Trowell v. Upstate Correctional Facility et al

Filing 17

DECISION AND ORDER: ORDERED that plaintiff's motion to supplement the complaint (Dkt. No. 8 ) is GRANTED in part and DENIED in part. ORDERED that the Clerk of the Court is directed to create a new docket entry incorporating the original c omplaint (Dkt. No. 1) with the supplemental complaint (Dkt. No. 8) and entitle the entry, "Amended Complaint". ORDERED that the amended complaint shall be the operative pleading in this action. ORDERED that the Clerk of the Court is also directed to amend the docket to include Fleury as a defendant. ORDERED that the following claims are DISMISSED for failure to state a cause of action: (1) Eighth Amendment claims related to threats; (2) Eighth Amendment excessive force cla ims; (3) Eighth Amendment deliberate indifference claims related to plaintiff's medical needs; and (4) retaliation claims. ORDERED, that a response to the amended complaint be filed by defendant Santamore, or his counsel, as provided for i n the Federal Rules of Civil Procedure. ORDERED, that the Clerk shall issue a summons and forward it, along with copies of the amended complaint, to the United States Marshal for service upon Fleury. The Clerk shall forward a copy of the summons and amended complaint to the Office of the New York Attorney General, together with a copy of this Decision and Order. ORDERED, that a response to the amended complaint be filed by Fleury, or his counsel, as provided for in the Federal Rules of Civil Procedure. ORDERED that plaintiff's motion for the appointment of counsel (Dkt. Nos. 11 and 12 ) is DENIED with leave to renew. ORDERED that plaintiff's motion for injunctive relief (Dkt. Nos. 11 and 12 ) is DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 12/7/16. (Copy mailed to Pro Se party and therefore, pursuant to Fed.R.Civ.P. 6(d), an additional 3 (three) days for service may be allowed)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

RAMZIDDEN TROWELL, a/k/a Ramziddin
Trowell,
Plaintiff,
v.

9:16-CV-0639
(MAD/TWD)

UPSTATE CORRECTIONAL FACILITY, et. al.,
Defendants.

APPEARANCES:
RAMZIDDEN TROWELL
14-A-4530
Plaintiff, pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
HON. ERIC T. SCHNEIDERMAN
New York Attorney General
Attorney for Defendants
The Capitol
Albany, NY 12224

William A. Scott, ESQ.
Ass't Attorney General

MAE A. D'AGOSTINO
United States District Judge
DECISION AND ORDER
I.

INTRODUCTION
Pro se plaintiff Ramzidden Trowell, an inmate presently confined at Upstate

Correctional Facility ("Upstate C.F."), commenced this civil rights action asserting claims
arising out of his confinement in the custody of the New York State Department of

1

Corrections and Community Supervision ("DOCCS"). Dkt. No. 1 ("Compl."). The incidents
that formed the foundation for the complaint occurred in February 2016 and March 2016 at
Upstate C.F. See Compl., generally. By Decision and Order filed on July 6, 2016 (Dkt. No.
4) (the "July Order"), this Court granted plaintiff's IFP application and reviewed the sufficiency
of the complaint in accordance with 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A. On the
basis of that review, the Court dismissed the following claims with leave to amend: (1)
retaliation claims and Eighth Amendment claims arising from plaintiff's transfers to/from and
confinement at Downstate Correctional Facility; (2) excessive force claims related to an
incident in February 2016 against defendant Correctional Officer Garland ("Garland"); (3)
Eighth Amendment claims of deliberate indifference to serious medical needs at Upstate
C.F.; (4) Eighth Amendment claims related to plaintiff's conditions of confinement at Upstate
C.F.; (5) claims related to verbal threats or harassment; (6) excessive force claims related to
an altercation involving "two unknown officers" upon plaintiff's arrival at Upstate C.F.; and (7)
failure-to-protect claims related to alleged sexual abuse by another inmate. See Dkt. No. 4,
generally. The Court ordered defendant Sergeant Santamore ("Santamore") to respond to
plaintiff's Eighth Amendment excessive force claims arising from a February 2016 incident.1
See id. at 20. In light of his pro se status, plaintiff was afforded an opportunity to submit an
amended complaint. See Dkt. No. 4 at 20. On September 9, 2016, Santamore filed an
answer to the complaint. Dkt. No. 9.

