Munger v. Annucci et al

Filing 57

DECISION AND ORDER: ORDERED that plaintiff's motion seeking an order appointing his brother as a "secondary claimant" in this action and directing his transfer to Washington C.F. (Dkt. No. 23 ) is DENIED. ORDERED that plaintiff' ;s motion seeking preliminary injunctive relief regarding his medical care at Ulster C.F. (Dkt. No. 24 ) is DENIED. ORDERED that plaintiff's motions seeking appointment of pro bono counsel (Dkt. Nos. 36 , 40 ) are DENIED without prejudice. Signed by Judge Brenda K. Sannes on 5/16/17. (Attachments: # 1 Copies of Unpublished Decisions Cited) (served on plaintiff by regular mail)(alh, )

Rashid v. McGraw, Not Reported in F.Supp.2d (2002)
2002 WL 31427349

2002 WL 31427349
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Zayd RASHID, Plaintiff,
v.
Kevin MCGRAW, DDS, Sullivan
Correctional Facility, et al., Defendants.
No. 01CIV10996DABHBP.
|
Oct. 29, 2002.
Prisoner who brought § 1983 action against city
correctional facility and others, alleging deliberate
indifference to serious dental problems, moved for pro
bono counsel. The District Court, Pitman, J., held that
claim was sufficiently meritorious to warrant submission
of case to panel of pro bono attorneys for possible
representation of prisoner by pro bono counsel.
Motion granted.

West Headnotes (1)
[1]

Civil Rights
Criminal Law Enforcement; Prisons
Prisoner's § 1983 claim against city
correctional facility and others for alleged
deliberate indifference to serious dental
problems was sufficiently meritorious to
warrant submission of case to panel of pro
bono attorneys for possible representation of
prisoner by pro bono counsel, where claim
alleged that prisoner would likely lose all of
his lower teeth as result of defendants actions,
and prisoner previously recovered judgment
against city for loss of his upper teeth. 42
U.S.C.A. § 1983.
2 Cases that cite this headnote

PITMAN, Magistrate J.
*1 By a motion dated May 20, 2002, plaintiff moves for
pro bono counsel. 1 For the reasons set forth below, the
motion is granted.
1

In a civil case, such as this, the Court cannot
actually “appoint” counsel for a litigant. Rather, in
appropriate cases, the Court submits the case to a
panel of volunteer attorneys. The members of the
panel consider the case and each decides whether he
or she will volunteer to represent the plaintiff. If no
panel member agrees to represent the plaintiff, there is
nothing more the Court can do. See generally Mallard
v. United States District Court, 490 U.S. 296, 109 S.Ct.
1814, 104 L.Ed.2d 318 (1989). Thus, even in cases
where the Court finds it is appropriate to request
volunteer counsel, there is no guarantee that counsel
will actually volunteer to represent plaintiff.

The factors to be considered in ruling on a motion
for pro bono counsel are well settled and include “the
merits of plaintiff's case, the plaintiff's ability to pay for
private counsel, [plaintiff's] efforts to obtain a lawyer,
the availability of counsel, and the plaintiff's ability to
gather the facts and deal with the issues if unassisted by
counsel.” Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d
Cir.1986). Of these, “[t]he factor which command[s] the
most attention [is] the merits.” Id. Accord Odom v. Sielaff,
90 Civ. 7659(DAB), 1996 WL 208203 (S.D.N.Y. April 26,
1996). As noted fifteen years ago by the Court of Appeals:
Courts do not perform a useful
service if they appoint a volunteer
lawyer to a case which a private
lawyer would not take if it were
brought to his or her attention.
Nor do courts perform a socially
justified function when they request
the services of a volunteer lawyer for
a meritless case that no lawyer would
take were the plaintiff not indigent.
Cooper v. A. Sargenti Co., supra, 877 F.2d at 174.
See also Hendricks v. Coughlin, 114 F.3d 390, 392 (2d
Cir.1997) (“ ‘In deciding whether to appoint counsel ... the
district judge should first determine whether the indigent's
position seems likely to be of substance.” ’).

