McMillian v. Graham et al
Filing
86
DECISION AND ORDER AND ORDER TO SHOW CAUSE: ORDERED that Magistrate Judge Stewart's Report-Recommendation (Dkt. No. 125, 9:15-cv-241) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion for summary judgment (Dkt. No. 10 3, 9:15-cv-241) is GRANTED. ORDERED that Plaintiff's Complaints in these consolidated actions are DISMISSED for failure to exhaust his available administrative remedies pursuant to the Prisoner Litigation Reform Act. ORDERED that Plaintiff' s six motions for a Temporary Restraining Order or Preliminary Injunction (Dkt. Nos. 127-132, 9:15-cv-241) are DENIED as moot. ORDERED that Plaintiff shall, within FOURTEEN (14) DAYS of the date of this Order, show cause, in writing, why he should no t be enjoined from filing any future pleadings or documents of any kind (including motions) in the Northern District of New York pro se without prior permission of the Chief Judge or his or her designee (except pleadings or documents in the case that is currently pending before District Judge D'Agostino, McMillian v. Walters, 9:16-CV-0277, until that case is closed); The Clerk of the Court is directed to open a new pre-filing case number 9:18-pf-2 and file a copy of this Decision and Order in that pre-filing case. Plaintiff's response to this Order to Show Cause shall be filed in case number 9:18-pf-2. ORDERED that, if Plaintiff does not fully comply with this Order to Show Cause, the Court will issue a subsequent order, without further explanation, permanently so enjoining Plaintiff. Signed by Chief Judge Glenn T. Suddaby on 2/9/18. (served on plaintiff by regular and certified mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
HERMAN CARLEE McMILLIAN,
Plaintiff,
9:15-CV-0241
(GTS/DJS)
v.
CORRECTION OFFICER VINCE KONECNY; and
JOHN DOES 1-10;
LEAD
Defendants.
____________________________________________
HERMAN CARLEE McMILLIAN,
Plaintiff,
v.
CORRECTION OFFICER RAMSEY;
CORRECTION OFFICER DANIEL WALTERS; and
CORRECTION OFFICER VINCE KONECNY,
9:15-CV-1303
(GTS/DJS)
MEMBER
Defendants.
____________________________________________
APPEARANCES:
HERMAN CARLEE McMILLIAN, 90-T-5238
Plaintiff, Pro Se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
GLENN T. SUDDABY, Chief United States District Judge
RYAN W. HICKEY
Assistant Attorney General
DECISION and ORDER
and ORDER to SHOW CAUSE
Currently before the Court, in these consolidated pro se prisoner civil rights actions filed
by Herman Carlee McMillian (“Plaintiff”) against the above-captioned employees of New York
State Department of Corrections and Community Supervision at Auburn Correctional Facility
(“Defendants”), are the following: (1) United States Magistrate Judge Daniel J. Stewart’s
Report-Recommendation recommending that Defendants’ motion for summary judgment be
granted, and that Plaintiff’s Complaints be dismissed for failure to exhaust his available
administrative remedies pursuant to the Prisoner Litigation Reform Act; (2) Plaintiff’s Objection
to the Report-Recommendation; and (3) Plaintiff’s six motions for a Temporary Restraining
Order or Preliminary Injunction. (Dkt. Nos. 125, 126, 127-32.) For the reasons set forth below,
the Report-Recommendation is accepted and adopted in its entirety; Defendants’ motion for
summary judgment is granted; Plaintiff’s Complaints are dismissed; Plaintiff’s six motions for a
Temporary Restraining Order or Preliminary Injunction are denied as moot; and he is directed to
show cause why he should not be enjoined from filing any future pleadings or documents of any
kind (including motions) in the Northern District of New York pro se without prior permission
of the Chief Judge or his or her designee.
I.
REVIEW OF REPORT-RECOMMENDATION
Even when construed with the utmost of special solicitude, Plaintiff’s Objection to the
Report-Recommendation fails to assert a specific challenge to the Report-Recommendation.
