United States District Court, N.D. New York
CARLEE MCMILLIAN Plaintiff, pro se Auburn Correctional
Facility P.O. Box 618 Auburn, NY 13021
ERIC T. SCHNEIDERMAN New York State Attorney General
Ass't Attorney General Attorney for Represented
W. HICKEY, ESQ.Ass't Attorney General
DECISION AND ORDER
T. SUDDABY Chief United States District Judge
the course of this consolidated litigation, plaintiff Herman
Carlee McMillian has filed multiple motions requesting
identical preliminary injunctive relief, see, e.g.,
Dkt. Nos. 100, 109, 110, 112, and 113, which have been
denied, see Dkt. Nos. 108, 114. In light of this
history and the burden that the duplicative requests have put
upon the Court and opposing counsel, on October 5, 2017, this
Court issued an Order "advising Plaintiff that any
further motion filed seeking the same relief from this Court
as set forth in his previous motions for a preliminary
injunction . . . may be stricken from the docket and will not
be considered by the Court." Dkt. No. 117.
before the Court are plaintiff's most recent motions for
preliminary injunctive relief. Dkt. Nos. 118 (the "First
Motion"), 119 (the "Second Motion"), 121 (the
"Third Motion"). Defendants have submitted a motion
requesting that the First Motion and Second Motion be
stricken from the docket in accordance with this Court's
October 5, 2017 Order. Dkt. No. 120.
Court has reviewed the First Motion and Second Motion and
finds that, although some of the allegations contained in
those motions mirror those contained in prior motions,
plaintiff also requests relief concerning (1) plaintiff's
alleged attack by another inmate on October 11, 2017, at the
instigation of correctional officers, see First
Motion at 3-6, and (2) denial of access to an optometrist in
October, 2017, see Second Motion at 3. Accordingly,
defendants' motion to strike the First Motion and the
Second Motion is denied.
declining to strike the First Motion and the Second Motion,
for the reasons that follow, the First Motion, the Second
Motion, and the Third Motion are denied in their entirety.
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 an alleged
attack by another inmate on September 11, 2017, at the
instigation of correctional officers (First Motion at 3-6),
denial of access to an optometrist in October 2017 (Second
Motion at 3), and harassment in October, 2017, by a
correctional officer that plaintiff refers to as "Tight
shirt" (Third Motion at 5), are not related to that
allegations set forth in the underlying consolidated action.
Moreover, to the extent that plaintiff seeks relief similar
to that previously denied by this Court, the remainder of the
First Motion, the Second Motion, and the Third Motion are
denied in their entirety.
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
to the extent that plaintiff seeks relief against
unidentified corrections staff who are not defendants in this
action, the requested relief is not available. 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).
it is hereby
that defendants' motion to strike (Dkt. No. 120) is
DENIED; and it is further
that plaintiff's motions for preliminary injunctive
relief (Dkt. Nos. 118, 119, and ...