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Allah F. Justice v. Corporal Mcgovern

April 29, 2013

ALLAH F. JUSTICE, PLAINTIFF,
v.
CORPORAL MCGOVERN, DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

Pending before the Court are Defendant Corporal McGovern's ("Defendant") motion to dismiss pro se Plaintiff Allah F. Justice's ("Plaintiff) Amended Complaint and Plaintiff's motion for a temporary restraining order and a preliminary injunction. For the following reasons, Plaintiff's motion is DENIED, Defendant's motion is GRANTED, and Plaintiff's Amended Complaint is DISMISSED WITH PREJUDICE.

BACKGROUND

Plaintiff commenced this action on October 17, 2011 against Defendant McGovern and the Sheriff of the Nassau County Correctional Center ("NCCC") alleging violations of his civil rights under 42 U.S.C. § 1983 ("Section 1983") arising out of threats of violence by Defendant and a prior lawsuit by Plaintiff against Defendant. Liberally construed, the Complaint asserted claims of excessive force in violation of the Eighth Amendment and retaliation in violation of the First Amendment. (Docket Entry 1.) Plaintiff simultaneously filed an application to proceed in forma pauperis. (Docket Entry 2.) On December 6, 2011, the Court granted Plaintiff's request to proceed in forma pauperis but sua sponte dismissed the claims against the Sheriff of NCCC pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b). (Docket Entry 6.)

Defendant moved to dismiss the Complaint on December 26, 2011. (Docket Entry 8.) The Court granted Defendant's motion on June 12, 2012 (Docket Entry 20), finding that: (1) Plaintiff had failed to plead that he suffered any personal injury, which was fatal to his excessive force claim, and (2) he failed to plead that Defendant threatened him because of his prior lawsuit, which was fatal to his retaliation claim. (Docket Entry 20.) See Justice v. McGovern, No. 11-CV-5076, 2012 WL 2155275, at *3-4 (E.D.N.Y. June 12, 2012).

The Court granted Plaintiff leave to file an amended complaint, which he did on June 28, 2012. (Docket Entry 22.)

The Amended Complaint, which is handwritten on the Court's civil rights form, states as follows:

On 9/8/11 while entering the Nassau County Jail I was approached by Corporal McGovern and was told by him that I would be hurt by him and other CO's. He stated that when the time was right I would be dealt with and that he would see to it that I suffer. Sometime when certain shifts work they don't let me out for meals*fn1 or recreation whenever he works because he is now seargent [sic].

My constitutional rights are being violated by Corporal McGovern living out his threats that he made on 9/8/11. (Am. Compl. ¶ IV.) Plaintiff seeks $50,000,000 in monetary relief and describes his injuries as follows:

I am claiming mental injuries due to this incident and there is no real medacine [sic] that can help me[.] I no longer have the will to live[.] I even had thoughts of committing [sic] suicide because the treatment that I am recieving [sic] is unbearable and unlawful. (Am. Compl. ¶¶ IV.A, V.)

Defendant moved to dismiss the Amended Complaint on September 4, 2012. (Docket Entry 28.) Plaintiff did not oppose the motion but, instead, filed a motion for a temporary restraining order and a preliminary injunction enjoining Defendant from "being able to come in contact with [Plaintiff] or to work in the same place that [he is] confined in." (Docket Entry 33.) Both motions are presently pending before the Court.

DISCUSSION

The Court will address Plaintiff's motion for injunctive relief before turning to the merits of ...


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