Bradshaw v. Annucci

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

JAY BRADSHAW,

Plaintiff,

9:23-CV-0602

v. (MAD/ML)

ANTHONY J. ANNUCCI, et al.,

Defendants.

APPEARANCES:

JAY BRADSHAW

08-A-3654

Plaintiff, pro se

Upstate Correctional Facility

P.O. Box 2001

Malone, NY 12953

HON. LETITIA JAMES DAVID C. WHITE, ESQ.

New York State Attorney General Ass't Attorney General

Attorney for Defendants

The Capitol

Albany, NY 12224

MAE A. D'AGOSTINO

United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Pro se plaintiff Jay Bradshaw commenced this action by filing a complaint asserting

claims pursuant to 42 U.S.C. § 1983 ("Section 1983"), together with an application to proceed

in forma pauperis ("IFP"), and a request for preliminary injunctive relief. Dkt. No. 1

("Compl."); Dkt. No. 2 ("IFP Application"); Dkt. No. 4 ("First Preliminary Injunction Motion").

By Decision and Order entered on July 24, 2023, this Court granted plaintiff's IFP

Application in accordance with 28 U.S.C. § 1915(g), and following review of the complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), dismissed several claims

and defendants from this action, and found that several other claims survived sua sponte

review and required a response. Dkt. No. 5 ("July 2023 Order"). The Court also denied the

First Preliminary Injunction Motion without prejudice. Id. at 62-64.2

Presently before the Court are the following: (1) plaintiff's second motion for injunctive

relief, Dkt. No. 23 ("Second Preliminary Injunction Motion"); (2) plaintiff's letter request for a

stay of his deadline to submit an amended complaint based on his lack of access to his "legal

papers", Dkt. No. 29 ("Stay Request"); (3) defendants' motion to revoke plaintiff's IFP status

and opposition to the Second Preliminary Injunction Motion, Dkt. No. 62 ("Motion to

Revoke");3 and (4) plaintiff's third motion for injunctive relief, Dkt. No. 74 ("Third Preliminary

Injunction Motion"), which defendants have opposed, Dkt. No. 75.

1 The complaint was also accompanied by an application seeking leave to commence a new civil action

in this District as required by the Pre-Filing Order entered by the Honorable Glenn T. Suddaby on March 3, 2022.

See In re: Bradshaw, No. 9:21-PF-0002 (GTS), Dkt. No. 4 ("Pre-Filing Order"). By Decision and Order entered

on May 18, 2023, the Honorable Brenda K. Sannes granted plaintiff's application to commence this action. Id.,

Dkt. No. 10.

2 As of the date of the July 2023 Order, plaintiff had three other actions pending in this District. See

Bradshaw v. Locke, No. 19-CV-428 (N.D.N.Y. filed April 10, 2019) ("Bradshaw v. Locke"); Bradshaw v. Marshal,

No. 21-CV-0826 (N.D.N.Y. filed July 21, 2021) ("Bradshaw v. Marshal"); Bradshaw v. Annucci, No. 21-CV-0901

(N.D.N.Y. filed Aug. 11, 2021) ("Bradshaw v. Annucci I").

3 Although docketed as a motion to dismiss, defendants effectively seek conditional dismissal of

plaintiff's complaint unless and until he pays the filing fee for this action. Plaintiff has opposed the Motion to

Revoke and, in the same submission, replied to defendants' opposition to the Second Preliminary Injunction

Motion. See Dkt. No. 72.

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II. MOTION TO REVOKE PLAINTIFF'S IFP STATUS

A. Overview of the Complaint

Generally speaking, and as relevant to defendants' Motion to Revoke, plaintiff's

complaint alleges that at the time of filing, he had been continuously confined in the

Residential Rehabilitation Unit ("RRU") for one year, and was scheduled to remain housed

there for at least another year. Compl., ¶¶ 221, 233, 248, 259-260, 303. The complaint

further alleges that plaintiff is confined in his cell for all but two hours each day, and had not

received, throughout the year that he was confined in the RRU, an individual rehabilitation

plan or private mental health therapy, despite a history of self-harm and ongoing anxiety and

depression associated with his confinement status. Id., ¶¶ 307-313, 332-340. The complaint

also identifies several incidents of plaintiff being assaulted by other inmates, alleges that he is

likely to be harmed in the future if he continues to be placed in a double-bunk cell, and further

alleges that he was informed three days before the complaint was filed that he would be

placed in a double-bunk cell "as soon as possible." Id., ¶¶ 96-179.

B. Initial Determination of Imminent Danger

Prior to commencing this action, plaintiff had filed more than twenty other civil actions

in the district courts in the Second Circuit since 2008. See July 2023 Order at 3-4. In at least

four of those actions, plaintiff acquired "strikes" as defined in 28 U.S.C. § 1915(g) ("Section

1915(g)").4 Id. at 4 n.5. Notwithstanding this determination, plaintiff's IFP Application was

4 The actions in which plaintiff acquired strikes are as follows: (1) Bradshaw v. McQueen, No.

08-CV-5518, Dkt. No. 32 (S.D.N.Y. Feb. 11, 2010) (dismissing complaint for failure to state a claim upon which

relief may be granted); (2) Bradshaw v. Brown, No. 13-CV-4308, Dkt. No. 52 (E.D.N.Y. May 18, 2017) (Mandate

dismissing appeal of dismissal order on grounds that it lacked "an arguable basis either in law or in fact"); (3)

Bradshaw v. The City of New York, No. 15-CV-2166, Dkt. No. 58 (E.D.N.Y. Aug. 22, 2017) (dismissing complaint

for failure to state a claim upon which relief may be granted); (4) Bradshaw v. The City of New York, No.

15-CV-2166, Dkt. No. 62 (E.D.N.Y. Nov. 16. 2018) (Mandate dismissing appeal on grounds that it lacked "an

arguable basis either in law or in fact").