MEMORANDUM OPINION AND ORDER

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1

Rashid v. McGraw, Not Reported in F.Supp.2d (2002)
2002 WL 31427349

Plaintiff's motion papers adequately establish all of the
grounds for pro bono counsel except the potential merit of
the claim. However, I conclude that the motion papers, in
conjunction with the complaint, do establish a sufficient
basis for the submission of this matter to the pro bono
panel.

nature of the deficient health care alleged and plaintiff's
allegation that he previously recovered a judgment in the
New York Court of Claims for the loss of his upper teeth
lead me to conclude that the plaintiff's claim is at least
sufficiently meritorious for the complaint to be considered
by the pro bono panel.

This action is brought pursuant to 42 U.S.C. § 1983;
plaintiff, an incarcerated inmate, alleges that defendants
were deliberately indifferent to serious dental problems
from which he suffered with the result that plaintiff
suffered prolonged an unnecessary pain and now suffers
from an increased likelihood that plaintiff will lose all

2

of his lower teeth. 2 The complaint sets forth the alleged
facts giving rise to plaintiff's claim, including plaintiff's
numerous requests for treatment of his lower teeth and
the actions taken in response. Although it is impossible
to determine the ultimate merits of plaintiff's claim at
this time, the detailed allegations in the complaint, the

End of Document

The complaint alleges that plaintiff has already lost
all of his upper teeth as a result of deficient dental care
provide by prison authorities.

Accordingly, plaintiff's motion to have this matter added
to the list of cases considered by the Court's pro bono panel
is granted. The Pro Se Clerk is directed to submit a copy
of the complaint and a copy of this Order to the members
of the panel.

All Citations
Not Reported in F.Supp.2d, 2002 WL 31427349
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2

Clark v. Burge, Not Reported in F.Supp.2d (2007)
2007 WL 1199475

2007 WL 1199475
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Shawn M. CLARK P.O.A.
James M. Clark, Petitioner,
v.
Superintendent John BURGE, Respondent.
No. 06CV658.
|
April 19, 2007.
Attorneys and Law Firms
Shawn M. Clark P.O.A. James M. Clark, Elmira, NY, pro
se.
Lisa Ellen Fleischmann, New York State Department of
Law, New York, NY, for Respondent.

Order
HUGH B. SCOTT, United States Magistrate Judge.
*1 Before the Court is respondent's motion to dismiss for
failure to exhaust state court remedies (Docket No. 11)
and petitioner's cross-motion for an evidentiary hearing
(Docket No. 15). The parties consented to proceed before
the undersigned as Magistrate Judge on February 22, 2007
(Docket No. 13).

BACKGROUND
Petitioner, attorney in fact James M. Clark for inmate
Shawn M. Clark 1 , filed this Petition for Habeas Corpus in
the United States District Court for the Southern District
of New York (Case No. 06-cv-06979, Docket No. 1, Pet.).
The Petition does not allege any disability or incapacity
on the inmate's part to allow for an attorney in fact to file
for him, although there is a reference there to a mental
evaluation under New York Criminal Procedure Law §
30.30 that was not performed and that petitioner objects to
(Docket No. 1, Pet. at 5). James Clark signed the Petition
as power of attorney for inmate Shawn Clark, but the
Petition was not verified by Shawn Clark, see 28 U.S.C.
§ 2242.

1

When necessary, this Order will distinguish between
attorney in fact James Clark and inmate Shawn
Clark. “Petitioner” when citing the Petition will refer
only to inmate Shawn Clark.