(Compare Dkt. No. 126 [Plf.’s Obj.] with Dkt. No. 125 [Report-Recommendation].)1 Rather,
1
To be “specific,” the objection must, with particularity, “identify [1] the portions
of the proposed findings, recommendations, or report to which it has an objection and [2] the
basis for the objection.” N.D.N.Y. L.R. 72.1(c); see also Mario v. P&C Food Markets, Inc., 313
2
Plaintiff merely reiterates arguments previously submitted to Magistrate Judge Stewart.
(Compare Dkt. No. 126 [Plf.’s Obj.] with Dkt. No. 6 [Plf.’s Response to Defs.’ Motion for
Summary Judgment].) As a result, the Court need review the Report-Recommendation for only
clear error.2 When performing a “clear error” review, “the court need only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation.”3
Based upon a careful review of this matter, the Court can find no clear error in the
Report-Recommendation: Magistrate Judge Stewart employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. (Dkt. No. 125.) As a result, the
Court accepts and adopts the Report-Recommendation for the reasons stated therein. (Id.)
F.3d 758, 766 (2d Cir. 2002) (“Although Mario filed objections to the magistrate's report and
recommendation, the statement with respect to his Title VII claim was not specific enough to
preserve this claim for review. The only reference made to the Title VII claim was one sentence
on the last page of his objections, where he stated that it was error to deny his motion on the
Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of
Motion for Partial Summary Judgment.’ This bare statement, devoid of any reference to specific
findings or recommendations to which he objected and why, and unsupported by legal authority,
was not sufficient to preserve the Title VII claim.”).
2
When an objection merely reiterates the same arguments made by the objecting
party in its original papers submitted to the magistrate judge, the Court subjects that portion of
the report-recommendation challenged by those arguments to only a clear error review. See
Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers or arguments does
not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or Local Civil Rule
72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F. Supp. 380, 382
(W.D.N.Y. 1992) (explaining that court need not consider objections that merely constitute a
"rehashing" of the same arguments and positions taken in original papers submitted to the
magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL 3761902, at
*1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue, 07-CV-1077,
2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte v. N.Y.S. Div.
of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe, J.).
3
Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Batista
v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am
permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection
is made, so long as those sections are not facially erroneous.”) (internal quotation marks
omitted).
3
Defendants’ motion for summary judgment is granted, and Plaintiff’s Complaints are dismissed.
II.
PLAINTIFF’S SIX MOTIONS FOR INJUNCTIVE RELIEF
Because one of the issues presented by a motion for injunctive relief is whether the
movant has shown a likelihood of success on the merits of a claim, the relief sought by a plaintiff
in a motion for a temporary restraining order or preliminary injunction must relate to the claims
of the plaintiff’s complaint. See Bain v. Hofmann, 06-CV-0168, 2007 WL 1848035, at *3 (D.
Vt. June 25, 2007) (denying a motion for injunctive relief because, inter alia, “[t]he claims set
forth in Bain's motion are not claims that were presented in either his initial or his amended
complaints”).4
As a result, where no complaint remains pending, no motion for a temporary restraining
order or preliminary injunction remains available. See Wheeler v. Cohen, 15-CV-0170, 2015
WL 6872338, at *2 (D. Vt. Nov. 9, 2015) (“The Court will first consider the motion to dismiss,
as dismissal would render moot the matter of preliminary injunctive relief.”); Leed Indus. Inc. v.
N.Y. State Dep’t of Labor, 09-CV-9456, 2010 WL 882992, at *1 (S.D.N.Y. March 8, 2010) (“On
March 1, 2010, the Court issued a ‘bottom-line’ order granting defendants' motion to dismiss,
which rendered moot plaintiff's motion for a preliminary injunction and expedited hearing.”).
Here, because no claims remain pending in these actions, Plaintiff’s six motions for a
Temporary Restraining Order or Preliminary Injunction are denied as moot.
