McMillian v. Graham et al
Filing
86
DECISION AND ORDER: ORDERED that Plaintiff's motions for injunctive relief (Dkt. Nos. 71 , 73 , 74 , 76 , 77 , 78 , 80 , 81 , 83 , 85 ) are DENIED. ORDERED that Plaintiff is barred from filing any further motions for preliminary injunctive relief in this matter without first obtaining leave of the Court. Signed by U.S. District Judge Mae A. D'Agostino on 1/18/18. (served on plaintiff by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HERMAN CARLEE MCMILLIAN,
Plaintiff,
v.
9:16-CV-0277
(MAD/DEP)
DANIEL WALTERS,
Defendant.
APPEARANCES:
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 Attorney General
Attorney for Defendant
The Capitol
Albany, NY 12224
MICHAEL G. McCARTIN, ESQ.
Ass't Attorney General
MAE A. D'AGOSTINO
United States District Judge
DECISION and ORDER
I.
INTRODUCTION
Pro se Plaintiff Herman Carlee McMillian commenced this action pursuant to 42 U.S.C.
§ 1983 ("Section 1983"), 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. Presently before the Court are Plaintiff's motions for injunctive relief. Dkt.
Nos. 71, 73, 74, 76, 77, 78, 80, 81, 83, 85.
II.
BACKGROUND
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.
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 2016 Order"), the Court denied Plaintiff's motion. Dkt. No.
21.
In September, October, and November 2016, Plaintiff filed three motions for
preliminary injunctive relief. Dkt. Nos. 30, 32, and 34. Plaintiff claimed 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 alleged that on October 3, 2016 and October 11, 2016, Walters circulated
material about Plaintiff's criminal case resulting in additional harassment by "guards." See
Dkt. No. 34 at 1. By Decision and Order filed on December 30, 2016 (the "December 2016
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Order"), the Court denied plaintiff's motions. Dkt. No. 36.
In April 2017, Plaintiff filed a fifth motion for injunctive relief claiming that Walters and
Officer Michael Ramsey ("Ramsey") confiscated his legal work from his cell in 2014, 2015,
and 2016. Dkt. No. 50 at 1, 3; Dkt. No. 51 at 1. Plaintiff sought an order directing Walters to
return his legal material. Dkt. No. 51 at 2. Plaintiff also reiterated his claims related to verbal
harassment by Walters and Ramsey and renewed his request for an order restraining such
conduct. Dkt. No. 50 at 12; Dkt. No. 51 at 6. By Decision and Order filed on June 22, 2017
(the "June 2017 Order"), the Court denied Plaintiff's motion. Dkt. No. 58.
From June 2017 through August 22, 2017, Plaintiff filed six motions for injunctive relief.
Dkt. Nos. 59, 61, 63, 65, 67, and 68. Plaintiff sought an order compelling Walters to return
his legal materials, surgical records, and legal dictionary. See Dkt. Nos. 59 at 2-4, 6, 8; 61 at
4-5; 63 at 4-5; 65; 67 and 68. Plaintiff also renewed his request for an order restraining
Ramsay from attempting to incite other inmates to verbally abuse and threaten Plaintiff. See
Dkt. Nos. 59 at 6, 7, 10, 11; 63 at 6; 65 at 2; and 67 at 12. By Decision and Order filed on
September 8, 2017 (the "September 2017 Order"), the Court denied Plaintiff's motions. Dkt.
No. 72. In the September 2017 Order, the Court also addressed the possibility of a future bar
order. The Court cautioned Plaintiff as follows:
Based upon a review of the previous filings in this action, the
Court finds that Plaintiff's persistence in filing frivolous and
procedurally deficient motions for injunctive relief may result in
the imposition of sanctions, including limitations on his ability to
file without prior permission of the Court.
Dkt. No. 72 at 9.
From August 2017 until January 2018, Plaintiff filed additional ten motions for
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injunctive relief. Dkt. Nos. 59, 61, 63, 65, 67, and 68.
III.
DISCUSSION
The law related to preliminary injunctions was discussed in the June 2016 Order and
will not be restated herein. See Dkt. No. 21 at 2-4. Plaintiff's most recent submissions
contain the same indecipherable claims related to his innocence, a request for a competency
hearing/release from confinement, Fifth Amendment privileges at trial, and constitutional
rights related to self-incrimination; all of which Plaintiff included in his prior motions. See Dkt.
No. 71 at 3-5, 8, 12-14; Dkt. No. 73 at 1, 8, Dkt. No. 74 at 1; Dkt. No. 76 at 1, 4, 11-12; Dkt.
No. 77 at 1, 8-11; Dkt. No. 78 at 1, 3; Dkt. No. 80 at 1, 7-13; Dkt. No. 81 at 1, 7-14; Dkt. No.
83 at 1,5, 12-15; Dkt. No. 85 at 1, 6-14. The Court has used its best efforts to interpret what
relief, if any, Plaintiff is seeking in his most recent submissions. Plaintiff attempts to renew
his request for an Order compelling Walters to return his legal material and surgical records.