The Petition states that inmate Shawn Clark was
convicted in Cattaraugus County Court for three counts
of sodomy in the first degree and one count of endangering
the welfare of a child, and petitioner was sentenced to
three consecutive prison terms of 25 years on each sodomy
count and a one-year term on the endangering count, to
run concurrently with the sodomy convictions (Docket
No. 11, Resp't Atty. Decl. ¶ 1; see Docket No. 1, Pet.
at 1). The Petition raises several grounds for habeas
relief, namely that the conviction was obtained through
coerced confession and perjured testimony; petitioner was
unlawfully arrested and the evidence obtained during that
arrest was thus tainted; the conviction was obtained in
violation of petitioner's right of self-incrimination; the
prosecution failed to disclose favorable evidence; the
grand jury that indicted petitioner was unconstitutionally
selected and impaneled; petitioner was denied effective
assistance of counsel; and petitioner was denied the right
to appeal due to ineffectiveness of appellate counsel
(Docket No. 1, Pet.).
The United States District Court for the Southern District
of New York transferred this case to this Court (Docket
Nos. 3, 4). Once here, petitioner moved for in forma
pauperis status (Docket No. 6) but also paid the $5 filing
fee; this motion was denied as moot (Docket No. 7).
After being granted an extension of time to file an Answer
(Docket No. 10; see Docket No. 8), respondent moved to
dismiss the Petition for failure to exhaust his state court
remedies (mainly, by not appeal to the New York State
Court of Appeals) (Docket No. 11). Petitioner (through
his power of attorney) has cross-moved for an evidentiary
hearing (Docket No. 15).

DISCUSSION
Petitioner here is “Shawn M. Clark, P.O.A. [Power of
Attorney] James M. Clark.” The attorney in fact is
proceeding pro se on behalf of the inmate petitioner. While
the record includes the power of attorney executed by the
inmate (including the conduct of litigation for him), see
Docket No. 11, Resp't Motion to Dismiss, Ex. C, Supp'al

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1

Clark v. Burge, Not Reported in F.Supp.2d (2007)
2007 WL 1199475

Pro Se Brief, at first unnumbered page), it is not clear why
the power is needed or whether there is a capacity issue
involving the inmate.
*2 Respondent has moved to dismiss for failure to
exhaust state court remedies (Docket No. 11). But the
Court notes the issue of whether petitioner, the attorney
in fact James Clark, has standing to proceed on behalf of
the inmate. “Application for a writ of habeas corpus shall
be in writing singed and verified by the person for whose
relief it is intended or by someone acting in his behalf,” 28
U.S.C. § 2242; see Weber v. Garza, 570 F.2d 511, 513 (5th
Cir.1978). A habeas Petition is an application on behalf
of a person in custody, 28 U.S.C. § 2254. The right of one
person to sue for habeas corpus relief to secure the release
of another person exists only when the application for the
writ sets forth some reason or explanation satisfactory to
the Court showing why the detained person did not sign
and verify and who the next friend is, Wilson v. Dixon,
256 F.2d 536, 537-38 (9th Cir.1958) (one convict filing
habeas petition for fellow inmate). “When the application
for habeas corpus filed by a would be ‘next friend’ does
not set forth an adequate reason or explanation of the
necessity for resort to the ‘next friend’ device, the court
is without jurisdiction to consider the petition,” Weber,
supra, 570 F.2d at 514. Further, next friend status is
not automatically given to whomever seeks to pursue
habeas relief for another person, the next friend must
provide an adequate explanation (such as inaccessibility,
mental incompetence, or other disability) to justify the
intervention, Whitmore v. Arkansas, 495 U.S. 149, 163,
110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (capital habeas).
The burden is upon the party claiming next friend status
to establish the propriety of this status and thus the
Court's jurisdiction, id. at 164 (citation omitted). Absent
that proof, the purported next friend lacks standing and
the Court lacks jurisdiction, id. at 166. Courts have
held that a father lacked standing in his son's habeas
proceeding where there was no finding that the son was
unable to prosecute that action, Weber, supra, 570 F.2d
at 513; Arocho v. Camp Hill Correctional Facilities, 417
F.Supp.2d 661 (M.D.Pa.2005).
Another issue is, assuming the attorney in fact is allowed
to proceed as the next friend of the inmate petitioner,
whether an attorney in fact (such as James Clark here) can
proceed pro se on behalf of a habeas petitioner. A power
of attorney does not allow that person to proceed pro se
on behalf of their principal, see Mandeville v. Wertheimer,

