McMillian v. Graham et al

Filing 94

DECISION AND ORDER: ORDERED that plaintiff's motion for preliminary injunctive relief (Dkt. No. 92 ) is DENIED. Signed by Chief Judge Glenn T. Suddaby on 12/13/16. (Copy served via regular mail on plaintiff)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

HERMAN CARLEE MCMILLIAN,
Plaintiff,
Lead Case
v.

9:15-CV-0241
(GTS/DJS)

OFFICER VINCE KONECNY, et al.,
Defendants.

HERMAN CARLEE MCMILLIAN,
Plaintiff,
Member Case
v.

9:15-CV-1303
(GTS/DJS)

CORRECTION OFFICER RAMSEY, et al.,
Defendants.

APPEARANCES:

OF COUNSEL:

HERMAN CARLEE MCMILLIAN
90-T-5238
Plaintiff, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Attorney for Defendant Konecny
The Capitol
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 is plaintiff's motion for preliminary injunctive relief. Dkt. No.
92. Defendants oppose the motion. Dkt. No. 93.
"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
"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,
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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).
Plaintiff alleges that defendant Daniel and other unidentified correctional officers at
Auburn Correctional Facility are harassing plaintiff by, among other things, calling him a rapist
and a child molester. Dkt. No. 92 at 1-3. Plaintiff claims that Superintendent Graham has
directed the correctional officers to harass plaintiff. Id. at 4-5. As a result of the harassment,
plaintiff claims that he will suffer irreparable harm because he is afraid to go to lunch at the
facility kitchen and is therefore missing one of his three required meals every day. Id. at 1-3.
Defendants oppose the motion. Dkt. No. 93. In addition to contending that plaintiff has not
made the showing required for the extraordinary relief requested, defendants urge denial of
the motion because plaintiff seeks an improper "obey the law" injunction against persons who
are not parties to this action. Id. at 1-3.
Upon review, the Court finds that plaintiff's motion must be denied. While plaintiff
seeks preliminary injunctive relief to restrain the defendants from harassing him, which in turn
is allegedly denying plaintiff one meal daily, 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
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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."). Moreover, insofar as plaintiff seeks relief against unidentified
corrections staff and the Superintendent of Auburn Correctional Facility, who are not
defendants in this 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 allegation that he
is now being denied one meal per day is not related to the claims in the consolidated
complaint. See generally Dkt. No. 89.
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WHEREFORE, it is hereby
ORDERED that plaintiff's motion for preliminary injunctive relief (Dkt. No. 92) is
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.
Dated:

December 13, 2016
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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