1

The Court also held that plaintiff's Eighth Amendment claims against John Does 1 through 5 survived
sua sponte review. See Dkt. No. 4 at 10-11. Plaintiff was advised that the United States Marshals Service could
not effect service on an unidentified defendant. In the event that plaintiff wished to pursue any claims against
any John Doe, he was directed to take reasonable steps to ascertain the identity of that defendant. See id. at 20,
n.8 .

2

Presently before the Court is plaintiff's motion to supplement the complaint.2 Dkt. No.
8. Plaintiff also filed a motion for preliminary injunctive relief and a request for the
appointment of counsel. Dkt. Nos. 11, 12. Defendant takes no position on the motion for
counsel or motion to supplement the complaint but opposes plaintiff's request for preliminary
injunctive relief. Dkt. No. 13, 16.
II.

MOTION TO SUPPLEMENT COMPLAINT

A.

Legal Standard
The filing of amended and supplemental pleadings is governed by Rule 15 of the

Federal Rules of Civil Procedure. Fed. R. Civ. P. 15. Rule 15(a) states that leave to amend
shall be freely given "when justice so requires." See Foman v. Davis, 371 U.S. 178, 182
(1962); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993). The Supreme Court has
stated:
In the absence of any apparent or declared reason – such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment,
etc. – the leave sought should . . . be "freely given."
Foman, 371 U.S. at 182. An amendment or supplementation of a pleading is considered a
"futile" act when the proposed claim would not withstand a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. Dougherty v. Town of N. Hempstead Bd. of
Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). The decision to grant or deny a motion to
amend or supplement is committed to the sound discretion of the trial court, and the court’s

2
Upon review of the submission, the Court considered plaintiff's motion as seeking leave to supplement
the original complaint with allegations regarding incidents that occurred in August 2016.

3

decision is not subject to review on appeal except for abuse of discretion. See Fielding v.
Tollaksen, 510 F.3d 175, 179 (2d Cir. 2007).
In the case of proposed amendments where new defendants are to be added, the
Court must also look to Rules 20 and 21. Ward v. LeClaire, No. 07-CV-0026 (LEK/RFT),
2008 WL 182206, at *3 (N.D.N.Y. Sept. 26, 2007) (citing United States v. Chilstead Bldg. Co.,
No. 96-CV-0641 (N.D.N.Y. Nov. 7, 1997) (McAvoy, C.J.)). Rule 21 states that a party may be
added to an action "at any time [and] on just terms." Fed. R. Civ. P. 21. Rule 21 is "intended
to permit the bringing in of a person, who through inadvertence, mistake or for some other
reason, had not been made a party and whose presence as a party is later found necessary
or desirable." Goston v. Potter, No. 9:08-CV-0478 (FJS/ATB), 2010 WL 4774238, at *5
(N.D.N.Y. Sept. 21, 2010) (quoting United States v. Commercial Bank of N. Am., 31 F.R.D.
133, 135 (S.D.N.Y. 1962) (internal quotations marks omitted)).3 Rule 20(a)(2) is liberally
construed "so as to promote judicial economy and to allow related claims to be tried within a
single proceeding." Equal Emp't Opportunity Comm'n v. Nichols Gas & Oil, Inc., 518 F. Supp.
2d 505, 508-09 (W.D.N.Y. 2007) (citing, inter alia, Barr Rubber Prods. Co. v. Sun Rubber
Co., 425 F.2d 1114, 1127 (2d Cir. 1970)).
A motion to amend may properly be denied where the requested relief would be futile.
Foman, supra, 371 U.S. at 182. An amendment or supplementation of a pleading is
considered a "futile" act when the proposed claim would not withstand a motion to dismiss

3

"Rule 21 cannot be read alone but must be read in the light of Rules 18, 19 and 20[.]" Commercial
Bank of N. Am,, 31 F.R.D. at 135. In this respect, the federal rules state, in part, that "[p]ersons . . . may be
joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and (B) any question of law or fact common to all defendants will arise in the action." Fed. R. Civ.
P. 20(a)(2).

4

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). Thus, "[w]here it appears
that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion
to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)
(citations omitted).
B.