No. 01 Civ. 4469, 2002 WL 432689 (S.D.N.Y. Mar.19,
2002) (Freeman, Mag. J.); see also Taylor v. Henderson,
No. 99 Civ. 4941, 2002 WL 14423 (S.D.N.Y. Jan.4, 2002)
(Peck, Mag. J.) (citing Second Circuit cases). The next
friend status in a habeas proceeding cannot be used to
end run the prohibition against unlicensed practice of law,
see Weber, supra, 570 F.2d at 513. This is similar to the
context of parents suing on behalf of their infant children,
see Fed.R.Civ.P. 17(b). In those situations, the Second
Circuit has held that the parents could not proceed pro se
on behalf of their children, see Murphy v. Arlington Cent.
Sch. Dist. Bd. of Educ., 297 F.3d 195, 201 (2d Cir.2002);
Cheung v. Youth Orchestra Found., 906 F.2d 59, 61 (2d
Cir.1990); see also Prigden v. Andresen, 113 F.3d 391,
393 (2d Cir.1997) (“Appearance pro se denotes (in law
latin) appearance for one's self; so that a person ordinarily
may not appear pro se in the cause of another person
or entity”). In the context of the legal disability being
infancy, the Second Circuit has held that “The court has
a duty to enforce the Cheung rule sua sponte, for ‘the
infant is always the ward of every court wherein his rights
or property are brought into jeopardy, and is entitled to
the most jealous care that no injustice be done to him,’
“ Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123,
125 (2d Cir.1998) (per curiam) (quoting, without internal
quotations or citation, Johns v. County of San Diego,
114 F.3d 874, 877 (9th Cir.1997)). This logic applies in
the habeas context where a next friend is filing on the
petitioner's behalf.
*3 Petitioner's papers (the Petition itself, his supporting
memorandum, Docket No. 2, and his cross-motion,
Docket No. 15) are a jumble of copies of other documents,
some annotated with notes (probably from the attorney
in fact), justifying at least requiring an attorney of law
be involved (either by the attorney in fact or petitioner
retaining counsel or by Court appointment). Petitioner
has not moved for appointment of counsel.
Alternatively, respondent's motion suggests that
petitioner has not exhausted his state court remedies, a
prerequisite for federal habeas relief see Docket No. 11).
Dismissal of this action would allow petitioner to exhaust
his state court remedies.
Absent an allegation why petitioner Shawn Clark cannot
file his Petition on his own, this Court lacks jurisdiction to
hear this Petition and attorney in fact James Clark lacks
standing to file it.

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2

Clark v. Burge, Not Reported in F.Supp.2d (2007)
2007 WL 1199475

So Ordered.

CONCLUSION
For the reasons stated above, the Petition is dismissed.

End of Document

All Citations
Not Reported in F.Supp.2d, 2007 WL 1199475

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3

Candelaria v. Baker, Not Reported in F.Supp.2d (2006)
2006 WL 618576

2006 WL 618576
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Juan CANDELARIA, 89-T-5069, Plaintiff,
v.
R. BAKER, J. Perry, Sergeant, Lane E. Eck,
New York State Department of Correctional
Services, C. Pinker, Nancy O'Connor, RN, Arnot
Ogden Medical Center, Floyd G. Bennett, Jr.,
Kathy Crippen and Timothy Doty, Defendants.
No. 00-CV-0912E(SR).
|
March 10, 2006.
Attorneys and Law Firms
Juan Candelaria, Alden, NY, pro se.
Stephen F. Gawlik, Assistant Attorney General, Buffalo,
NY, Lawrence LeClair, Sayles & Evans, Elmira, NY, for
Defendants.

MEMORANDUM and ORDER 1
1

This decision may be cited in whole or in any part.

