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McMillian v. Walters

United States District Court, N.D. New York

June 22, 2017

HERMAN CARLEE MCMILLIAN, Plaintiff,
v.
DANIEL WALTERS, Defendant.

          HERMAN CARLEE MCMILLIAN, HON. ERIC T. SCHNEIDERMAN MICHAEL G. McCARTIN, ESQ. Ass't Attorney General

          DECISION AND ORDER

          Mae A. D'Agosting U.S. District Judge

         I. INTRODUCTION

         Pro se plaintiff Herman Carlee McMillian commenced this civil rights action in the United States District Court for the Eastern District of New York ("Eastern District") asserting claims arising out of his confinement in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See Compl., generally. In March 2016, the Court transferred this matter to the Northern District of New York ("Northern District"). Dkt. No. 5. Presently before the Court is plaintiff's fifth motion for injunctive relief. Dkt. Nos. 50 and 51 (submission in support).

         II. BACKGROUND

         In February 2016, plaintiff commenced this action seeking relief for the alleged violation of his constitutional rights during his confinement at Auburn Correctional Facility ("Auburn C.F."). See Compl. at 2. Specifically, plaintiff alleged that defendant Correctional Officer Daniel Walters ("Walters") used excessive force during an incident in plaintiff's cell on January 28, 2016. See id. at 4, 5. Plaintiff also claimed that Walters was motivated to attack him because plaintiff filed a lawsuit against Walters. See id. at 4. Upon review of the complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A, the Court found that the following claims survived sua sponte review: (1) Eighth Amendment excessive force claims against Walters; and (2) retaliation claims against Walters. Dkt. No. 16 at 12-14.

         On March 23, 2016, plaintiff filed a motion for preliminary injunctive relief claiming that Walters threw water in his cell, refused to deliver legal papers, and read plaintiff's legal mail. Dkt. No. 9; see also Dkt. Nos. 10 and 14 (submission in support). By Decision and Order filed on June 16, 2016 (the "June Order"), the Court denied plaintiff's motion. Dkt. No. 21.

         In October and November 2016, plaintiff filed motions for preliminary injunctive relief and claimed that on September 13, 2016, as he was returning from breakfast, unidentified officers at Auburn C.F. harassed him, called him a "rapist, " and referred to plaintiff as a "child molester." See Dkt. No. 30 at 1. Plaintiff also alleged that on October 3, 2016 and October 11, 2016, Walters circulated material about plaintiff's criminal case resulting in additional harassment by "guards." See Dkt. No. 34 at 1. Plaintiff claimed that officers were harassing him, at Graham's behest, in retaliation for plaintiff filing a habeas corpus petition. See Dkt. No. 30 at 1-2; Dkt. No. 34 at 2, 6. Plaintiff argued that he suffered "irreparable harm" due to the harassment and refused to attend lunch because he could not "eat in peace." See Dkt. No. 30 at 2; Dkt. No. 34 at 2. By Decision and Order filed on December 30, 2016 (the "December Order"), the Court denied plaintiff's motions. Dkt. No. 36.

         In his most recent motion for injunctive relief, plaintiff claims that defendant and Officer Michael Ramsey ("Ramsey") confiscated his legal work from his cell in 2014, 2015, and 2016. Dkt. No. 50 at 1, 3; Dkt. No. 51 at 1. Plaintiff seeks an order directing defendant to return his legal material. Dkt. No. 51 at 2. Plaintiff also reiterates his claims related to verbal harassment by defendant and Ramsey and renews his request for an order restraining such conduct. Dkt. No. 50 at 12; Dkt. No. 51 at 6. Defendant opposes plaintiff's motion. Dkt. No. 55.

         III. DISCUSSION

         The law related to preliminary injunctions was discussed in the June Order and will not be restated herein. See Dkt. No. 21 at 2-4. In his most recent submissions, plaintiff seeks an order compelling defendant to return his legal materials and renews his request for an order restraining the "officers" from harassing him. See Dkt. Nos. 50 and 51. The injunctions sought are mandatory, thus the court will use the "clear and substantial" showing of a likelihood of success standard.

         A. Claims Against Ramsey

         To the extent that plaintiff seeks injunctive relief against Ramsey, an individual who is not a defendant in this action, injunctive relief is available against non-parties only under very limited circumstances, none of which are present here. See Fed. R. Civ. P. 65(d)(2); Doctor's Associates, Inc. v. Reinert & Duree, P.C., 191 F.3d 297, 302-03 (2d Cir. 1999); U.S. v. Regan, 858 F.2d 115, 120 (2d Cir. 1988); see also In re Rationis Enter., Inc. of Panama, 261 F.3d 264, 270 (2d Cir. 2001) ("A court may not grant a final, or even an interlocutory, injunction over a party over whom it does not have personal jurisdiction.").

         B. Claims Related to ...


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