Plaintiff's Motion
In support of his motion, plaintiff submitted a proposed pleading which names

new defendants and sets forth new claims arising from incidents that occurred at Upstate
C.F.4 Dkt. No. 8 at 1-2 ("Supp. Compl."). As alleged in this pleading, plaintiff was harassed,
physically and sexually assaulted, and injured by officers in August 2016. See id. at 2-3.
Defendant takes no position on plaintiff's motion but notes that plaintiff's supplement does not
appear to have any relation to the facts alleged in his underlying complaint. See Dkt. No. 16
at 1.
C.

Discussion
The Court has thoroughly reviewed the proposed pleading and finds that the claims

asserted are sufficiently related to the original claims, defendants, and complaint. See Keith
v. Volpe, 858 F.2d 267, 474 (9th Cir. 1988) (holding that "[w]hile some relationship must exist
between the newly alleged matters and the subject of the original action, they need not all
arise out of the same transaction."). Defendant has not opposed plaintiff's request to
supplement and it does not appear to this Court that plaintiff has delayed unduly in bringing
his motion. The requested supplements do not significantly change the theory of the case,

4
The proposed supplement includes new claims against Garland, an original defendant. Pursuant to the
July Order, Garland was dismissed as a defendant. See Dkt. No. 4 at 20.

5

and the Court is not persuaded that resolution of this matter will be significantly delayed by
the filing of the supplemental pleading. With that in mind, the Court will review plaintiff's
proposed supplemental complaint thoroughly, with due regard for his status as a pro se
litigant.5
III.

ANALYSIS OF SUPPLEMENTAL COMPLAINT
The supplemental complaint includes new factual allegations and claims against new

defendants: Sergeant W. Vesneske ("Vesneske"), Manson, and C.O. Succee (Succee").
See Supp. Compl., generally. Moreover, while not identified as a defendant in the caption or
in the list of parties, the amended complaint contains factual allegations and claims against
Officer B. Fleury ("Fleury"). See id.
On August 5, 2016, plaintiff was called to his cell door in the Special Housing Unit
("SHU") to receive his HIV medication. Supp. Compl. at 2. When the nurse attempted to
give plaintiff his medication, Garland intervened and began to harass plaintiff. Id. Garland
refused to give plaintiff his medication. Id. Plaintiff spoke with mental health staff and a
sergeant was summoned. Id. at 3. When Vesneske arrived, plaintiff refused to discuss the
issue with him. Supp. Compl. at 3. Vesneske and Succee ordered plaintiff's bunk mate to
physically assault plaintiff but the inmate did not comply with the directive. Id.
Plaintiff refused an order by officers to "cuff up" for an escort to the mental health unit.6
Supp. Compl. at 3. Plaintiff was "gassed" and physically beaten inside his cell.7 Id. Plaintiff

5

The legal standard governing the dismissal of a pleading for failure to state a claim was discussed at
length in the July Order and it will not be restated in this Decision and Order. See Dkt. No. 4 at 2-4.
6

The supplement does not contain facts regarding which officers directed plaintiff to "cuff up."

7

Plaintiff does not identify the individuals involved in this incident.

6

was handcuffed, shackled, stripped to his underwear, and dragged to the infirmary, where the
assault continued. Supp. Compl. at 3. When plaintiff was about to "pass out from the pain,"
Fleury put a gloved finger in his anus and called plaintiff "a bitch." Id.
The proposed supplemental complaint asserts the following: (1) claims that Garland,
Vesneske, and Succee threatened and harassed plaintiff in violation of his Eighth
Amendment rights; (2) Eighth Amendment excessive force claims against unidentified
defendants; (3) Eighth Amendment sexual assault claim against Fleury; and (4) Eighth
Amendment claim against the "Medical Department" for deliberate indifference to plaintiff's
serious medical needs. See Supp. Compl, generally.
IV.

ANALYSIS

A.

Eighth Amendment Claims
The caselaw surrounding Eighth Amendment claims of excessive force, deliberate

indifference to medical needs, and threats was discussed at length in the July Order and will
not be restated in this Decision and Order. See Dkt. No. 4 at 9-17.
1.

Harassment

Construing the proposed supplemental complaint liberally, plaintiff claims that he was
harassed by Garland, Vesneske, and Succee. The allegations in the proposed pleading
suffer from the same infirmities as the original harassment allegations. Accordingly, for the
reasons set forth in the July Order, plaintiff's Eighth Amendment harassment claims are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(b) and 28 U.S.C. § 1915A(b).
2.

