United States District Court, W.D. New York
HUGH B. SCOTT, District Judge.
Before the Court is the plaintiff's motion for a temporary restraining order (Docket No. 49) and the defendants' motion for summary judgment (Docket No. 56).
The plaintiff, Shawn Evans ("Evans"), commenced this action alleging that he was assaulted by various correctional officers while incarcerated at the Southport Correctional Facility ("Southport"). (Docket No. 1). Evans alleged that on January 13, 2012, Officers P. Murphy ("Murphy"), E. Rozell ("Rozell"), G. Reppert ("Reppert"), S. Davis ("Davis"), J. Terribilini ("Terribilini"), and R. Pulsifer ("Pulsifer") ran into his cell and assaulted him because he filed a grievance. (Docket No. 1 at page 5). He alleged that Rozell kicked him in the stomach, punched him in the face, and called him a "stupid faggot." (Docket No. 1 at page 5). Officer Reppert is alleged to have punched the plaintiff in the stomach and called him a "stupid niggar." (Docket No. 1 at page 5). Evans asserts that defendant Pulsifer was present but took no action to stop the assault. The plaintiff claims that he suffered a cut to his left thigh, back and shoulder injuries, a swollen face and several abrasions. (Docket No. 1 at page 5). Evans asserted that on December 31, 2011, Officers Davis, Rozell and J. Yung ("Yung"), and other officers, came into his cell. According to the plaintiff, "Davis took [off] his jacket and stated: I am tired of you niggars giving me a hard time.' Officer Rozell stated: You can fight a one on one;' and I went: Jump in.'" (Docket No. 1 at page 6)(punctuation added). Evans does not allege that any physical altercation took place at that time, but states that Yung was present and watched the other officers harass him. He was then allegedly denied recreation for that day. (Docket No. 1 at page 6).
Before the original complaint was served upon the defendants, the plaintiff filed an Amended Complaint which contains the same claims relating to December 31, 2011 and January 13, 2012 as the original complaint. The Amended Complaint adds Yung (spelled "Young") as a defendant (although referred to in the body of the original complaint, Yung was not listed as a defendant in the caption). The Amended Complaint also adds a few details such as that the alleged assault on January 13, 2012 was in response to the fact that Evans had filed a grievance against Davis and Rozell; and that the officers wrote a fabricated misbehavior report against him as a result of this incident. (Docket No. 3 at page 3). After the defendants filed an answer (Docket No. 7) in this case and a scheduling order was issued (Docket No. 8), the plaintiff filed a purported Second Amended Complaint adding two new defendants and supplementing the allegations in support of his original claims. (Docket No. 9). Because the plaintiff could no longer amend the complaint as of right, the Court construed this filing as a motion to amend the complaint. (Docket No. 12). The defendants opposed the motion to amend the complaint (Docket No. 13). The Court determined that it would be futile to allow the amendment of the two additional defendants, and denied the motion to amend to that extent, but allowed the proposed Second Amended Complaint to constitute a supplement to the Amended Complaint regarding the averments against the original defendants. (Docket No. 46 at page 7).
In summary, the plaintiff's two existing claims in this case are that he was harassed on December 31, 2011 by Davis, Rozell, Yung (and possibly others), and assaulted in his cell on January 13, 2012 by Murphy, Reppert, Davis, Terribilini, and Pulsifer.
Temporary Restraining Order
The plaintiff asserts that he has been threatened and harassed by "several of the defendants" because he filed the instant lawsuit against them. (Docket No. 49). The plaintiff seeks an order directing the defendants to stop the harassment and that the plaintiff be transferred to another correctional facility. (Docket No. 49 at page 1).