4
See also Gordon v. Watts, 06-CV-0450, 2008 WL 717689, at *1 (N.D.N.Y. Mar.
17, 2008) (Kahn, J.) (“[T]he relief that Plaintiff seeks by way of injunction [must] relate to the
allegations contained in the . . . complaint . . . .”); accord Allen v. Brown, 96-CV-1599, 1998 WL
214418, at *4 (N.D.N.Y. Apr. 28, 1998) (Pooler, J., adopting Report-Recommendation of
DiBianco, M.J.); Candelaria v. Greifinger, 96-CV-0017, 1997 WL 176314, at *11 (N.D.N.Y.
Apr. 9, 1997) (Pooler, J., adopting Report-Recommendation of Scanlon, M.J.); Chapdelaine v.
Keller, 95-CV-1126, 1996 WL 597848, at *4 (N.D.N.Y. Oct. 16, 1996) (Pooler, J.).
4
III.
APPROPRIATENESS OF AN ORDER TO SHOW CAUSE
It is well settled that “[a] district court may, in its discretion, impose sanctions against
litigants who abuse the judicial process.” Shafii v. British Airways, PLC, 83 F.3d 566, 571 (2d
Cir. 1996). Where a litigant persists in the filing of vexatious and frivolous suits, it may be
appropriate to place certain limitations on the litigant’s future access to the courts. See Hong
Mai Sa v. Doe, 406 F.3d 155, 158 (2d Cir. 2005) (citing Iwachiw v. New York State Dep’t of
Motor Vehicles, 396 F.3d 525, 528 [2d Cir. 2005]); see also Shafii, 83 F.3d at 571 (“The filing of
repetitive and frivolous suits constitutes the type of abuse for which an injunction forbidding
further litigation may be an appropriate sanction.”). Before imposing such limitations, the court
should consider the following:
(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, 396 F.3d at 528 (quoting Safir v. United States Lines, Inc., 792 F.2d 19, 24 [2d Cir.
1986]).
Under the circumstances, the Court finds that grounds may exist to enjoin Plaintiff from
filing any future pleadings or documents of any kind (including motions) in this District pro se
without prior permission of the Chief Judge or his or her designee.
Since he was incarcerated in 1990, Plaintiff has filed twenty-two (22) pro se civil rights
cases in this District. Two of those cases are, of course, addressed above in this Decision and
Order. A third case is currently pending before U.S. District Judge Mae A. D’Agostino, who has
received a Report-Recommendation from U.S. Magistrate Judge Daniel J. Stewart
5
recommending dismissal for failure to exhaust administrative remedies. See McMillian v.
Walters, 16-CV-0277, Report-Recommendation (N.D.N.Y. filed Dec. 18, 2017) (Stewart, M.J.).
Of the remaining nineteen (19) cases, ten (10) have been dismissed for failure to prosecute
and/or failure to pay the required filing fee,5 and nine (9) have been dismissed as frivolous and/or
for failure to state a claim upon which relief can be granted.6 (He obtained his third strike for
purposes of the “Three Strikes Rule” on May 11, 2006.)7 Finally, it is worth noting that, despite
receiving a warning from District Judge D’Agostino on September 8, 2017, regarding the
possible imposition of a Bar Order due to the vexatiousness of filing successive (nearly identical
5
See McMillian v. Leonardo, 92-CV-1322, Order (N.D.N.Y. filed Dec. 28, 1992)
(Scullin, J.); McMillian v. Granger, 92-CV-1299, Order (N.D.N.Y. filed Dec. 30, 1992) (Scullin,
J.); McMillian v. Senkowski, 92-CV-1032, Order (N.D.N.Y. filed May 21, 1993) (Scullin, J.);
McMillian v. Duquette, 92-CV-0264, Order (N.D.N.Y. filed July 26, 1994) (McAvoy, C.J.);
McMillian v. Stevens, 91-CV-1374, Judgment (N.D.N.Y. filed Oct. 11, 1994) (McCurn, J.);
McMillian v. Ripley, 93-CV-0052, Order (N.D.N.Y. filed Apr. 25, 1995) (Cholakis, J.);
McMillian v. Newell, 92-CV-0781, Order (N.D.N.Y. filed June 5, 1995) (Cholakis, J.);
McMillian v. Alice Hyde Med. Ctr., 08-CV-0375, Decision and Order (N.D.N.Y. filed Apr. 10,
2008) (Kahn, J.); McMillian v. Dewell, 10-CV-0524, Decision and Order (N.D.N.Y. filed July
22, 2010) (Suddaby, J.); McMillian v. Dewell, 16-CV-0472, Decision and Order (N.D.N.Y. filed
June 8, 2016) (Kahn, S.J.).