Excessive Force

The law, as it pertains to personal involvement in 1983 actions, was discussed in the

7

July Order. See Dkt. No. 4 at 8. In the supplemental complaint, plaintiff summarily states
that he was, "gassed and physically beaten while inside the cell." See Supp. Compl. at 3.
However, plaintiff did not identify any individual(s) or officer(s) personally involved in the
alleged assault. For the reasons set forth in the July Order, plaintiff's claims related to the
alleged assault in his cell and at the infirmary are dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be
granted.
3.

Sexual Assault

"Because sexual abuse of a prisoner by a corrections officer may constitute serious
harm inflicted by an officer with a sufficiently culpable state of mind, allegations of such abuse
are cognizable as Eighth Amendment claims." Boddie v. Schnieder, 105 F.3d 857, 861 (2d
Cir. 1997). "A corrections officer's intentional contact with an inmate's genitalia or other
intimate area, which serves no penological purpose and is undertaken with the intent to
gratify the officer's sexual desire or humiliate the inmate, violates the Eighth Amendment."
Crawford v. Cuomo, 796 F.3d 252, 256-57 (2d Cir. 2015). "[A] single incident of sexual
abuse, if sufficiently severe or serious, may violate an inmate's Eighth Amendment rights no
less than repetitive abusive conduct." Id.
Here, plaintiff claims that Fleury "put a gloved finger in [his] anus and called [him] a
bitch." See Supp. Compl. at 3. At this juncture, plaintiff has sufficiently plead an Eighth
Amendment claim against Fleury based upon this incident. In so ruling, the Court expresses
no opinion as to whether this claim can withstand a properly filed motion to dismiss or for
summary judgment.

8

4.

Deliberate Indifference to Medical Needs

In the supplemental complaint, plaintiff claims that he sustained injuries to his back
and arm as a result of the August 2016 assault. See Supp. Compl. at 5. Even assuming
plaintiff sufficiently plead that he suffered from a serious medical need, plaintiff must allege
facts to establish the subjective element of the Eighth Amendment analysis.
In the July Order, the Court dismissed plaintiff's Eighth Amendment claims holding:
Plaintiff does not name or otherwise identify any individual as
personally involved in his deprivation of medical treatment. As
presently plead, plaintiff's allegations do not plausibly "allow[]
the court to draw the reasonable inference that [any] defendant
is liable for the misconduct alleged."
Dkt. No. 4 at 13-14 (internal citations omitted).
Plaintiff's supplemental complaint suffers from similar deficiencies. Plaintiff claims that
he suffered a "lack of medical attention" from the "medical department," see Supp. Compl. at
5, however the complaint does not contain any facts related to who plaintiff complained to,
the substance of his complaints, or the response, if any, to his complaints. See Kee v. Hasty,
No. 01 Civ. 2123, 2004 WL 807071, at *29 (S.D.N.Y. April 14, 2004) (holding that the
plaintiff's Eighth Amendment claims were overly conclusory because the inmate failed to
specify the dates on which he was denied proper treatment, the nature of his needs on those
dates, and the nature of the treatment that was purportedly denied by the defendants).
To the extent that plaintiff attempts to assert a cause of action against the "medical
department," that claim is subject to dismissal because only "persons" may act under the
color of state law. Here, the use of the term, "medical department" as an alleged defendant,
without naming specific individuals, is not adequate to state a claim against a "person" as
required in § 1983 actions. See Martin v. UConn Health Care, 99-CV-2158, 2000 WL
9

303262, at *1-2 (D.Conn. Feb. 9, 2000); Ferguson v. Morgan, No. 90 Civ. 6318, 1991 WL
115759, at *1 (S.D.N.Y. June 20, 1991) (holding that Otisville Correctional Facility medical
staff not a person under § 1983).
For these reasons and the reasons set forth in the July Order, plaintiff's Eighth
Amendment medical indifference claims are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)
and 28 U.S.C. § 1915A(b) for failure to state a claim.
B.