See Dkt. No. 71 at 1-2, 6-7; Dkt. No. 73 at 1-2; Dkt. No. 74 at 1-2; Dkt. No. 77 at 2, 6; Dkt.
No. 80 at 1-2; Plaintiff also repeats his prior request for an Order restraining Ramsey from
harassing him. See Dkt. No. 77 at 5.
Additionally, Plaintiff claims that unidentified "correctional department employees" and
"the department of corrections" are refusing to provide medical attention, wash his clothes, or
supply commissary sheets. Plaintiff contends that unidentified individuals incite other inmates
to attack him, and refused, on one occasion, to provide an evening meal in retaliation for filing
injunctions. Dkt. No. 73 at 4, 13; Dkt. No. 76 at 7-8, 16; Dkt. No. 80 at 14-15; Dkt. No. 81 at
6. Plaintiff also alleges that in December 2017, an unidentified correction guard nicknamed
"tight shirt" referred to Plaintiff as a "child molester" over the intercom. Dkt. No. 78 at 2,4;
Dkt. No. 81 at 6. While it is unclear exactly what Plaintiff seeks, construing his submissions
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liberally, Plaintiff moves for an Order precluding the aforementioned acts and behavior.
Plaintiff's current motions suffer from the same infirmities as his prior motions.
Accordingly, for the reasons set forth in the June 2016 Order, December Order, and June
2017 Order, and September 2017 Order, Plaintiff's motions for injunctive relief are denied.
IV.
Bar Order
As discussed supra, Plaintiff was previously advised that continued frivolous filings
may result in the imposition of sanctions, including limitations on his ability to file without prior
permission of the Court. Dkt. No. 72. Plaintiff began filing motions for injunctive relief in
March 2016. Dkt. No. 9. From September 2016 until April 2017, Plaintiff filed four additional
motions for injunctive relief. Dkt. Nos. 30, 32, 34, and 50. From June 2017 through August
2017, Plaintiff filed six additional motions for injunctive relief. Dkt. Nos. 59, 61, 63, 65, 67, 68.
In an effort to manage the docket, on August 23, 2017, the Court issued the following Order:
Plaintiff's motions for injunctive relief will be addressed in due
course before Judge D'Agostino. Because Plaintiff has made
repeated motions seeking the same relief from Judge
D'Agostino (see Dkt. Nos. 59, 61, 63, 65, 67, 68), PLAINTIFF
IS BARRED FROM MAKING ANY FURTHER SUBMISSIONS
IN SUPPORT OF MOTIONS FOR INJUNCTIVE RELIEF OR
UNTIL HIS PRIOR MOTIONS ARE DECIDED BY JUDGE
D'AGOSTINO.
Dkt. No. 69. Despite this Order, Plaintiff filed an additional motion for injunctive relief on
August 31, 2017. Dkt. No. 71.
On November 2, 2017, after the Court had received the eighteenth motion for
injunctive relief, the Order was re-issued:
Plaintiff's motions for injunctive relief will be addressed in due
course before Judge D'Agostino. Because Plaintiff has made
repeated motions for injunctive relief (see Dkt. Nos. 71, 73, 74,
76, 77, 78), PLAINTIFF MAY NOT FILE ANY FURTHER
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SUBMISSIONS IN SUPPORT OF MOTIONS FOR
INJUNCTIVE RELIEF OR UNTIL HIS PRIOR MOTIONS ARE
DECIDED.
Dkt. No. 78. Despite this Order, Plaintiff filed four additional motions for injunctive relief.
See Dkt. Nos. 80, 81, 83, 85.
In total, Plaintiff has filed twenty-two separate motions for injunctive relief that have
been denied. The motions are duplicative, frivolous, and vexatious. While the Court is aware
that Plaintiff is proceeding pro se, he has extensive litigation experience. Plaintiff's motions
have presented an extreme burden on Defendant and the Court. In light of Plaintiff's
repeated refusal to comply with the Court's prior sanctions, short of an injunction, the Court
and Defendants will likely be presented with continued motions.
For the reasons set forth herein and in the September 2017 Order, pursuant to 28
U.S.C. § 1651(a) and the Court's inherent authority to control and manage its own docket so
as to prevent abuse in its proceedings, Plaintiff is hereby prohibited from filing any further
motions for preliminary injunctive relief in this matter without prior leave of the Court.
V.
CONCLUSION
WHEREFORE, it is hereby
ORDERED that Plaintiff's motions for injunctive relief (Dkt. Nos. 71, 73, 74, 76, 77, 78,
80, 81, 83, 85) are DENIED; and it is further
ORDERED that Plaintiff is barred from filing any further motions for preliminary
injunctive relief in this matter without first obtaining leave of the Court; and it is further
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ORDERED that the Clerk serve a copy of this Decision and Order on Plaintiff.
IT IS SO ORDERED.
Dated: January 18, 2018
Albany, New York
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