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granted based on the Court's determination that the allegations in the complaint were

sufficient to "plausibly suggest that plaintiff [was] 'under imminent danger of serious physical

injury' when he signed his complaint on April 17, 2023." Id. at 7 (citation omitted).

C. Overview of Defendants' Motion and Plaintiff's Response

Defendants argue that plaintiff's IFP status should be revoked because he did not face

"imminent danger" when he submitted his complaint for filing. See generally, Dkt. No. 62-10.

Defendants argue that the complaint fails to satisfy the "imminent danger" requirement

because (1) the majority of the claims that survived initial review are based on incidents of

past harm that occurred long before the filing date of the complaint, and (2) plaintiff's

allegations of future harm based on the alleged events that occurred near the time of filing

are speculative. Id. at 17-18.5

Defendants alternatively request a hearing to determine whether plaintiff was in danger

of "imminent harm" pursuant to the applicable law set forth below. Id. at 21. Finally,

defendants ask the Court to enjoin plaintiff from filing further motions in this case without

court approval. Id. at 21-23.6

In his response to defendants' Motion to Revoke, plaintiff has submitted a sworn

statement wherein he addresses the nature of his imminent danger allegations and details

"relevant facts" that have occurred after the filing date of the complaint, which he believes

support his request for injunctive relief. See Dkt. No. 72. Plaintiff has also submitted a

memorandum of law and several exhibits in support of his opposition. Dkt. No. 72-1; Dkt. No.

5 The page citations herein are those assigned by the Court's electronic filing system, CM/ECF.

6 Defendants also implore the Court to revoke the special solicitude afforded to pro se litigants in

evaluating the sufficiency of plaintiff's imminent danger allegations. Dkt. No. 62-10 at 20-21.

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72-2.

D. Relevant Legal Standard

Where a plaintiff seeks leave to proceed IFP, the Court must determine whether the

plaintiff has demonstrated sufficient economic need to proceed without prepaying, in full, the

Court's filing fee. The Court must also determine whether the "three strikes" provision of

Section 1915(g) bars the plaintiff from proceeding IFP and without prepayment of the filing

fee.7 More specifically, Section 1915(g) provides as follows:

In no event shall a prisoner bring a civil action or appeal a judgment

in a civil action or proceeding under this section if the prisoner has,

on 3 or more prior occasions, while incarcerated or detained in any

facility, brought an action or appeal in a court of the United States

that was dismissed on the grounds that it is frivolous, malicious, or

fails to state a claim upon which relief may be granted, unless the

prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

The "imminent danger" exception protects a prison inmate exposed to potential

"serious physical injury" from the consequences of his earlier mistakes in filing frivolous

litigation. Congress enacted the imminent danger exception contained in the final phrase of §

1915(g) as a "safety valve" to prevent impending harms to prisoners otherwise barred from

proceeding in forma pauperis. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). "[F]or a

prisoner to qualify for the imminent danger exception, the danger must be present when he

files his complaint–in other words, a three-strikes litigant is not excepted from the filing fee if

he alleges a danger that has dissipated by the time a complaint is filed." Pettus v.

7 The manifest intent of Congress in enacting Section 1915(g) was to curb prison inmate abuses and to

deter the filing of multiple, frivolous civil rights suits by prison inmates. Tafari v. Hues, 473 F.3d 440, 443-44 (2d

Cir. 2007). The question of whether a prior dismissal is a "strike" is a matter of statutory interpretation and, as

such, is a question for the court to determine as a matter of law. Tafari, 473 F.3d at 442-43.

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Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009) (citation omitted); see also Polanco v.

Hopkins, 510 F.3d 152 (2d Cir. 2007) (imminent danger claims must be evaluated at the time

the complaint is filed, rather than at the time of the events alleged). In addition, "§ 1915(g)

allows a three-strikes litigant to proceed [in forma pauperis] only when there exists an

adequate nexus between the claims he seeks to pursue and the imminent danger he

alleges." Pettus, 554 F.3d at 296. In deciding whether such a nexus exists, the Second

Circuit instructs the courts to consider "(1) whether the imminent danger of serious physical

injury that a three-strikes litigant alleges is fairly traceable to unlawful conduct asserted in the

complaint, and (2) whether a favorable judicial outcome would redress that injury." Id. at 298-

99. Both requirements must be met in order for the three-strikes litigant to proceed in

forma pauperis. Id.

Generally speaking, the allegations relevant to the imminent danger inquiry "are those

in which [plaintiff] describes physical injury, threats of violence, and deprivation of medical

treatment." Chavis v. Chappius, 618 F.3d 162, 165 (2d Cir. 2010). Although the Second

Circuit has cautioned against "an overly detailed inquiry into whether the allegations qualify

for the exception," id. at 169-70 (quoting Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th

Cir. 2007)), when a defendant challenges a prisoner's claim of imminent danger, a district

court may "reexamine" its provisional determination of imminent danger and "conduct a

narrow evidentiary inquiry into the prisoner-litigant's fear of imminent danger" at the time of

filing. Shepherd v. Annucci, 921 F.3d 89, 94-95 (2d Cir. 2019). If the evidentiary

submissions show the plaintiff's explanation for why he was in imminent danger to be

"ridiculous," "conclusory," or "without foundation[,]" the district court may revoke the plaintiff's

previously granted IFP status. Id. at 95, 97; see also Chavis, 618 F.3d at 170 ("A court may

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find that a complaint does not satisfy the 'imminent danger' exception if the complainant's

'claims of imminent danger are conclusory or ridiculous.'") (quoting Ciarpaglini v. Saini, 352

F.3d 328, 331 (7th Cir. 2003)); Nelson v. Nesmith, No. 9:06-CV-1177 (TJM/DEP), 2008 WL

3836387, at *5 (N.D.N.Y. Aug. 13, 2008) ("The imminent danger claimed by the inmate . . .

must be real, and not merely speculative or hypothetical."); accord, Welch v. Selsky, No.