Claims Against Manson
Plaintiff names Manson as a defendant in the caption, however, the complaint lacks

any facts related to Manson. Indeed, Manson is not referenced anywhere in the body of the
complaint. "Where a complaint alleges no specific act or conduct on the part of the defendant
and the complaint is silent as to the defendant except for his name appearing in the caption,
the complaint is properly dismissed, even under the liberal construction to be given pro se
complaints." Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir.1974); see also Cipriani v.
Buffardi, No. 06–CV–0889 (GTS/DRH), 2007 WL 607341, *1 (N.D.N.Y. Feb.20, 2007)
("Dismissal is appropriate where a defendant is listed in the caption, but the body of the
complaint fails to indicate what the defendant did to the plaintiff") (citation omitted); see also
Casino v. Rohl, No. 14-CV-2175, 2014 WL 5425501, at *6 (E.D.N.Y. Oct. 23, 2014) (holding
that since the defendant is nowhere mentioned or referenced in the body of the amended
complaint, the plaintiff did not adequately plead personal involvement in any of the
constitutional deprivations). In the absence of factual allegations sufficient to plausibly
suggest that Manson was personally involved in conduct that violated plaintiff's constitutional
rights, the complaint fails to state a cognizable claim against Manson.
C.

Remaining Requests for Relief Dismissed
10

In the section of the complaint entitled "Relief," plaintiff indicates that he would like to
"sue" for retaliation. See Supp. Compl. at 5. However, the supplemental complaint, as
presently written contains no facts suggesting that plaintiff was the victim of any retaliatory
action.
Plaintiff also seeks to "press charges" against all defendants. There exists no
constitutionally protected right to file criminal charges against another." Mercer v. Benson,
No. 08-CV-0537 (DNH/DRH), 2009 WL 3111684, at *3 , n. 7 (N.D.N.Y. Sept. 23, 2009) (citing
Langworthy v. Dean, 37 F.Supp.2d 417, 422 (D. Md. Feb. 8, 999) ("[A] right to compel the
prosecution of criminal activity does not exist.")); see also Porter v. Goord, No. 04-CV-0485,
2004 WL 2271383, at *3 (W.D.N.Y. Oct. 5, 2004) ("a private citizen is not constitutionally
entitled to a criminal investigation or the pursuit of a criminal prosecution") (citing Linda R.S.
v. Richard D., 410 U.S. 614 (1973)).
Based upon the foregoing, the Court finds that the Eighth Amendment claim against
defendant Fleury set forth in the supplemental complaint is cognizable in this Section 1983
action and therefore grants this aspect of plaintiff's motion to supplement. Plaintiff's motion is
denied in all other respects as futile.
V.

Motion for Appointment of Counsel
Courts cannot utilize a bright-line test in determining whether counsel should be

appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d
Cir. 1997). Instead, a number of factors must be carefully considered by the court in ruling
upon such a motion:
[The Court] should first determine whether the indigent's position
seems likely to be of substance. If the claim meets this threshold
requirement, the court should then consider the indigent's ability to
11

investigate the crucial facts, whether conflicting evidence implicating
the need for cross examination will be the major proof presented to
the fact finder, the indigent's ability to present the case, the
complexity of the legal issues and any special reason in that case
why appointment of counsel would be more likely to lead to a just
determination.
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v.
Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)) (internal quotation marks omitted). This is not
to say that all, or indeed any, of these factors are controlling in a particular case. Rather,
each case must be decided on its own facts. Velasquez v. O'Keefe, 899 F.Supp. 972, 974
(N.D.N.Y. 1995) (citing Hodge, 802 F.2d at 621).
At this preliminary stage, the Court is unable to determine whether plaintiff meets the
threshold requirement that at least some aspects of his claim are "likely to be of substance."
Hodge, 802 F.2d at 61. Plaintiff has not submitted any evidence supporting his claims and
plaintiff's request for counsel is not accompanied by documentation that substantiates his
efforts to obtain counsel from the public and private sector. See Terminate Control Corp. v.
Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994); Cooper v. Sargenti Co., Inc., 877 F.2d 170, 172,
174 (2d Cir. 1989). Even if the Court were to assume, for purposes of this motion, that
plaintiff's position seems likely to be of substance, the relevant factors weigh decidedly
against granting plaintiff's motion at this time. For example: (1) the case does not present
novel or complex issues; and (2) it appears to the Court as though, to date, plaintiff has been
able to effectively litigate this action. The Court is unaware of any special reasons why
appointment of counsel at this time would be more likely to lead to a just determination of this
litigation. See Terminate Control Corp., 28 F.3d at 1341; Hodge, 802 F.2d at 61. Thus,
plaintiff's motion for the appointment of counsel is denied without prejudice.