ELFVIN, J.
*1 Plaintiff, proceeding pro se, commenced this action on
October 24, 2000. Plaintiff filed an amended complaint on
January 1, 2001. The Court, 2 on April 6, 2001, dismissed
several of plaintiff's claims, terminated a few defendants
and granted plaintiff leave to file a second amended
complaint. On April 23, 2001, plaintiff filed a second
amended complaint and a third amended complaint.
On August 15, 2001, the Court transferred the second
amended complaint to the Southern District of New
York, dismissed some of the claims in the third amended
complaint and terminated several more defendants. The
various defendants answered in October and November
2001. On April 11, 2003, plaintiff moved to amend his
complaint for a fourth time and, on November 5, 2003,
plaintiff filed a motion for a preliminary injunction.

2

This case was initially assigned to Judge William M.
Skretny and then assigned to the undersigned on
April 18, 2001.

The undersigned referred this case on May 9, 2003 to
Magistrate Judge H. Kenneth Schroeder, Jr. pursuant to
28 U.S.C. §§ 636(b)(1)(A) and (B) for all pre-trial matters
and to hear and report upon dispositive motions. Judge
Schroeder, on April 20, 2004, denied plaintiff's April 11,
2003 motion to amend and gave plaintiff 60 days to
move to amend his complaint and to submit a proposed
amended complaint. Plaintiff, after receiving an extension,
moved on August 5, 2004 to amend. Judge Schroeder
issued a Decision and Order (“D & O”) on April 12, 2005
denying plaintiff's August 5, 2004 motion to amend. Also
on April 12, 2005, Judge Schroeder issued a Report and
Recommendation (“R & R”) in which he recommended
that plaintiff's motion for a preliminary injunction be
denied. On May 12, 2005, plaintiff filed his objections to
Judge Schroeder's D & O and R & R (“Objections”). For
the reasons set forth below, the D & O and R & R will be
upheld in their entirety and plaintiff's motions to amend
and for a preliminary injunction will be denied.
The facts and claims relevant to the determination
of the Objections are found as follows and are
undisputed. Plaintiff is currently an inmate of the Wende
Correctional Facility (“Wende”). Plaintiff, a wheelchair
bound paraplegic, has been on dialysis starting in
November 6, 1997. He was incarcerated in Elmira
Correctional Facility (“Elmira”) and received dialysis
treatment at Arnot Ogden Medical Center from December
2, 1997 to August 28, 2001, when he was transferred
to Wende. Plaintiff alleges that, while at Elmira, he
was denied proper medical treatment with respect to his
End-Stage Renal Disease and was retaliated against for
filing grievances and lawsuits. Plaintiff claims that Elmira
staff retaliated against him by, inter alia, changing his
dialysis schedule to a less favorable one, filing falsified
misbehavior reports and denying him access to medical
treatment and files.
This Court may reconsider a D & O issued by a magistrate
judge if “it has been shown that the magistrate judge's
order is clearly erroneous or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A); see also United States v. Mingle, 2004 WL
1746936, at *2 (W.D.N.Y.2004). Objections to a D & O
must satisfy Rule 72.3(a)(2) of the Local Rules of Civil
Procedure (“LRCvP”), which states that the Objections
must

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1

Candelaria v. Baker, Not Reported in F.Supp.2d (2006)
2006 WL 618576

*2 “specify the party's objections
to the Magistrate Judge's order[,][t]he
specific matters to which the party
objects and the manner in which it
is claimed that the order is clearly
erroneous or contrary to law * * *.”