9:06-CV-0812 (LEK/DEP), 2008 WL 238553, at *5 (N.D.N.Y. Jan 28, 2008); Gamble v.

Maynard, No. 9:06-CV-1543 (DNH/DEP), 2008 WL 150364, at *4 (N.D.N.Y. Jan. 14, 2008).

E. Analysis

Liberally construed, the complaint alleges that plaintiff faced imminent danger of

serious physical injury at the time he commenced this action based on (1) the nature of his

restrictive confinement on April 17, 2023 -- scheduled to continue for another year -- and the

potential deterioration on his mental health related to such confinement and a lack of access

to mental health treatment, (2) plaintiff's past history of being assaulted by other inmates

while in a double-bunk cell, (3) plaintiff's potential for future harm if he continues to be placed

in a double-bunk cell with inmates who may wish to harm him, and (4) a likelihood of his

imminent placement in a double-bunk cell with an inmate who did not pass a tuberculosis

screening. See Compl. at ¶¶ 96-179, 221, 233, 248, 259-260, 303. 307-313, 332-340.

Upon review, the Court finds that the aforementioned allegations of imminent are

sufficiently specific to place defendants on notice as to the risk of harm that plaintiff faced at

the time of filing. Indeed, as plaintiff notes in his opposition to the Motion to Revoke, the

complaint identifies dates that plaintiff was assaulted by other inmates while in a double-bunk

cell, including on March 12, 2023, and also specifically alleges that (1) after plaintiff was

assaulted by a gang member on March 12, 2023, he was relocated to a cell with another

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"gang member" because defendant Bishop "failed to do a reassessment[,]" (2) defendants

DeCosse and Bishop denied his request for protective custody, and (3) on April 14, 2023,

defendants Jubert and Gravlin recommended that he be placed in a cell with another inmate

who had not been cleared for tuberculosis, and defendant Jubert told plaintiff that the double-

celling would happen "as soon as possible." See Compl. at ¶¶ 171-79; Dkt. No. 72 at 2-3.8

In addition, defendants have not introduced any evidence to rebut either the

aforementioned allegations, or plaintiff's allegations of prior self-harm and a lack of access to

mental health treatment around the time that the complaint was filed. In fact, defendants did

not introduce any record evidence to refute plaintiff's allegations of imminent danger.

Furthermore, the Second Circuit has expressly held that "a prisoner with three strikes

who adequately alleges imminent danger can, in the same suit, proceed IFP on other claims

that lack a nexus to imminent danger." Chavis v. Chappius, 618 F.3d 162, 171 (2d Cir. 2010)

("Nothing in the text of § 1915 provides any justification for dividing an action into individual

claims and requiring a filing fee for those that do not relate to imminent danger."). Thus,

there is no merit to defendants' argument that plaintiff's IFP status should be revoked

because several claims in the complaint relate to alleged events that occurred in 2021 and

2022.

In light of the foregoing, defendants' motion to revoke plaintiff's IFP status is denied.

Based on the lack of record evidence challenging plaintiff's imminent danger allegations, the

Court also declines to hold a hearing in further consideration of this matter.

III. PRELIMINARY INJUNCTION MOTIONS

8 Plaintiff also states in his opposition that this inmate threatened to harm him and defendant Jubert was

aware of this threat. See Dkt. No. 72, ¶¶ 15-16.

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A. Relevant Legal Standard

Preliminary injunctive relief "'is an extraordinary and drastic remedy, one that should

not be granted unless the movant, by a clear showing, carries the burden of persuasion.'"

Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir. 2005) (quoting

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). "In 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

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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).

"'A showing of irreparable harm is the single most important prerequisite for the

issuance of a preliminary injunction.'" Bisnews AFE (Thailand) Ltd. v. Aspen Research

Group Ltd., 437 Fed. App'x 57, 58 (2d Cir. 2011) (summary order) (quoting Faiveley

Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009)). Generally an

alleged violation of a constitutional right creates a presumption of irreparable harm. Jolly v.

Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). However, speculative, remote or future injury is

not the province of injunctive relief. Los Angeles v. Lyons, 461 U.S. 95, 111-12 (1983).

Rather, a plaintiff seeking to satisfy the irreparable harm requirement must demonstrate that

"absent a preliminary injunction [he or she] will suffer an injury that is neither remote nor

speculative, but actual and imminent, and one that cannot be remedied if a court waits until

the end of trial to resolve the harm." Bisnews AFE (Thailand), 437 Fed. App'x at 58 (quoting

Faiveley, 559 F.3d at 118); Garcia v. Arevalo, No. 93-CV-8147, 1994 WL 383238, at *2

(S.D.N.Y. June 27, 1994) ("It is well settled that an allegation of the mere possibility of

irreparable harm is insufficient to justify the drastic remedy of preliminary injunction. . . . A

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party who seeks the extraordinary remedy of a preliminary injunction must show the alleged

irreparable harm to be imminent, not remote or speculative, and the alleged injury to

constitute one that is incapable of being fully remedied by monetary damages." (citations

omitted)).

B. Procedural History

In his First Preliminary Injunction Motion, plaintiff sought an order enjoining defendants

Annucci, Uhler, Bishop, and Dumas from (1) assigning officials "involved in assaulting plaintiff

from assuming a post or supervising an area where plaintiff is located," (2) "assigning plaintiff

to double-bunk cells or having [him] remain in a double-cell [for] more than 60 days unless he

volunteer[s]," (3) "continuing plaintiff's confinement in the RRU[,]" and (4) "denying [him]

medical care[.]" See First Preliminary Injunction Motion at 1.

The Court denied the motion on the grounds that plaintiff was transferred to Great

Meadow Correctional Facility after he filed it, and there was no "credible evidence" before the

Court that he was "likely to continue suffering, at his new facility, the same alleged harm that

forms the basis of his . . . motion[.]" July 2023 Order at 64.