12

For these reasons, plaintiff's motion for the appointment of counsel is denied without
prejudice. After defendants have responded to the allegations in the amended complaint,
and the parties have undertaken discovery, plaintiff may file a second motion for appointment
of counsel, at which time the Court may be better able to determine whether such
appointment is warranted in this case. It is the plaintiff's responsibility to retain an attorney or
press forward with this lawsuit pro se. See 28 U.S.C. § 1654; see also Phillips v. Goord, No.
08-CV-0957, 2009 WL 909593, at *1, n.3 (W.D.N.Y. April 1, 2009).
VI.

Motion for a Preliminary Injunction
Plaintiff moves for preliminary injunctive relief to prevent harassment by various

officers. See Dkt. Nos. 11, 12. Plaintiff also seeks an order placing him in protective
custody. See id.
Preliminary injunctive relief "is an extraordinary and drastic remedy, one that should
not be granted unless the movant, by a clear showing, carries the burden of persuasion."
Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir. 2005) (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). The standard a court must utilize in
considering whether to grant a request for injunctive relief is well-settled in this Circuit.
Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35,
38 (2d Cir. 2010). A plaintiff must demonstrate irreparable harm and either a substantial
likelihood of success on the merits of the claim, or sufficiently serious questions going to the
merits and a balance of hardships tipping decidedly in his favor. Id. at 35; Cacchillo v.
Insmed, Inc., 638 F.3d 401, 405-06 (2d Cir. 2011). However, when the moving party seeks a
"mandatory injunction that alters the status quo by commanding a positive act," the burden is
even higher. Id.; see also Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996). Thus, a
13

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." Citigroup Global Mkts., 598 F.3d at 35 n.4 (internal
quotation marks omitted). The district court has wide discretion in determining whether to
grant a preliminary injunction. Moore, 409 F.3d at 511.
"To 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. Levesque v. Clinton County, No. 10-CV-787 (DNH/DEP), 2012 WL 6948779, at
*11 (N.D.N.Y. Dec. 28, 2012) (citing inter alia Omega World Travel, Inc. v. Trans World
Airlines, 111 F.3d 14, 16 (4th Cir. 1997)) (a preliminary injunction may not be issued to
prevent an injury or harm which was not caused by the wrong claimed in the underlying
action); see also Allen v. Brown, No. 96-CV-1599 (RSP/GJD), 1998 WL 214418, *4 (N.D.N.Y.
Apr. 28, 1998) (denying request for injunctive relief where allegations in application for such
relief were unrelated to claims asserted in the complaint and, thus, plaintiff "failed to establish
either a likelihood of succeeding on the merits of his underlying claim, or sufficiently serious
questions going to the merits of such claim and a balance of hardships tipping decidedly
toward" the plaintiff).
Here, as plaintiff seeks a mandatory injunction, he must meet the higher standard and
establish a clear or substantial likelihood of success or show that extreme or very serious
damage would result in the absence of the requested relief. See Tom Doherty Assocs., Inc.
v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995); see also Nicholson v. Fischer, No. 13CV-6072, 2014 WL 666913, at *2 (W.D.N.Y. Nov. 10, 2014) (reasoning that plaintiff must
meet the higher standard as his request to move to protective custody seeks to alter the
14

status quo). To the extent that plaintiff seeks injunctive relief against individuals who are not
defendants herein, that request is denied. Injunctive relief is available against non-parties
only under very limited circumstances, none of which are present here. 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); United States v. Regan, 858 F.2d 115, 120 (2d Cir. 1988); see also In re Rationis
Enterprises, 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
jurisdiction.").
Construing plaintiff's motions in the light most favorable to him as a pro se plaintiff, the
Court finds that 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 Hancock v. Essential Res., Inc., 792
F. Supp. 924, 928 (S.D.N.Y. 1992) ("Preliminary injunctive relief cannot rest on mere
hypotheticals").
Plaintiff's fear that he may be assaulted in the future 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) (finding that allegations of future injury,
without more, do not establish a real threat of injury) (citations omitted); see also Agostini v.
Backus, No. 15-CV-6188, 2015 WL 1579324, at *3 (W.D.N.Y. Apr. 9, 2015) (reasoning that
the plaintiff's concern about threats and future retaliation, even if sincere, is speculative
insufficient to establish irreparable harm). In his motion, plaintiff sets forth factual allegations
15