Preliminary injunctive relief "is an extraordinary remedy that should not be granted as a routine matter." JSG Trading Corp. v. Tray-Wrap, Inc. , 917 F.2d 75, 80 (2d Cir.1990). To obtain a preliminary injunction or temporary restraining order, the moving party must show "that 1) absent injunctive relief, it will suffer irreparable harm, and 2) either a) that it is likely to succeed on the merits, or b) that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party." Otokoyama Co. Ltd. v. Wine of Japan Import, Inc. , 175 F.3d 266, 270 (2d Cir.1999). Motions for preliminary injunctions are "frequently denied if the affidavits [in support of the motion] are too vague or conclusory to demonstrate a clear right to relief under Rule 65." 11A C.Wright & A. Miller, Fed. Practice & Proc., Civil 3d § 2949 (2004); see, e.g., Malki v. Hayes, 2012 WL 32611 (E.D.N.Y., 2012)("Plaintiff's allegation that he will be irreparably harmed by all kinds of threats of harassment, intimidation, and stiff punishment' absent an injunction is speculative."); McGillicuddy v. Laidlaw, Adams & Peck, Inc. , 1995 WL 1081307, at *12, n. 19 (S.D.N.Y. Aug.14, 1995) (summarily denying an application for preliminary injunctive relief where the movant's papers failed to demonstrate a basis for granting "this extraordinary remedy").
The defendants assert that the plaintiff has not demonstrated any actual or imminent harm. (Docket No. 52 at page 5). Indeed, aside from being denied recreation on five occasions in January 02, 2013 (Docket No. 55 at page 2), the plaintiff fails to articulate the facts and circumstances regarding any harassing or threatening conduct by the defendants in this action. The plaintiff fails to identify any specific individual as having threatened or harassed him. The Court finds that the plaintiff's allegations in support of the motion for a temporary restraining order are vague, conclusory and insufficient to warrant injunctive relief. In any event, inasmuch as the record reflects that the plaintiff has been transferred to the Auburn Correctional Facility (see Docket Entry dated January 10, 2014), the application for injunctive relief against the defendants, who are employed at the Southport Correctional Facility, is moot.
Motion for Summary Judgment
Summary judgment is appropriate where there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. See Trans Port, Inc. v. Starter Sportswear, Inc. , 964 F.2d 186, 188 (2d Cir. 1992) (citing Bryant v. Maffucci , 923 F.2d 979, 982 (2d Cir. 1991). The Court must draw all reasonable inferences in favor of the non-moving party and grant summary judgment only if no reasonable trier of fact could find in favor of the non-moving party. See Taggart v. Time, Inc. , 924 F.2d 43, 46 (2d Cir. 1991); Howley v. Town of Stratford , 217 F.3d 141 (2nd Cir. 2000). However, the non-moving party must, "demonstrate to the court the existence of a genuine issue of material fact." Lendino v. Trans Union Credit Information, Co. , 970 F.2d 1110, 1112 (2d Cir. 1992) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986)). A fact is material:
when its resolution would "affect the outcome of the suit under the governing law" and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."
General Electric Co. v. New York State Department of Labor , 936 F.2d 1448, 1452 (2d Cir. 1991) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). "The non-moving party must come forward with enough evidence to support a jury verdict... and the... motion will not be defeated merely... on the basis of conjecture or surmise." Trans Sport , 964 F.2d at 188 (citing Bryant v. Maffucci , 923 F.2d at 982). If undisputed material facts are properly placed before the court by the moving party, those facts will be deemed admitted, unless they are properly controverted by the non-moving party." Glazer v. Formica Corp. , 964 F.2d 149, 154 (2d Cir. 1992) (citing Dusanenko v. Maloney , 726 F.2d 82 (2d Cir. 1984). The Court's responsibility in addressing a summary judgment motion is identifying factual issues, not resolving them. See Burger King Corp. v. Horn & Hardart Co. , 893 F.2d 525, 528 (2d Cir. 1990). However, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Nippon Fire & Marine Ins. Co., Ltd. v. Skyway Freight Systems, Inc. , 235 F.3d 53 (2d Cir. 2000) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986).
Evans' December 31, 2011 Claim
The plaintiff asserts that he was verbally harassed on December 31, 2011. (Docket No. 1 at page 6). The plaintiff has not alleged any physical injury relating to this claim. It is well-settled that claims of verbal harassment, without more, are not actionable under § 1983. Purcell v. Coughlin , 790 F.2d 263, 265 (2d Cir.1996) ("The claim that a prison guard called [plaintiff] names also did not allege any appreciable injury and was properly dismissed."); Mitchell v. New York State Dept. of Correctional Services, 2012 WL 6204205 (W.D.N.Y., 2012)(the plaintiff failed to state a colorable constitutional claim). ...