6
See McMillian v. Coughlin, 92-CV-1154, Order (N.D.N.Y. filed Sept. 4, 1992)
(Cholakis, J.); McMillian v. Holdrige, 92-CV-0847, Decision and Order (N.D.N.Y. filed Aug.
19, 1993) (McAvoy, C.J.); McMillian v. Johnson, 00-CV-0508, Decision and Order (N.D.N.Y.
filed May 18, 2000) (Scullin, C.J.); McMillian v. Dew, 00-CV-0508, Decision and Order
(N.D.N.Y. filed June 26, 2001) (Kahn, J.); McMillian v. Dewell, 06-CV-0202, Decision and
Order (N.D.N.Y. filed May 10, 2006) (McAvoy, S.J.); McMillian v. Dewell, 06-CV-0417,
Decision and Order (N.D.N.Y. filed May 11, 2006) (Mordue, C.J.); McMillian v. Dewell, 07CV-1231, Decision and Order (N.D.N.Y. filed Dec. 19, 2007) (Hurd, J.); McMillian v. Dewell,
08-CV-0072, Decision and Order (N.D.N.Y. filed Feb. 19, 2008) (Mordue, C.J.); McMillian v.
Graham, 16-CV-0522, Decision and Order (N.D.N.Y. filed Oct. 21, 2016) (D’Agostino, J.).
7
See McMillian v. Dewell, 07-CV-1231, Decision and Order, art 2-3 (N.D.N.Y.
filed Dec. 19, 2007) (Hurd, J.) (identifying Plaintiff’s third strike as occurring in McMillian v.
Dewell, 06-CV-0417, which was dismissed on May 11, 2006).
6
motions for injunctive relief,8 Plaintiff continued–and indeed increased the frequency of–such
filings in that case.9 A similar increase occurred in this case after the Court warned Plaintiff
regarding the vexatiousness of filing successive (nearly identical) motions for injunctive relief.10
Based on a careful review of Plaintiff’s litigation history in this District (as cited above),
the Court finds that (1) he lacks a good-faith expectation in prevailing in his lawsuits and
motions, (2) he has proven himself to be vexatious and indeed incorrigible when proceeding pro
se, (3) he has caused needless expense to other parties and placed an unnecessary burden on the
Court and its personnel, and (4) he has demonstrated that no lesser sanctions (e.g., such as
dismissal or chastisement) would be adequate to protect the Court and other parties, given his
prior conduct.
8
McMillian v. Walters, 16-CV-0277, 2017 WL 3973932, at *4 (N.D.N.Y. Sept. 9,
2017) (D’Agostino).
9
McMillian v. Walters, 16-CV-0277, Motion for Injunctive Relief (N.D.N.Y. filed
Sept. 29, 2017); McMillian v. Walters, 16-CV-0277, Motion for Injunctive Relief (N.D.N.Y.
filed Oct. 3, 2017); McMillian v. Walters, 16-CV-0277, Motion for Injunctive Relief (N.D.N.Y.
