiff may be attempting to challenge a criminal conviction, that relief is not
available in the context of an action commenced pursuant to 42 U.S.C. § 1983.
WHEREFORE, it is hereby
ORDERED that plaintiff's motions for preliminary injunctive relief (Dkt. Nos. 109, 110,
112, and 113) are DENIED; and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on the parties.
IT IS SO ORDERED.
September 6, 2017
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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