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McMillian v. Walters

United States District Court, N.D. New York

January 18, 2018

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

          HERMAN CARLEE MCMILLIAN 90-T-5238 Plaintiff, pro se

          HON. ERIC T. SCHNEIDERMAN New York Attorney General MICHAEL G. McCARTIN, ESQ. Ass't Attorney General Attorney for Defendant

          DECISION and ORDER

          MAE A. D'AGOSTINO, United States District Judge

         I. INTRODUCTION

         Pro se Plaintiff Herman Carlee McMillian commenced this action pursuant to 42 U.S.C. § 1983 ("Section 1983"), 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. Presently before the Court are Plaintiff's motions for injunctive relief. Dkt. Nos. 71, 73, 74, 76, 77, 78, 80, 81, 83, 85.

         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 2016 Order"), the Court denied Plaintiff's motion. Dkt. No. 21.

         In September, October, and November 2016, Plaintiff filed three motions for preliminary injunctive relief. Dkt. Nos. 30, 32, and 34. Plaintiff 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. By Decision and Order filed on December 30, 2016 (the "December 2016 Order"), the Court denied plaintiff's motions. Dkt. No. 36.

         In April 2017, Plaintiff filed a fifth motion for injunctive relief claiming that Walters 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 sought an order directing Walters to return his legal material. Dkt. No. 51 at 2. Plaintiff also reiterated his claims related to verbal harassment by Walters and Ramsey and renewed his request for an order restraining such conduct. Dkt. No. 50 at 12; Dkt. No. 51 at 6. By Decision and Order filed on June 22, 2017 (the "June 2017 Order"), the Court denied Plaintiff's motion. Dkt. No. 58.

         From June 2017 through August 22, 2017, Plaintiff filed six motions for injunctive relief. Dkt. Nos. 59, 61, 63, 65, 67, and 68. Plaintiff sought an order compelling Walters to return his legal materials, surgical records, and legal dictionary. See Dkt. Nos. 59 at 2-4, 6, 8; 61 at 4-5; 63 at 4-5; 65; 67 and 68. Plaintiff also renewed his request for an order restraining Ramsay from attempting to incite other inmates to verbally abuse and threaten Plaintiff. See Dkt. Nos. 59 at 6, 7, 10, 11; 63 at 6; 65 at 2; and 67 at 12. By Decision and Order filed on September 8, 2017 (the "September 2017 Order"), the Court denied Plaintiff's motions. Dkt. No. 72. In the September 2017 Order, the Court also addressed the possibility of a future bar order. The Court cautioned Plaintiff as follows:

Based upon a review of the previous filings in this action, the Court finds that Plaintiff's persistence in filing frivolous and procedurally deficient motions for injunctive relief may result in the imposition of sanctions, including limitations on his ability to file without prior permission of the Court.

Dkt. No. 72 at 9.

         From August 2017 until January 2018, Plaintiff filed additional ten motions for injunctive relief. Dkt. ...


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