United States District Court, N.D. New York
CARLEE MCMILLIAN, HON. ERIC T. SCHNEIDERMAN MICHAEL G.
McCARTIN, ESQ. Ass't Attorney General
DECISION AND ORDER
D'Agosting U.S. District Judge
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).
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.
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.
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.
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.
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.
Claims Against Ramsey
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.").
Claims Related to ...