On October 5, 2023, the Court received a notice of change of address and renewed

request for injunctive relief from plaintiff based on his transfer back to Upstate Correctional

Facility. Dkt. No. 17. On October 20, 2023, the Court issued a Text Order directing counsel

for the defendants to file a response within thirty days. Dkt. No. 22. Thereafter, plaintiff filed

the Second Preliminary Injunction Motion and counsel filed a letter request for an extension

of time to respond to the complaint and pending requests for injunctive relief. Dkt. No. 23

("Second Preliminary Injunction Motion"); Dkt. No. 24 ("Extension Request").

By Text Order entered on October 27, 2023, the Court denied as moot plaintiff's

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request for injunctive relief filed on October 5, 2023, and extended counsel's deadline to

respond to the complaint and Second Preliminary Injunction Motion to December 15, 2023.

Dkt. No. 25. Prior to the expiration of counsel's response deadline, plaintiff filed two

additional letter requests, which were addressed and denied in a Text Order entered on

December 5, 2023. Dkt. No. 26; Dkt. No. 27; Dkt. No. 28 ("December 2023 Text Order"). The

December 2023 Text Order also advised plaintiff that he could "includ[e], in any reply

submission, sworn statements and supporting record evidence detailing any incidents of

harm that have occurred since October 20, 2023, which are relevant to his motion[,]" and that

"[n]o other submissions" related to his request for injunctive relief would be considered.

The day after the issuance of the December 2023 Text Order, the Court received

plaintiff's Stay Request. Thereafter, plaintiff replied to defendants' opposition to the Second

Preliminary Injunction Motion. See Dkt. No. 72. Roughly two months later, he filed the Third

Preliminary Injunction Motion.

C. Second Preliminary Injunction Motion

1. Overview of the Motion

The Second Preliminary Injunction Motion seeks an order enjoining defendants

Annucci and Uhler, and their successors, from (1) "assigning any named defendant who [has]

assaulted plaintiff or failed to intervene from assuming a post or supervising an area where

plaintiff is located[,]" (2) "considering and assigning plaintiff to a double-cell for his safety" or

"transfer[ring] plaintiff to a facility where he [will] not be double bunked[,]" and (3)

"transfer[ring] plaintiff to another facility . . . to prevent further retaliation." See Second

Preliminary Injunction Motion at 1.

Plaintiff's requested relief is based on the following incidents, detailed in his two

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declarations submitted in support of his motion: (1) on September 28, 2023, plaintiff was

transferred back to Upstate Correctional Facility and was escorted to his cell by defendant

Menard, who "grabb[ed]" plaintiff's waist restraint during the escort, "grabbed [him] by the

back of [his] shirt" when he entered "the cage," then "threatened to slam [him] to the ground"

and did so;9 (2) "[a]bout an hour later, a known Blood was brought to the cell" and

"immediately attacked [plaintiff,]" which resulted in his relocation to another cell;10 (3) the next

day, plaintiff was "attacked by [another] Blood gang member" and then "relocated to another

cell with a third Blood gang member"; (4) on October 3, 2023, the "third Blood gang member"

"groped" plaintiff and "attacked" him because he "continued to resist" this inmate's sexual

advances; (5) later that day, plaintiff was relocated to a cell with "a Crip gang member" and

"attacked . . . with a weapon" and "stabbed three or four time[s]" within "minutes" of his

arrival; (6) plaintiff was then "relocated to a cell with a fourth Blood" and again "attacked"

"[w]ithin minutes"; (7) on October 3, 2023, a non-party corrections official "twisted and bent

the handcuffs" on plaintiff's wrists during an escort, and this official and defendant Trombley

also worked together to remove the handcuffs from plaintiff's hands in a painful manner; (8)

on October 11, 2023, a different non-party corrections official "squeezed the handcuffs

around plaintiff[']s wrist and the waist restraint around [his] ribs" and also attempted to "trip

plaintiff" for no reason;11 (8) on November 10, 2023, a third non-party corrections official

9 Plaintiff states in his reply papers that he suffered injuries from this incident that included "an abrasion

to [the] right eye [and] right and left wrist." Dkt. No. 72, ¶¶ 24-25.

10 Plaintiff states in his reply declaration that a non-party corrections sergeant was responsible for this

cell assignment and plaintiff's cell relocation following this assignment. See Dkt. No. 72, ¶¶ 49-51.

11 Plaintiff's initial declaration in support of the Second Preliminary Injunction Motion is dated October

23, 2023. See Dkt. No. 23 at 3. However, this declaration does not mention any events involving corrections

officials subjecting him to unwanted force at any point between October 3 and October 23, 2023.

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"twisted and bent" the handcuffs on plaintiff's wrists while "appl[ying] weight" and "pinn[ing]

plaintiff to the wall"; (9) that same day, plaintiff was "attack[ed]" by his cellmate; (10) on

November 12, 2023, defendant Martin "repeatedly and intentionally collided into plaintiff

during [an] escort, then pushed plaintiff in the back as [his] cell door was closing"; and (11) on

December 6, 2023, a fourth non-party corrections official "pulled and grabbed plaintiff" to

remove him from his cell and "pushed [him] several time[s] in the back without provocation[.]"

Dkt. No. 23 at 2-3; Dkt. No. 72 at 4-5.12

In opposition to the Second Preliminary Injunction Motion, defendants have adduced

record evidence, including sworn statements from several named defendants, denying that

plaintiff was wrongly placed in a double-cell at any point, and further denying improperly

subjecting plaintiff to excessive force. See Dkt. No. 62-1; Dkt. No. 62-2; Dkt. No. 62-3; Dkt.