related to the August 5, 2016 incidents, the same incidents that formed the foundation for the
supplemental complaint. See Dkt. No. 12 at 1. Plaintiff cannot base his request for relief
upon past conduct and the anticipation of future assaults. See Garcia v. Arevalo, No. 93 CIV.
8147, 1994 WL 383238, at *2 (S.D.N.Y. June 27, 1994) ("Such a bare allegation of future
injury does not demonstrate a real threat of actual injury. It is well settled that an allegation of
the mere possibility of irreparable harm is insufficient to justify the drastic remedy of
preliminary injunction.") (citing Borey v. National Union Fire Ins. Co. of Pittsburgh,
Pennsylvania, 934 F.2d 30 (2d Cir.1991)).
To the extent that plaintiff claims he is being denied medical attention, plaintiff states
only that he has complained to "the medical department" and "mental health" but the "people"
at "this facility are not trying to cooperate." See Dkt. No. 12 at 1-2. As discussed supra, in
the proposed supplemental complaint, plaintiff failed to sufficiently allege facts to establish a
cause of action for a violation of his Eighth Amendment rights related to his medical
treatment. More importantly, the named defendants have no connection to plaintiff's medical
treatment. Thus, plaintiff cannot establish a likelihood of success on the merits of his
underlying claim and plaintiff's request for relief is denied. See Mitchell v. New York State
Dep't of Corr. Srvs., No. 06-CV-6278, 2011 WL 5326054, at *3 (W.D.N.Y. Nov. 3, 2011) (the
facts underlying the request for injunctive relief are essentially unrelated to the underlying
facts of the claims in this action, except for the fact that they arise in the prison context).
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
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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 Division 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)).
Accordingly, plaintiff's motion for preliminary injunctive relief (Dkt. Nos. 11 and 12) is
denied.8
VII.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's motion to supplement the complaint is GRANTED in part

and DENIED in part; and it is further
ORDERED that the Clerk of the Court is directed to create a new docket entry
incorporating the original complaint (Dkt. No. 1) with the supplemental complaint (Dkt. No. 8)
and entitle the entry, "Amended Complaint;" and it is further
ORDERED that the amended complaint shall be the operative pleading in this action;
and it is further
ORDERED that the Clerk of the Court is also directed to amend the docket to include

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Plaintiff is advised that concerns regarding his current conditions of confinement at Upstate C.F.
should be addressed through administrative channels at Upstate C.F. and the New York State Department of
Corrections and Community Supervision and, if necessary, by means of a properly filed action in the appropriate
District Court.

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Fleury as a defendant; and it is further
ORDERED that the following claims are DISMISSED for failure to state a cause of
action: (1) Eighth Amendment claims related to threats; (2) Eighth Amendment excessive
force claims; (3) Eighth Amendment deliberate indifference claims related to plaintiff's
medical needs; and (4) retaliation claims; and it is further
ORDERED, that a response to the amended complaint be filed by defendant
Santamore, or his counsel, as provided for in the Federal Rules of Civil Procedure; and it is
further
ORDERED, that the Clerk shall issue a summons and forward it, along with copies of
the amended complaint, to the United States Marshal for service upon Fleury. The Clerk
shall forward a copy of the summons and amended complaint to the Office of the New York
Attorney General, together with a copy of this Decision and Order; and it is further
ORDERED, that a response to the amended complaint be filed by Fleury, or his
counsel, as provided for in the Federal Rules of Civil Procedure; and it is further
ORDERED, that all pleadings, motions and other documents relating to this action
must bear the case number assigned to this action and be filed with the Clerk of the United
States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S.
Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or
the Clerk must be accompanied by a certificate showing that a true and correct copy of
same was served on all opposing parties or their counsel. Any document received by
the Clerk or the Court which does not include a proper certificate of service will be
stricken from the docket. Plaintiff must comply with any requests by the Clerk’s Office for

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any documents that are necessary to maintain this action. All parties must comply with Local
Rule 7.1 of the Northern District of New York in filing motions. Plaintiff is also required to
promptly notify the Clerk’s Office and all parties or their counsel, in writing, of any
change in his address; their failure to do so will result in the dismissal of his action;
and it is further
ORDERED that plaintiff's motion for the appointment of counsel (Dkt. Nos. 11 and 12)
is DENIED with leave to renew; and it is further
ORDERED that plaintiff's motion for injunctive relief (Dkt. Nos. 11 and 12) is DENIED;
and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 7, 2016
Albany, New York

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