Fludd v. Fischer et al

Filing 38

DECISION AND ORDER denying 29 Motion for Hearing; denying 29 Motion for TRO. Signed by Hon. Charles J. Siragusa on 8/15/12. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOVAN FLUDD,
Plaintiff,
DECISION & ORDER
-vs10-CV-6603-CJS
BRIAN FISCHER, et al.,
Defendants.

APPEARANCES
For Plaintiff:

Jovan Fludd, pro se
06A2055
Wende Correctional Facility
P.O. Box 1187
Alden, New York 14004

For Defendants:

Gary Levine, A.A.G. of Counsel
New York State Office of the Attorney General
144 Exchange Blvd, Suite 200
Rochester, NY 14614
INTRODUCTION

Siragusa, J. Plaintiff Jovan Fludd filed this pro se action seeking relief under 28
U.S.C. § 1983. The case is now before the Court on Plaintiff’s motion for temporary
restraining order, January 27, 2012, ECF No. 29. The Court held oral argument on the
pending motion via video conference on July 11, 2012. After considering the papers filed
and hearing oral argument via video conference, Plaintiff’s application is denied.
DISCUSSION
Plaintiff commenced this action against eleven defendants at Wende Correctional
Facility, including Deputy Superintendent Thomas Sticht (“Sticht”). Plaintiff maintains, inter

alia, that the defendants have unconstitutionally interfered with his mail.
In connection with this action, Plaintiff alleges that non-parties to the suit, Sergeant
Darren McGuire and Corrections Officers Paul Londono and Michael Reuse, retaliated
against him for filing the lawsuit against Sticht. Specifically, Plaintiff alleges that the nonparties tampered with his mail and “went a step further by demanding that petitioner
perform the sexual act of masturbating before the officers along with allowing McGuire and
Londono perform [sic] oral sex on petitioner.” Pl.’s Aff. ¶ 4, Jan. 27, 2012, ECF No. 29.
Plaintiff contends that such acts of harassment have occurred on more than twenty
occasions since the filing of the suit in 2010. According to Plaintiff, the non-parties were
acting as “goons,” or agents of Sticht.
Plaintiff filed motion for temporary restraining order “to cease the retaliatory actions
against the petitioner in the form of mail tampering and sexual harassment” on January 27,
2012, ECF No. 29.
Assuming arguendo that the Court does have jurisdiction over the non-parties, the
Court nonetheless must deny Plaintiff’s application for temporary restraining order. As
clarified during video conference, what Plaintiff is really seeking is to be removed from
Wende Correctional Facility.1 The nature of such a request reflects mandatory injunctive
relief, and not a temporary restraining order. The standard for granting injunctive relief is
higher in situations such as this where the injunction sought “will alter, rather than maintain,
the status quo.” Mitchell v. Goord, No. 06-CV-6197, 2007 WL 925540, at *1 (W.D.N.Y.

1

During the video conference, when the Court attempted to clarify the legal issues regarding
the relief sought for the Plaintiff, Plaintiff became belligerent and shouted profane accusations at
the Court.
-2-

March 23, 2007) (quoting Tom Doherty Ass’n v. Saban Entm’t, Inc., 60 F.3d 27, 33-34 (2d
Cir. 1995)). Where the injunction is properly characterized as mandatory, “the moving
party must make a clear or substantial showing of likelihood of success.” Id. Considering
Plaintiff makes no accusations of retaliation in his Complaint,2 Plaintiff has failed to
demonstrate entitlement to mandatory injunctive relief.
CONCLUSION
For the reasons stated above, Plaintiff’s motion for injunctive relief is denied. The
Court will issue a separate order regarding Defendant’s motion to dismiss and for summary
judgment.
IT IS SO ORDERED.
Dated: August 15, 2012
Rochester, New York
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

2

During video conference, the Court recommended to Plaintiff that he make an application
to amend the Complaint to include the new allegations. Plaintiff, however, contentiously
represented his unwillingness to take advantage of the Court’s suggestion.
-3-