No. 62-5; Dkt. No. 62-6; Dkt. No. 62-8; Dkt. No. 62-9. Defendants also argue that the Second

Preliminary Injunction Motion should be denied because (1) plaintiff has failed to offer

evidence showing that any of the named defendants were involved in his placement in

double-bunk cells despite knowing that he faced a risk of harm, (2) plaintiff has failed to

establish that his housing assignment places him in more danger than ordinarily exists in a

prison setting, (3) the alleged past instances of excessive force are not enough to establish a

future likelihood of irreparable harm, (4) plaintiff has failed to establish a likelihood of success

on the merits of his underlying claims, and (5) it is not in the public's interest for incarcerated

individuals to select where and how they are housed. Dkt. No. 62-10 at 12-15.

2. Analysis

12 Plaintiff also submitted several exhibits with his reply papers, comprised mostly of grievances and

medical records. See Dkt. No. 72-1 at 17-43; Dkt. No. 72-2.

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As noted, the Second Preliminary Injunction Motion seeks three separate forms of

mandatory injunctive relief based on use-of-force and harassment issues involving staff, and

plaintiff's involvement in altercations with cellmates.

Insofar as plaintiff seeks a transfer to another correctional facility based on this alleged

wrongdoing, as this Court has expressly advised him in the past, it is the New York State

Department of Corrections and Community Supervision ("DOCCS"), and not this Court, that

determines where plaintiff will be housed during his period of incarceration. See Meachum,

427 U.S. at 229; Olim v. Wakinekona, 461 U.S. 238, 248-49 (1983) (stating that inmates have

no right to be confined in a particular state or particular prison within a given state); Montayne

v. Haymes, 427 U.S. 236, 243 (1976) (holding that New York state prisoners have no right to

incarceration at a particular prison facility). It is well-established that DOCCS has "broad

leeway in deciding where to house the inmates under its protective care." McFadden v.

Solfaro, Nos. 95-CV-1148, 95-CV-3790, 1998 WL 199923, at *10 (S.D.N.Y. Apr. 23, 1998).

Furthermore, according to DOCCS Directive #4948, when a transfer is sought for safety

reasons, the Office of Classification and Movement is responsible for determining "the

appropriate alternative facility placement for [an] incarcerated individual, if any, and issu[ance

of any] Transfer Order." See Directive #4948, Section V(A)(3);

https://doccs.ny.gov/system/files/documents/2024/01/4948-public.pdf (last visited Apr. 23,

2024). Neither DOCCS nor any officials from the Office of Classification and Movement are

defendants in this case, and the law is well-settled that, with limited exception, injunctive relief

cannot be awarded against non-parties. 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); United States v. Regan,

858 F.2d 115, 120 (2d Cir. 1988); see also In re Rationis Enterprises, Inc. of Panama, 261

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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.").

Insofar as plaintiff seeks an order from this Court prohibiting the Superintendent of

Upstate Correctional Facility from allowing certain officials to have contact with plaintiff based

on past use-of-force and harassment incidents, with the exception of defendant Menard,

none of the officials involved in this alleged wrongdoing are parties to this action, and

plaintiff's underlying claims in this case bear no relationship to the alleged isolated incidents

of harm involving these officials. Thus, this alleged wrongdoing cannot provide a basis for a

preliminary injunction in this lawsuit. See Stewart v. U.S. I.N.S., 762 F.2d 193, 198-99 (2d

Cir. 1985) ("Only after an action has been commenced can preliminary injunctive relief be

obtained. . . . Herein, Stewart filed a complaint in the district court in October, 1983, alleging

discrimination in employment based on conduct of the type asserted in his 1980 EEOC

claims, and thereby commenced an action pertaining to the then alleged discriminatory

conduct. His July, 1984 motion for preliminary injunctive relief, claiming discrimination and

retaliation based on his suspension without pay in May, 1984, presents issues which are

entirely different from those which were alleged in his original complaint. Since Stewart

neither filed a separate complaint in the district court relating to his suspension without pay

and based upon his MSPB action, . . . nor sought to avail himself of the liberal rules which

would have allowed for the amendment of his original October, 1983 complaint, we hold that

no jurisdictional basis existed upon which the district court herein could have issued its

preliminary injunctive relief."); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) ("It is

self-evident that Devose's motion for temporary relief has nothing to do with preserving the

district court's decision-making power over the merits of Devose's [Section] 1983 lawsuit. To

16

the contrary, Devose's motion is based on new assertions of mistreatment that are entirely

different from the claim raised and the relief requested in his inadequate medical treatment

lawsuit. Although these new assertions might support additional claims against the same

prison officials, they cannot provide the basis for a preliminary injunction in this lawsuit.");

Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) ("[A]

preliminary injunction may never issue to prevent an injury or harm which not even the

moving party contends was caused by the wrong claimed in the underlying action."); Colvin v.

Caruso, 605 F.3d 282, 300 (6th Cir.2010) (the plaintiff "had no grounds to seek an injunction

pertaining to allegedly impermissible conduct not mentioned in his original complaint);

Davidson v. Scully, 914 F. Supp. 1011, 1016 (S.D.N.Y. 1996) ("Plaintiff complains that his

furnishings and supplies are inadequate and this interferes with his ability to prepare his

cases. Although argued as a motion for a preliminary injunction, plaintiff in fact has moved for

an order unrelated to the merits of his underlying claims, because there is no actual

controversy between the parties before the Court regarding the adequacy of plaintiff's

furnishings and supplies."); Santiago Cruz v. Doe #1, No. 9:21-CV-0806 (TJM/ML), 2021 WL

5629097, at *3 (N.D.N.Y. Dec. 1, 2021) (denying request for injunctive relief where the

plaintiff failed to make a clear showing that the allegations that form the basis of his motion

are "related to the underlying action" (collecting cases)); Candelaria v. Baker, No. 00-CV-

0912, 2006 WL 618576, at *3 (W.D.N.Y. Mar. 10, 2006) ("To 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." (internal quotation marks

and citations omitted)); see also Fabrizio v. Oliver, No. 9:18-CV-0339 (GTS/DEP), 2018 WL

11243392, at *3 (N.D.N.Y. July 20, 2018) (finding allegations of wrongdoing by named

17

defendants surrounding pat frisks and the refusal to return personal property "wholly

unrelated" to claims of excessive force based on an isolated event that occurred roughly

three months earlier, and denying request for injunctive relief based on unrelated events).