filed Oct. 17, 2017); McMillian v. Walters, 16-CV-0277, Motion for Injunctive Relief #1
(N.D.N.Y. filed Oct. 24, 2017); McMillian v. Walters, 16-CV-0277, Motion for Injunctive Relief
#2 (N.D.N.Y. filed Oct. 24, 2017); McMillian v. Walters, 16-CV-0277, Motion for Injunctive
Relief (N.D.N.Y. filed Nov. 28, 2017); McMillian v. Walters, 16-CV-0277, Motion for
Injunctive Relief (N.D.N.Y. filed Dec. 12, 2017); McMillian v. Walters, 16-CV-0277, Motion
for Injunctive Relief (N.D.N.Y. filed Dec. 21, 2017); McMillian v. Walters, 16-CV-0277,
Motion for Injunctive Relief (N.D.N.Y. filed Jan. 5, 2017); McMillian v. Walters, 16-CV-0277,
Motion for Injunctive Relief (N.D.N.Y. filed Jan. 22, 2017).
10
(Dkt. No. 117 [Text Order advising Plaintiff that future motions for the same
injunctive relief may be stricken]; Dkt. No. 118 [Motion for Injunctive Relief filed Oct. 11,
2017]; Dkt. No. 119 [Motion for Injunctive Relief filed Oct. 17, 2017]; Dkt. No. 121 [Motion for
Injunctive Relief filed Oct. 24, 2017]; Dkt. No. 123 [Motion for Injunctive Relief filed Oct. 31,
2017]; Dkt. No. 124 [Text Order warning Plaintiff that future motions for the same injunctive
relief may result in the current Order to Show Cause]; Dkt. No. 127 [Motion for Injunctive
Relief filed Nov. 17, 2017]; Dkt. No. 128 [Motion for Injunctive Relief filed Nov. 28, 2017];
Dkt. No. 129 [Motion for Injunctive Relief filed Dec. 11, 2017]; Dkt. No. 130 [Motion for
Injunctive Relief filed Jan. 4, 2018]; Dkt. No. 131 [Motion for Injunctive Relief filed Jan. 10,
2018]; Dkt. No. 132 [Motion for Injunctive Relief filed Jan. 17, 2018].)
7
Notwithstanding the overwhelming support for the issuance of a Pre-Filing Order at this
time, fairness dictates that Plaintiff be given notice and an opportunity to be heard. See Iwachiw,
396 F.3d at 529. As a result, he shall have fourteen (14) days from the date of this Order to show
cause, in writing, why he should not be enjoined from filing any future pleadings or documents
of any kind (including motions) in this District pro se without prior permission of the Chief
Judge or his or her designee.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Stewart’s Report-Recommendation (Dkt. No. 125) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 103) is
GRANTED; and it is further
ORDERED that Plaintiff’s Complaints in these consolidated actions are DISMISSED
for failure to exhaust his available administrative remedies pursuant to the Prisoner Litigation
Reform Act; and it is further
ORDERED that Plaintiff’s six motions for a Temporary Restraining Order or
Preliminary Injunction (Dkt. Nos. 127-32) are DENIED as moot; and it is further
ORDERED that Plaintiff shall, within FOURTEEN (14) DAYS of the date of this
Order, show cause, in writing, why he should not be enjoined from filing any future pleadings or
documents of any kind (including motions) in the Northern District of New York pro se without
prior permission of the Chief Judge or his or her designee (except pleadings or documents in
the case that is currently pending before District Judge D’Agostino, McMillian v. Walters, 9:16-
8
CV-0277, until that case is closed);11 The Clerk of the Court is directed to open a new pre-filing
case number 9:18-pf-2 and file a copy of this Decision and Order in that pre-filing case.
Plaintiff’s response to this Order to Show Cause shall be filed in case number 9:18-pf-2; and it is
further
ORDERED that, if Plaintiff does not fully comply with this Order to Show Cause, the
Court will issue a subsequent order, without further explanation, permanently so enjoining
Plaintiff; and it is further
ORDERED that the Clerk shall provide a copy of this Order to Show Cause to Plaintiff
by certified mail.
Dated: February 9, 2018
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge
11
This injunction would apply to, among other things, continued filings by Plaintiff
in any actions filed pro se by him in state court and removed by the defendant to this Court.
9
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