The Objections, taking into consideration plaintiff's
pro se status, satisfy LRCvP 72.3(a)(2). The D & O
found that plaintiff's proposed fourth amended complaint
(“Proposed Complaint”), like his first four complaints,
is long and difficult to comprehend. Plaintiff's 96page Proposed Complaint adds parties, includes all the
previously asserted claims and asserts additional claims,
most of which do not relate to those asserted. The
Proposed Complaint, for the most part, asserts claims that
relate to events that occurred after plaintiff commenced
this action and was transferred to Wende. (See D & O at
6.)
Rule 15(a) of the Federal Rules of Civil Procedure
(“FRCvP”) provides that leave to amend a complaint
“shall be freely given when justice so requires” and
whether to grant such leave is within the court's discretion.
Cramer v. Fedco Auto. Components Co., Inc., 2004 WL
1574691, at *1 (2004 W.D.N.Y.) (J. Elfvin). When no prior
amendment has been made, it is rare that leave should be
denied; however, when leave to amend a complaint would
be futile, it should be denied. Hollander v. Flash Dancers
Topless Club, 2006 WL 267148, at *3 (2d Cir.2006)
(citations and internal quotations omitted). In this case,
plaintiff has had three prior opportunities to amend his
complaint, all of which, evidently, have been futile. There
is no reason to believe that a fourth opportunity to amendamounting to a fifth opportunity to file a complaint-would
be anything but futile. The undersigned agrees with the D
& O that the Proposed Complaint does not comply with
FRCvP 8(a)'s requirement that a complaint be a “short
and plain statement of the claim[s]” and that the newly
alleged claims do not relate to events asserted in the prior
complaints. This case has been pending for over five years
and further complication would be unduly burdensome
to the parties and the Court. See, e.g., De Jesus v.
Sears, Roebuck & Co., Inc., 87 F.3d 65, 72 (2d Cir.1996)
(upholding the district court's denial of plaintiff's fifth
attempt to amend his complaint because he had been given
“ample prior opportunity to allege a claim”); Armstrong v.
McAlpin, 699 F.2d 79, 93-94 (2d Cir.1983) (“Because the

complaint whose allegations were being considered by the
district court was plaintiffs' second amended complaint,
the district court did not abuse its discretion in refusing to
give plaintiffs a fourth attempt to plead.”).
Finally, as the D & O found, plaintiff has commenced
another action in this Court in which he asserts many of
the same claims that he alleges in the Proposed Complaint.
See Candelaria v. Higley, 04-CV-0277E(Sr). The Court
has, on several occasions, denied plaintiff's requests to
consolidate the cases and, as such, plaintiff should not be
able to litigate the same issues in two cases before the same
Court. The Court has given plaintiff ample opportunity
to amend his complaint and the D & O's denial of a
fourth opportunity was not clearly erroneous and will be
affirmed.
*3 With regards to the R & R, the Court “may
accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate”
and may adopt those parts of the R & R to which
no specific objection is raised, so long as such are not
clearly erroneous. 28 U.S.C. § 636(b)(1)(c); see also Black
v. Walker, 2000 WL 461106, at *1 (W.D.N.Y.2000).
Conversely, the undersigned must make a de novo
determination with respect to those portions of the R &
R to which specific objections have been made. 28 U.S.C.
§ 636(b)(1)(c); United States v. Raddatz, 447 U.S. 667,
675-676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Sieteski
v. Kuhlmann, 2000 WL 744112, at *1 (W.D.N.Y.2000).
Objections to an R & R must satisfy LRCvP 72.3(a)(3),
which states that
“[t]he
written
objections
shall
specifically identify the portions
of the proposed findings and
recommendations to which objection
is made and the basis for such
objection and shall be supported by
legal authority.”

Again, because plaintiff is proceeding pro se, LRCvP
72.3(a)(3) has been loosely met and the Court will make a
de novo determination of the issues raised in the Objections
as they relate to the R & R.
Plaintiff seeks an injunction requiring defendants to
transfer him back to the general population at Elmira or
Wende and to replace him on the active kidney transplant