Moreover, the alleged staff misconduct consists of defendant Menard allegedly

pushing plaintiff on September 28, 2023, and other corrections officials "colliding" with him

during escorts and applying pressure to his handcuffs and restraints. Dkt. No. 23 at 2-3; Dkt.

No. 72 at 4-5. As this Court recently noted in Bradshaw v. Annucci I -- wherein plaintiff

sought the exact same injunctive relief based on much of this same conduct -- "plaintiff's

speculation regarding his risk of future harm . . . based on what amounts to, at most,

unsubstantiated allegations of harassment, falls far short of a substantial showing that

certain, imminent, and irreparable harm will occur in the absence of the injunctive relief he

seeks." See Bradshaw v. Annucci I, Dkt. No. 176 at 6-7 (collecting cases).

Finally, insofar as plaintiff seeks injunctive relief prohibiting his placement in a double-

bunk cell, the Court finds it significant that plaintiff's last submission seeking injunctive relief

related to his housing is dated January 8, 2023, yet he does not indicate in that filing where

he has been housed since December 6, 2023, or the outcome or status of any investigation

related to grievances challenging a double-bunk assignment. See generally, Dkt. No. 72.13

In any event, defendants have introduced evidence showing that on October 20, 2023,

defendant Gravlin performed a risk assessment in accordance with the applicable DOCCS

13 It appears from documents attached to the Third Preliminary Injunction Motion that plaintiff was sent

to Green Haven Correctional Facility on December 11, 2023, returned to Upstate Correctional Facility on

December 21, 2023, was sent back to Green Haven Correctional Facility on January 16, 2024, and returned to

Upstate Correctional Facility on February 8, 2024. See Dkt. No. 74-3 at 22. Plaintiff's reply to his Second

Preliminary Injunction Motion does not indicate where he was housed at Upstate Correctional Facility between

December 6 and December 11, 2023, or between December 21, 2023 and the date those papers were filed. In

addition, none of the grievances attached to the Third Preliminary Injunction Motion complain about plaintiff's

housing assignment since his return to Upstate Correctional Facility on February 8, 2024.

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Directive in approving plaintiff for double-cell placement. See Dkt. No. 62-3, ¶ 11; Dkt. No.

62-4. Plaintiff argues that the risk assessment was flawed, and that a proper assessment

would have led to a conclusion that he is not a candidate for double-celling because he has

been "labeled a snitch" and is "victim prone" based on a "longstanding history of being

assaulted by gang members and other prisoners." Dkt. No. 72, ¶ 99 (emphasis added). In

other words, according to plaintiff, it does not matter who he shares a cell with because any

inmate poses a risk of harm to him, and an injunction prohibiting officials at Upstate

Correctional Facility from double-celling plaintiff with anyone is the only way to remedy this

ongoing risk.

The Court is unable to accept this sweeping proposition as true for at least three

reasons. First, plaintiff sued several officials from Upstate Correctional Facility in Bradshaw

v. Locke based on allegations that these officials failed to protect him from a serious risk of

harm by placing him in a cell with gang members between June 28, 2018 and March 14,

2019. See Bradshaw v. Locke, Dkt. No. 171 at 6-14 (reciting factual background of the

claims in the case following the close of discovery). Plaintiff's Eighth Amendment claims

against one of the officials in that case -- the Deputy Superintendent of Security -- were

based on allegations that this official was aware, before approving plaintiff for a cell

assignment with two different inmates, that he was victim prone, and that the inmates

approved for double-celling with him were gang members. Bradshaw v. Locke, Dkt. No. 171

at 4, 10-13, 29-33, 38-39; Bradshaw v. Locke, Dkt. No. 126, ¶¶ 38, 47. On January 25, 2024,

a jury returned a verdict in favor of the defendants on all of plaintiff's claims, including the

aforementioned Eighth Amendment claims. Bradshaw v. Locke, Dkt. No. 232.

Second, plaintiff introduced evidence in Bradshaw v Locke that on two separate

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occasions he was housed at Upstate Correctional Facility with inmates who did not present a

risk of harm to him. See Bradshaw v Locke, Dkt. No. 148 at 15, ¶¶ 11-16; Dkt. No. 140-10 at

22-23, 74-77; Dkt. No. 126, ¶¶ 28-30. Plaintiff also testified in that case that when he first

arrived at Upstate Correctional Facility, he informed staff that he believed he faced a risk of

harm if he was double-celled with "a prisoner who is a gang member, particularly Bloods[.]"

Bradshaw v Locke, 140-10 at 31-32. In other words, the record in Bradshaw v Locke

presented by plaintiff did not even categorize his perceived risk of harm to be as broad as he

is currently categorizing it.

Third, according to DOCCS Directive #4040 § 701.3 (i), once an inmate submits a

grievance regarding a complaint of sexual abuse, as plaintiff apparently did in this case in

November, 2023,14 the Inmate Grievance Process Supervisor must report the complaint to

the facility Watch Commander "for further handling in accordance with Departmental

policies." DOCCS Directive #4027A(I). This Directive also requires that all sexual abuse

allegations be investigated. See DOCCS Directive #4027A(V)(I).15

In addition, according to DOCCS Directive #4948, following an assessment conducted

pursuant to Directive #4027A, an inmate who is deemed to be "at high risk for sexual

victimization" may be placed in involuntary protective custody if he does not accept admission

into protective custody status. See DOCCS Directive #4948(III)(C). DOCCS Directive #4948

14 See Dkt. No. 72-1 at 41-42.

15 This Directive further indicates that the Deputy Superintendent of Security for each facility must

maintain "a bound and numbered 'Report of Sexual Victimization Logbook'" that lists "each report of sexual

victimization or related conduct . . . that occurs." DOCCS Directive #4027A(V)(D)(1). Each logbook entry must

include various information obtained during the investigation into the sexual abuse allegations, and on a monthly

basis, each correctional facility is required to submit "a chronological listing of each report of sexual victimization"

for review by the Superintendent, who must then forward the monthly report to the Associate Commissioner for

the Prison Rape Elimination Act, with a copy to the Deputy Commissioner for Correctional Facilities. DOCCS

Directive #4027A(V)(D)(3), (E).

