United States District Court, N.D. New York
CARLEE MCMILLIAN 90-T-5238 Plaintiff, pro se
ERIC T. SCHNEIDERMAN New York State Attorney
W. HICKEY, ESQ.General Ass't Attorney General Attorney
for Represented Defendants
DECISION AND ORDER
T. SUDDABY CHIEF UNITED STATES DISTRICT JUDGE
before the Court in this consolidated civil rights action
commenced by plaintiff Herman Carlee McMillian are
plaintiff's motions for preliminary injunctive relief.
Dkt. Nos. 109 (the "First Motion"), 110 (the
"Second Motion"), 112 (the "Third
Motion"); 113 ("Fourth Motion"). Defendants
oppose the First and Second motions. Dkt. No.
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 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)). 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."
Cacchillo, 638 F.3d at 406 (citing Citigroup
Global Mkts., 598 F.3d at 35 n.4) (internal quotation
marks omitted)); see also Tom Doherty Assocs., Inc.
v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d
Cir. 1995) (a plaintiff seeking a mandatory injunction must
make a "clear" or "substantial" showing
of a likelihood of success on the merits of his claim). The
same standards used to review a request for a preliminary
injunction govern consideration of an application for a
temporary restraining order. Local 1814, Int'l
Longshoremen's Ass'n, AFL-CIO v. New York Shipping
Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992);
Perri v. Bloomberg, No. 06-CV-0403, 2008 WL 2944642,
at * 2 (E.D.N.Y. Jul. 31, 2008). The district court has wide
discretion in determining whether to grant preliminary
injunctive relief. Moore v. Consol. Edison Co. of New
York, Inc., 409 F.3d 506, 511 (2d Cir. 2005). "In
the prison context, a request for injunctive relief must
always be viewed with great caution so as not to immerse the
federal judiciary in the management of state prisons."
Fisher v. Goord, 981 F.Supp. 140, 167 (W.D.N.Y.
1997) (citing Farmer v. Brennan, 511 U.S. 825,
846-47 (1994)) (other citations omitted).
each of the motions liberally, plaintiff alleges that
defendants Walters and/or Ramsey confiscated some of his
surgical records and legal materials and refuse to return
them. First Motion at 5-6; Second Motion at 2-3, 5-6; Third
Motion at 7, 9-10; Fourth Motion at 2-4. Plaintiff seeks a
court order directing return of those items. Id.
Plaintiff also complains that he is being harassed and
threatened by defendants Walters and Ramsey (First Motion at
6-7); that correctional officers are harassing him when he
goes to the mess hall for lunch, so he has chosen not go to
eat lunch (Second Motion at 4); he has been moved to a cell
where very little water comes out of the faucet (id.
at 11); and he was denied proper medical care during a
surgery performed by a Dr. Jay Vickers Dewell (Third Motion
at 1-2; Fourth Motion at 6).
opposition to First and Second Motions, defendants contend
that plaintiff has not made the showing required for the
extraordinary relief requested, and also urge denial of the
motion because plaintiff seeks an improper "obey the
law" injunction and relief against persons who are not
parties to this action. Dkt. No. 111 at 1-3.
review, the Court finds that plaintiff's requests for
injunctive relief directing the return of his legal materials
and surgical records must be denied. Plaintiff has failed to
substantiate any allegations of irreparable harm with
evidence in admissible form or to demonstrate, with evidence,
a likelihood of success on the merits of his underlying
claims, or sufficiently serious questions going to the merits
and a balance of hardships tipping decidedly in his favor.
See Ivy Mar Co. v. C.R. Seasons Ltd., 907 F.Supp.
547, 561 (E.D.N.Y. 1995) ("[B]are allegations, without
more, are insufficient for the issuance of a preliminary
injunction."); Hancock v. Essential Res., Inc.,
792 F.Supp. 924, 928 (S.D.N.Y. 1992) ("Preliminary
injunctive relief cannot rest on mere hypotheticals.").
While the Court does not condone misconduct of any kind, and
is mindful that plaintiff's allegations regarding the
confiscation of his legal papers could implicate his
constitutional right to access the courts under the First
Amendment,  plaintiff has not made a showing
sufficient to warrant the issuance of any form of relief
regarding his access to legal materials relating specifically
to this action.
as plaintiff seeks relief against unidentified corrections
staff who are harassing him in the mess hall during lunch, or
Dr. Jay Vickers Dewell, who are not defendants in this
action, the requested relief is not available and the motion
must be denied. Except in limited circumstances not
applicable here, a court may not order injunctive relief as
to non-parties to an action. See Fed. R. Civ. P.
65(d) ("[e]very order granting an injunction . . . binds
only . . . the parties."); United States v.
Regan, 858 F.2d 115, 120 (2d Cir. 1988).
"'[t]o prevail on a motion for preliminary
injunctive relief, the moving party must establish a
relationship between the injury claimed in the motion and the
conduct giving rise to the complaint.'"
Candelaria v. Baker, No. 00-CV-0912, 2006 WL 618576,
at *3 (W.D.N.Y. Mar. 10, 2006) (citations omitted). See,
e.g., Scarborough v. Evans, No. 9:09-CV-0850 (NAM/DEP),
2010 WL 1608950, at *2 (N.D.N.Y. Apr. 20, 2010) (motion for
preliminary injunction alleging use of excessive force and
denial of medical care by non-parties denied where complaint
alleged denial of mental health care and proper conditions of
confinement); Lewis v. Johnston, No. 9:08-CV-0482
(TJM/ATB), 2010 WL 1268024, at *3 (N.D.N.Y. Apr. 1, 2010)
(denying motion for injunctive relief based upon actions
taken by staff at Great Meadow Correctional Facility in 2010,
where the complaint alleged wrongdoing that occurred at
Franklin and Upstate Correctional Facilities in 2006 and
2007). Plaintiff's allegations concerning harassment
which is preventing him from eating lunch, inadequate water
flow in the faucet of his cell, and inadequate medical care
are not related to the allegations set forth in this
upon the foregoing, the Court finds that plaintiff has not
made the showing required for the issuance of preliminary
injunctive relief. As a result, plaintiff's motions are
it is hereby
that plaintiff's motions for preliminary injunctive
relief (Dkt. Nos. 109, 110, 112, and ...