United States District Court, N.D. New York
BRIAN S. MUNGER, Plaintiff,
DR. GERALD CAHILL; et al., Defendants.
S. MUNGER Plaintiff, pro se
ERIC T. SCHNEIDERMAN New York Attorney General Attorney for
O. PEDERSON, ESQ. Ass't Attorney General
DECISION AND ORDER
K. SANNES United States District Judge
action was brought pro se by plaintiff Brian S. Munger
seeking redress for the violation of his constitutional
rights during his confinement at Franklin Correctional
Facility ("Franklin C.F.") in 2013. See
Dkt. No. 1 ("Compl."). Upon review of
plaintiff's complaint in accordance with 28 U.S.C. §
1915(e)(2) and 28 U.S.C. § 1915A, this Court concluded
that plaintiff's claims that defendants Dr. Cahill and
Nurse White were deliberately indifferent to his serious
medical needs and that Nurse White provided false information
to Dr. Cahill in retaliation for plaintiff having filed
grievances against her survived initial review and required a
response. Dkt. No. 10 ("October Order") at
answer to the complaint was filed on behalf of Dr. Cahill and
Nurse White on November 18, 2016. Dkt. No. 17. Discovery is
ongoing. See Dkt. No. 18 (Mandatory Pretrial
Discovery and Scheduling Order) Dkt. No. 54 (Hummel,
before the Court are several letter motions from plaintiff.
Dkt. Nos. 23, 24, 36, 40. Liberally construed, plaintiff
seeks an order of this Court granting his request to add his
brother as a "secondary claimant" in this action,
directing his transfer to Washington Correctional Facility
("Washington C.F."), and prohibiting mistreatment
by staff at Ulster Correctional Facility ("Ulster
C.F."). Dkt. Nos. 23, 24. Plaintiff has also filed
renewed requests that pro bono counsel be appointed to
represent him in this action. Dkt. Nos. 36, 40.
Preliminary Injunctive Relief
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)). "In general,
district courts may grant a preliminary injunction where a
plaintiff demonstrates 'irreparable harm' and meets
one of two related standards: 'either (a) a likelihood of
success on the merits, or (b) sufficiently serious questions
going to the merits of its claims to make them fair ground
for litigation, plus a balance of the hardships tipping
decidedly in favor of the moving party.'"
Otoe-Missouria Tribe of Indians v. New York State
Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir.
2014) (quoting Lynch v. City of N.Y., 589 F.3d 94,
98 (2d Cir. 2009) (internal quotation marks omitted)).
However, when the moving party seeks a "mandatory
preliminary injunction that alters the status quo by
commanding a positive act, " the burden is "even
higher." Cacchillo v. Insmed, Inc., 638 F.3d
401, 406 (2d Cir. 2011) (citing Citigroup Global Mkts.,
Inc. v. VCG Special Opportunities Master Fund Ltd., 598
F.3d 30, 35 n.4 (2d Cir. 2010) (internal quotation marks
omitted)). Thus, a 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
first motion, plaintiff states that his health is "not
very good" and expresses concern that he will not be
able to "fairly and financially/properly continue this
claim without the extensive help from family." Dkt. No.
23 at 1-3. In order to facilitate the pursuit of his claims,
plaintiff requests that he be permitted to appoint his
brother Darryl K. Munger as a "secondary claimant,
" and that he be transferred to Washington C.F., which
is located "within (1) one hour of my family."
Id.; see also Dkt. No. 24 at 6. Plaintiff
states that he will continue to "be the signer of all
documents, and be responsible for properly executing [his]
claim, " see Dkt. No. 23 at 2. With respect to
his requested transfer to Washington C.F., plaintiff states
that in light of his limited financial resources, physical
proximity to his family will permit them to "travel to
swap documents and research for copying and what not."
Dkt. No. 36 at 6.
oppose the requested relief. Dkt. No. 26. As defendants
correctly note, plaintiff's brother is not alleged to
have any standing to pursue the claims in this action on his
own behalf and there is no basis upon which he can be added
to this action as a party. Id. at 1-2. Defendants
also oppose plaintiff's request that he be transferred to
Washington C.F. and urge denial of this aspect of his
motions. Dkt. No. 26 at 2; Dkt. No. 27 at 3. Defendants
contend that it is DOCCS, and not this Court, which
determines where plaintiff will be housed during his period
of incarceration. See Meachum v. Fano, 427 U.S. 215,
229 (1976) ("The federal courts do not sit to supervise
state prisons, the administration of which is [of] acute
interest to the States."); Olim v. Wakinekoma,
461 U.S. 238, 248-49 (1983) (inmates have no right to be
confined in a particular state or particular prison within a
given state); Montayne v. Haymes, 427 U.S. 236, 243
(1976) (New York state prisoners have no right to
incarceration at a particular prison facility).
review and with due regard for plaintiff's status as a
pro se litigant, the Court finds that there is no basis in
the record upon which the requested relief may be granted
and, therefore, denies his motion (Dkt. No. 23). Plaintiff
has not identified any basis upon which his brother may
appear in this action on his behalf. By statute, parties
appearing in a federal court may "plead and conduct
their own cases personally or by counsel." 28 U.S.C.
§ 1654; see Berrios v. New York City Hous.
Auth., 564 F.3d 130, 132 (2d Cir. 2009). "Although
[section] 1654 thus recognizes that an individual generally
has the right to proceed pro se with respect to his
own claims or claims against him personally, the
statute does not permit unlicensed laymen to represent anyone
else other than themselves." Berrios, 564 F.3d
at 132 (internal quotation marks omitted; emphasis in
original). "A power of attorney does not allow
that person to proceed pro se on behalf of their
principal[.]" Clark v. Burge, No. 06-CV-0658,
2007 WL 1199475, at *2 (W.D.N.Y. Apr. 19,
2007). Moreover, plaintiff's desire to be in
close contact with and physical proximity to his family, no
matter how sincere, is not sufficient to warrant the
requested judicial relief.
second motion, filed during his confinement at Ulster C.F.,
plaintiff claims that he was being denied proper and adequate
medical care in retaliation for his having filed this
lawsuit. Dkt. No. 24. As alleged, medical staff at Ulster C.F.
denied plaintiff access to his medical devices and
discontinued previously prescribed pain medication.
Id. Plaintiff seeks an order directing that his