20

also allows an inmate to request voluntary protective custody if he believes he is in danger --

as plaintiff claims he did in October and November, 2023 -- and requires any such request to

be "investigate[d]" by an assigned employee, who must then provide a report to the

Superintendent or his designee for a final determination. See Section IV.16

In light of the aforementioned Directives, any request for protective custody or

grievance related to sexual abuse should have been investigated.17 However, none of the

documents attached to plaintiff's motion papers include (1) a completed protective custody

request form, (2) a grievance based on the refusal of any corrections officials to complete the

request form and investigate the request, (3) a grievance based on the denial of a protective

custody request, or (4) a response to a grievance related to a protective custody request or

complaint of sexual abuse.18 Plaintiff also does not offer any explanation as to the reason(s)

why his protective custody requests were denied; he simply says they were denied.

In the event plaintiff's protective custody requests and/or sexual abuse allegations

were investigated and a determination was made that plaintiff's allegations were unfounded

and/or that he may still be housed with other inmates, the factual basis for such a

determination would seemingly be entitled to some weight. See Meachum v. Fano, 427 U.S.

215, 229 (1976) (noting that "federal courts do not sit to supervise state prisons, the

16 The employee assigned to investigate the request must complete Form #2183, entitled "Voluntary

Protective Custody Status Consideration Form[.]" Id.

17 Plaintiff states in his reply declaration that (1) he requested protective custody after he was allegedly

assaulted by other inmates on September 28 and 29, 2023, and his request was denied, (2) he requested

protective custody again at the end of October, 2023, and that request was denied, and (3) a non-party

corrections sergeant "appeared" at his cell on October 24, 2023, to "mock and harass" him for submitting a

request for protection to the Office of Special Investigation. Dkt. No. 72, ¶¶ 50, 53, 55-57, 68-69.

18 Although it appears plaintiff filed a grievance in November, 2023, wherein he complained about being

sexually abused, see Dkt. No. 72-1 at 41-42, plaintiff has not indicated whether an investigation was conducted

related to his abuse allegations, or what the result was, if anything.

21

administration of which is [of] acute interest to the States"). In the event no investigation was

undertaken, it is unclear why plaintiff would not have grieved the lack of an investigation.

Simply put, plaintiff has failed to establish that housing him in a double-cell with any

other inmate subjects him to a serious risk of physical harm, which was (and is) known to one

or more of the named defendants on (and after) September 28, 2023. Thus, plaintiff has

failed to make a clear showing that he is entitled to an injunction prohibiting officials at

Upstate Correctional Facility from placing him in a double-cell with anyone.

The Court will add only that there is no evidence in the current record that plaintiff is

likely to be housed with any of the inmates who allegedly attacked him following his return to

Upstate Correctional Facility on September 28, 2023. In addition, insofar as plaintiff

generically contends that inmates who are gang members present a risk of harm to him, it is

unclear why plaintiff believes that this risk of harm only exists at Upstate Correctional Facility,

in a shared cell or during programming.19

For these reasons, plaintiff's Second Preliminary Injunction Motion is denied.

D. Third Preliminary Injunction Motion

1. Overview of the Motion

The Third Preliminary Injunction Motion seeks an order directing defendants Annucci,

Uhler, Stickney, Gravlin, Veneske, and their successors to (1) provide plaintiff with an Inmate

Rehabilitation Plan ("IRP") with a projected date of completion and discharge from the

Residential Rehabilitation Unit ("RRU") by his next 60 day periodic review, or otherwise

discharge him from the RRU by his next periodic review, (2) specify in writing what is required

19 Plaintiff has also not offered any factual support for his conclusory statements that five out of the six

inmates who allegedly attacked him between September 28 and November 11, 2023, were gang members.

Indeed, it is entirely unclear how plaintiff would have this information.

22

for plaintiff to be discharged by his next periodic review, (3) offer at least seven hours of out

of cell programming, including one hour of congregate recreation, (4) provide him weekly

phone calls and daily tablet services and not deprive him such as a means of retaliation, and

(5) designate him protective custody status to protect him from known and unknown enemies,

and/or transfer him to a facility where he may be safely and appropriately programmed per

DOCCS policy. See Dkt. No. 74.

According to plaintiff, he is entitled to an IRP, which is necessary for him to obtain an

early discharge from the RRU, and is also entitled to certain other privileges pursuant to New

York Correction Law § 137. See generally, Dkt. No. 74-1. Plaintiff also states that he faces a

risk of harm if he participates in programming at Upstate Correctional Facility, which is why

he has refused to participate in programming (and wishes to be transferred to another

facility). Id.

Defendants have opposed plaintiff's motion on the grounds that (1) the Court lacks

personal jurisdiction to enjoin the actions of unidentified, non-party individuals, (2) an "obey

the law" injunction is not legally available, (3) plaintiff has failed to establish that he will suffer

irreparable harm if the requested relief is not granted, and (4) plaintiff has not shown that the

allegations in his motion are related to the underlying claims that remain in this case. See

Dkt. No. 75. The Court agrees.

