McMillian v. Graham et al
DECISION AND ORDER: ORDERED that plaintiff's motions for injunctive relief (Dkt. Nos. 30 , 32 and 34 ) are DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 12/30/16. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HERMAN CARLEE MCMILLIAN,
HERMAN CARLEE MCMILLIAN
Plaintiff, pro se
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
MAE A. D'AGOSTINO
United States District Judge
DECISION and ORDER
Pro se plaintiff Herman Carlee McMillian commenced this civil rights action in the
United States District Court for the Eastern District of New York ("Eastern District") asserting
claims arising out of his confinement in the custody of the New York State Department of
Corrections and Community Supervision ("DOCCS"). See Compl., generally. In March 2016,
the Court transferred this matter to the Northern District of New York ("Northern District").
Dkt. No. 5. Presently before the Court are plaintiff's second, third, and fourth motions for
injunctive relief. Dkt. Nos. 30, 32, and 34.
In February 2016, plaintiff commenced this action seeking relief for the alleged
violation of his constitutional rights during his confinement at Auburn Correctional Facility
("Auburn C.F."). See Compl. at 2. Specifically, plaintiff alleged that defendant Correctional
Officer Daniel Walters ("Walters") used excessive force during an incident in plaintiff's cell on
January 28, 2016. See id. at 4, 5. Plaintiff also claimed that Walters was motivated to attack
him because plaintiff filed a lawsuit against Walters. See id. at 4. Upon review of the
complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A, the Court found that the
following claims survived sua sponte review: (1) Eighth Amendment excessive force claims
against Walters; and (2) retaliation claims against Walters. Dkt. No. 16 at 12-14. The Court
also dismissed plaintiff's claims against defendant Superintendent Harold Graham
("Graham"), without prejudice, for failure to state a claim.1 See id. at 11.
On March 23, 2016, plaintiff filed a motion for preliminary injunctive relief claiming that
Walters threw water in his cell, refused to deliver legal papers, and read plaintiff's legal mail.
Dkt. No. 9; see also Dkt. Nos. 10 and 14 (submission in support). By Decision and Order
filed on June 16, 2016 (the "June Order"), the Court denied plaintiff's motion. Dkt. No. 21.
In the renewed motions for injunctive relief, plaintiff claims that on September 13,
2016, as he was returning from breakfast, unidentified officers at Auburn C.F. harassed him,
called him a "rapist," and referred to plaintiff as a "child molester." See Dkt. No. 30 at 1.
Plaintiff also contends that on October 3, 2016 and October 11, 2016, Walters circulated
material about plaintiff's criminal case resulting in additional harassment by "guards." See
Plaintiff did not file an amended complaint.
Dkt. No. 34 at 1. Plaintiff alleges that officers are harassing him, at Graham's behest, in
retaliation for plaintiff filing a habeas corpus petition. See Dkt. No. 30 at 1-2; Dkt. No. 34 at 2,
6. Plaintiff claims that he is suffering "irreparable harm" due to the harassment and refuses
to attend lunch because he cannot "eat in peace." See Dkt. No. 30 at 2; Dkt. No. 34 at 2.
Defendant opposes plaintiff's motions arguing that plaintiff seeks relief against non parties
and his alleged harm is speculative. Dkt. Nos. 31, 33, and 35. Defendant also contends that
plaintiff's claims are unrelated to his underlying causes of action. See id.
The law related to preliminary injunctions was discussed in the June Order and will not
be restated herein. See Dkt. No. 21 at 2-4. In his most recent submissions, plaintiff seeks an
order restraining the "officers" from harassing him. See Dkt. No. 34 at 14. The injunction
sought is mandatory, thus the court will use the "clear and substantial" showing of a likelihood
of success standard.
To the extent that plaintiff seeks injunctive relief against Graham and "unidentified
officers", who are not defendants in this action, injunctive relief is available against
non-parties only under very limited circumstances, none of which are present here.2 See
Fed. R. Civ. P. 65(d)(2); Doctor's Associates, Inc. v. Reinert & Duree, P.C., 191 F.3d 297,
302-03 (2d Cir. 1999); U.S. v. Regan, 858 F.2d 115, 120 (2d Cir. 1988); see also In re
Rationis Enter., Inc. of Panama, 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
As discussed supra, Graham is not a defendant in this action. See Dkt. No. 21.
With respect to plaintiff's claims against Walters, plaintiff's current motion suffers from
the same infirmities as his prior motion. In the June Order, the Court denied plaintiff's request
for injunctive relief against Walters holding:
Plaintiff claims that he is the victim of past harassment and
retaliation and implies that he will be subjected to future
harassment and retaliation. Plaintiff cannot rely upon past,
illegal conduct to establish the likelihood of future harm. See
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).
Plaintiff's fear that he may suffer future harm is purely
speculative and, therefore, patently insufficient to show that he
is likely to suffer imminent irreparable harm if the requested
relief is not granted. See e.g., Slacks v. Gray, No.
9:07-CV-0501(NAM/GJD), 2008 WL 2522075, at *1 (N.D.N.Y.
June 25, 2008) (holding that allegations of future injury without
more do not establish a real threat of injury).
Dkt. No. 21 at 3.
Here, plaintiff claims that on October 3, 2016 and October 11, 2016, Walters
"circulated" information related to plaintiff's criminal case causing unidentified officers to
harass plaintiff. See Dkt. No. 34 at 1. As discussed in the June Order, plaintiff cannot rely
upon past harassment and the fear that he may suffer future harm to establish "irreparable
harm." Further, it is noted that the relief requested by plaintiff amounts to little more than an
"obey the law" injunction. "Obey the law" injunctions are vague, do not require the
defendants to do anything more than that already imposed by law, subject the defendants to
contempt rather than statutorily prescribed sanctions, and are not readily capable of
enforcement. As such, these injunctions are not favored. N.L.R.B. v. Express Pub. Co., 312
U.S. 426, 435-36 (1941); see also Rowe v. New York State Div. of Budget, No. 1:11-CV-1150
(LEK/DRH), 2012 WL 4092856, at *7 (N.D.N.Y. Sept. 17, 2012); New York v. Shinnecock
Indian Nation, 560 F. Supp. 2d 186, 189 (E.D.N.Y. 2008). According to the Second Circuit,
"[u]nder Rule 65(d), an injunction must be more specific than a simple command that the
defendant obey the law." S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240 (2d Cir.
2001) (quoting Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41, 51 (2d Cir. 1996)).
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 at 73, 77 (2d Cir. 1992).
For the foregoing reasons, plaintiff's second, third and fourth motions for preliminary
injunctive relief are denied in their entirety.3
WHEREFORE, it is hereby
ORDERED that plaintiff's motions for injunctive relief (Dkt. Nos. 30, 32 and 34) are
DENIED; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated: December 30, 2016
Albany, New York
Plaintiff is advised that concerns regarding his current conditions of confinement at Auburn C.F.
should be addressed through administrative channels at Auburn C.F., and the New York State Department of
Corrections and Community Supervision.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?