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2

Candelaria v. Baker, Not Reported in F.Supp.2d (2006)
2006 WL 618576

waiting list. Again, as in his Proposed Complaint, plaintiff
is addressing issues not included in and/or related to
his Third Amended Complaint. “Interim injunctive relief
is an extraordinary and drastic remedy which should
not be routinely granted”. Buffalo Forge Co. v. AmpcoPittsburgh Corp., 638 F.2d 568, 569 (2d Cir.1981) (citation
and internal quotations omitted). “[A] party seeking
preliminary injunction must demonstrate (1) that it will
be irreparably harmed in the absence of an injunction,
and (2) either (a) a likelihood of success on the merits or
(b) sufficiently serious questions going to the merits of
the case to make them a fair ground for litigation, and
a balance of hardships tipping decidedly in its favor.”
Brewer v. W. Irondequoit Cent. Sch. Dist., 212 F.3d
738, 743-744 (2d Cir.2000). The purpose of issuing a
preliminary injunction is to “preserve the status quo
and prevent irreparable harm until the court has an
opportunity to rule on the * * * merits.” Devose v.
Herrington, 42 F.3d 470, 471 (8th Cir.1994) (per curiam).
“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.” McKinnon v. Tresman, 2004 WL
78091, at *1 (2004 D. Conn.) (citing Devose, at 471
(denying the inmate plaintiff's motion for preliminary
injunction when the inmate's complaint alleged denial
of adequate medical treatment and his motion for
preliminary injunction sought relief for alleged retaliation
based on filing the instant lawsuit)); see also Omega
World Travel, Inc. v. Trans World Airlines, 111 F.3d
14, 16 (4th Cir.1997) (“[A] preliminary injunction may
never issue to prevent an injury or harm which not even
the moving party contends was caused by the wrong
claimed in the underlying action.”). In McKinnon, the
End of Document

inmate plaintiff commenced the action claiming violations
of his right to privacy of medical information and then
sought a preliminary injunction concerning a possible
transfer among correctional facilities. Id. at *1-*2. The
court denied his request for preliminary injunctive relief
because it was “beyond the scope of th[e] action.”
Id. at *2. Similarly here, plaintiff's Third Amended
Complaint asserts violations that occurred while at Elmira
and now seeks preliminary injunctive relief concerning
activities that occurred subsequent to the commencement
of this action-viz., activities that occurred after he was
transferred to Wende. Plaintiff, as a matter of law, is not
entitled to a preliminary injunction and the Court agrees
with the R & R's recommendation that plaintiff's motion
for a preliminary injunction should be denied.
*4 As mentioned supra, plaintiff has another case
pending before the Court to which the issues raised in
his preliminary injunction are similar. As such, plaintiff's
motion will be denied without prejudice inasmuch as he
can seek injunctive relief in that action.
Accordingly, it is hereby ORDERED that plaintiff's
Objections are overruled, that Judge Schroeder's Decision
and Order filed on April 12, 2005 (docket no.
85) is affirmed, that Judge Schroeder's Report and
Recommendation filed on April 12, 2005 (docket no. 86)
is adopted in its entirety, that plaintiff's motion for a
preliminary injunction (docket no. 43) is denied without
prejudice and that plaintiff's motion to amend (docket no.
64) is denied.

All Citations
Not Reported in F.Supp.2d, 2006 WL 618576
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3

Slacks v. Gray, Not Reported in F.Supp.2d (2008)
2008 WL 2522075

2008 WL 2522075
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Ruben SLACKS, Plaintiff,
v.
GRAY, et al., Defendants.
No. 9:07-CV-0510 (NAM)(GJD).
|
June 25, 2008.
Attorneys and Law Firms
Ruben Slacks, Napanoch, NY, pro se.
Hon. Andrew M. Cuomo, New York State Attorney
General, Christina L. Roberts-Ryba, Esq., Assistant
Attorney General, of Counsel, Albany, NY, for
Defendants.

MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Chief Judge.
*1 Plaintiff Ruben Slacks commenced this action by
filing a pro se civil rights complaint on May 14, 2007. Dkt.
No. 1. Currently before the Court is plaintiff's motion
for injunctive relief. Dkt. No. 42. Defendants oppose the
motion. Dkt. No. 43.
In support of his motion for injunctive relief, plaintiff
alleges that defendant Farrell “made a verbal threat of
bodily harm” against him and that defendant Gray called
him “a punk and a snitch” in front of other inmates. Dkt.
No. 42 at 3. Plaintiff asserts that, as a result of the threats
and Gray having referred to him as a “snitch,” his life is in
danger. Id. Plaintiff asks that “the entire list of defendant's
[sic ] listed in [his] compliant [sic ] as well as any staff
member of Eastern [be ordered] to stay away from [him]
unless it relates directly to their job performance.” Id. at 4.
The standard a court must utilize in considering whether
to grant a request for injunctive relief is well-settled in
this Circuit. As the Second Circuit noted in Covino v.
Patrissi, 967 F.2d 73 (2d Cir.1992), the movant must show:
(a) irreparable harm and (b) either (1) a likelihood of
success on the merits of the claim or (2) sufficiently serious