As an initial matter, generally speaking, the claims that remain in this action relate to

alleged use-of-force incidents involving certain corrections officials, the failure of certain

officials to protect plaintiff from a risk of harm presented by other inmates, the propriety of

disciplinary sanctions imposed against plaintiff, and the conditions of his restrictive

confinement. See July 2023 Order. While Eighth Amendment claims remain in this action

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related to plaintiff's confinement in the RRU, there is no claim in this action related to officials

engaging in alleged misconduct that prevented plaintiff from participating in programming. In

addition, the alleged wrongdoing identified in plaintiff's motion papers began more than six

months after the complaint in this action was filed, and leading up to these events, plaintiff

was not incarcerated at Upstate Correctional Facility. In other words, the basis for the

injunctive relief plaintiff seeks bears no relationship to the underlying claims that remain in

this action.20

Moreover, plaintiff has introduced evidence showing that an IRP was developed for

him sometime after October 12, 2023. See Dkt. No. 74-3 at 22. It also appears that the

privileges plaintiff seeks, along with his opportunity for early discharge from the RRU, is

directly tied to his participation in programming. Id. at 18, 22, 27. Plaintiff, however, has

failed to credibly explain why he believes he is likely to be harmed if he participates in

programming at Upstate Correctional Facility, but not harmed during congregate recreation,

or during his participation in programming at another facility, which are among the types of

relief he seeks. Simply put, plaintiff's belief that he faces a risk of harm if he participates in

programming at Upstate Correctional Facility appears to be entirely speculative, and, as set

forth above, a party cannot rely on speculation to secure injunctive relief. See Lyons, 461

U.S. at 111-12.

For these reasons, the Third Preliminary Injunction Motion is denied.

20 Insofar as plaintiff contends that DOCCS officials have violated New York Correction Law § 137 by

not affording him a "meaningful periodic review" of his RRU confinement, a violation of state law is not, by itself,

a basis for injunctive relief in this Section 1983 action. See Handberry v. Thompson, 446 F.3d 335, 346 (2d Cir.

2006) (holding that 18 U.S.C. § 3626 "clearly prohibits a federal court from issuing preventive relief based

entirely upon state-law claims" and therefore a district court is "not permitted to order prospective relief to remedy

an asserted violation of state law only").

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IV. FUTURE FILINGS

Defendants ask the Court to enjoin plaintiff from filing further motions in this case

without court approval. See Dkt. No. 62-10 at 21-23. Plaintiff opposes the request on the

grounds that (1) he has not filed any pleadings in the Northern District of New York that have

been dismissed as without merit or frivolous, or for the purpose of harassment, (2) he "now is

aware of the proper filing procedures as to motion practice[" and (3) "the Court's instruction

and warnings relating to any improper filing is sufficient" to prevent future improper filings.

See Dkt. No. 72-1 at 14.

This Court has devoted significant resources to plaintiff's filings over the years, which

include dozens of non-meritorious requests for injunctive relief. Before plaintiff initiated this

action, he had been repeatedly cautioned against filing overlapping requests for injunctive

relief in more than one of his pending cases, and was well-aware that requests for injunctive

relief must bear some relationship to the underlying claims in his pleading. Nonetheless, at

the same time that he submitted the Second Preliminary Injunction Motion, he filed a motion

for injunctive relief in Bradshaw v. Annucci I, based on the exact same alleged wrongdoing,21

and thereafter filed the Third Preliminary Injunction Motion based on alleged wrongdoing that

bears no relationship to the remaining claims in this case. Plaintiff has also been told

numerous times that he cannot use his lawsuits as an end-run around the administrative

process within DOCCS, yet he continues to do so.

In short, the Court has no reason to believe that plaintiff will discontinue his habit of

vexatious and unduly burdensome filings in the absence of some sort of restriction.

Accordingly, and as this Court recently ruled in denying plaintiff's most recent request for

21 See Bradshaw v. Annucci I, Dkt. No. 176.

25

injunctive relief in Bradshaw v. Annucci I, plaintiff is advised that in the event he files another

unsubstantiated motion for injunctive relief that is denied for one or more reasons previously

addressed by this Court, defendants may request costs and expenses associated with

opposing the motion, and renew their current request for a filing restriction. See Shepherd v.

Annucci, 921 F.3d 89, 97 (2d Cir. 2019) (recognizing the district court's "inherent power to

supervise and control its own proceedings and to sanction counsel or a litigant for bad-faith

conduct" following "adequate notice and an opportunity to be heard" (internal quotation marks

and citations omitted)).

V. STAY REQUEST

Plaintiff's Stay Request seeks a stay of his deadline to submit an amended complaint

based on his lack of access to his "legal papers[.]" See Stay Request.

As an initial matter, plaintiff has filed several exhibits with the motion papers that have

been submitted since the Stay Request was made. Thus, it appears that the issue that

formed the basis for the request has been resolved. Furthermore, because defendants have

yet to answer the complaint, the Court has yet to issue a Mandatory Pretrial Discovery and

Scheduling Order, which will, among other things, set a deadline for amended pleadings.

For these reasons, the Stay Request is denied as unnecessary.

VI. CONCLUSION

WHEREFORE, it is hereby

ORDERED that defendants' motion to revoke plaintiff's IFP status (Dkt. No. 62) and

conditionally dismiss the complaint is DENIED as set forth above; and it is further

ORDERED that plaintiff's Second Preliminary Injunction Motion (Dkt. No. 23) is

DENIED as set forth above; and it is further

26

ORDERED that plaintiff's Third Preliminary Injunction Motion (Dkt. No. 74) is DENIED

as set forth above; and it is further

ORDERED that plaintiff's Stay Request (Dkt. No. 29) is DENIED as set forth above;

and it is further

ORDERED that defendants shall file a response to the complaint within thirty (30) days

of this Decision and Order; and it is further

ORDERED that the Clerk serve a copy of this Decision and Order on the parties.

IT IS SO ORDERED.

Dated: April 24, 2024 [We iH Degg yok

Albany, NY Mae A. D’Agosting’/

U.S. District Judge

27