questions going to the merits and a balance of hardships
tipping decidedly toward the party seeking injunctive
relief. Id. at 77 (affirming district court's denial of inmate's
request for preliminary injunction); see also Roucchio v.
LeFevre, 850 F.Supp. 143, 144 (N.D.N.Y.1994) (McAvoy,
C.J.) (adopting Report-Recommendation of Magistrate
Judge that denied inmate's request for injunctive relief).

(a) Irreparable harm
As to this first factor, with respect to the defendants'
alleged threatening behavior, harassment, and threats,
the Court notes that allegations of future injury without
more do not establish a real threat of injury. Gibson v.
Walker, 95-CV-1649, (N.D.N.Y. Dec. 7, 1995) (DiBianco,
M.J.) (Docket No. 6), adopted, (Docket No. 8) (Feb. 2,
1996) (citing Garcia v. Arevalo, No. 93-CV-8147, 1994 WL
383238 (S.D.N.Y. June 27, 1994)). “The irreparable harm
necessary to support injunctive relief must be ‘actual and
imminent,’ not ‘remote [or] speculative.’ “ Young-Flynn v.
Wright, No. 05 Civ. 1488, 2007 WL 241332, at 7 (S.D.N.Y.
Jan. 26, 2007) (citing Forest City Daly Hous., Inc. v.
Town of N. Hempstead, 175 F.3d 144, 153 (2d Cir.1999).”
Plaintiff's contention of threats and harassment without
more are too speculative to establish irreparable harm.

(b) Likelihood of success on the merits or sufficiently
serious questions going to the merits and a balance of
hardships tipping decidedly toward the plaintiff
In addition, a party is not entitled to injunctive relief unless
there is also proof of a likelihood of succeeding on the
merits of a claim, or evidence that establishes sufficiently
serious questions going to the merits of such a claim
and a balance of hardships tipping decidedly toward the
party seeking such relief. See Covino, 967 F.2d at 77.
In the present case, plaintiff has submitted only his own
affidavit containing his request for injunctive relief and
the reasons why he believes his request should be granted.
Plaintiff has failed to submit proof or evidence which meets
this standard. Plaintiff has failed to demonstrate to the
satisfaction of this Court that he has either a likelihood
of succeeding on the merits of his claims or sufficiently
serious questions going to the merits of such claims and a
balance of hardships tipping decidedly toward him. 1
1

Moreover, to the extent that plaintiff is seeking
injunctive relief against not only the defendants, but
“any staff member of Eastern,” plaintiff's request is
denied. Plaintiff is advised that, except in limited

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1

Slacks v. Gray, Not Reported in F.Supp.2d (2008)
2008 WL 2522075
circumstances not relevant herein, a Court may not
order injunctive relief as to nonparties to an action.
See Rule 65(d) of the Federal Rules of Civil Procedure
(“[e]very order granting an injunction ... is binding
only upon the parties to the action ...”); United States
v. Regan, 858 F.2d 115, 120 (2d Cir.1988); Sumpter
v. Skiff, No. 9:05-CV-0869, 2006 WL 3453416, at * 1
(N.D.N.Y. Nov. 28, 2006).

*2 Since plaintiff has failed to establish either of the two
requisite elements discussed above, plaintiff's request for
injunctive relief is denied.
WHEREFORE, it is hereby
End of Document

ORDERED that plaintiff's motion for injunctive relief
(Dkt. No. 42) is DENIED, and it is further
ORDERED that the Clerk serve a copy of this Order on
the parties in accordance with the Local Rules.
IT IS SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2008 WL 2522075

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© 2017 Thomson Reuters. No claim to original U.S. Government Works.

2