govinfo:USCOURTS-nynd-9_15-cv-00390-7

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JAVELL FOX,
v. 9:15-CV-390
(TJM-CFH)
SUPERINTENDENT LEE, Eastern NY
Correctional Facility, et al.,
Defendants.
_________________________________________
THOMAS J. McAVOY, 
Senior United States District Judge
DECISION & ORDER
Before the Court are Plaintiff’s appeal of Magistrate Judge Christian F. Hummel’s
decision denying his motion for leave to file an amended complaint and Plaintiff’s motion
for a preliminary injunction.  See dkt. #s 197, 201.  The parties have briefed the issues. 
I. Background
The present action alleges that Defendants have violated Plaintiff’s rights under the
Constitution and Federal law by preventing him from wearing his preferred religious
hairstyle while incarcerated in New York prisons.  Plaintiff alleges that he wears his hair
shaved on the sides and dreadlocked in a Mohawk style, and that this style is a religious
expression protected by the First Amendment.  Defendants, Plaintiff claims, have issued
him misbehavior reports, kept him confined in restrictive custody, and retaliated against
him for complaining about their failure to respect his religious rights.  On May 10, 2017,
the Court approved the parties’ stipulation allowing Plaintiff to continuing wearing his
1
Case 9:15-cv-00390-AMN-ML     Document 212     Filed 11/02/18     Page 1 of 8
preferred hairstyle pending the outcome of this litigation.  See dkt. # 95.  
The parties have litigated the issues extensively in this case.  Plaintiff has filed a
number of motions seeking contempt, preliminary injunctions, summary judgment, and
other relief.   The case has been pending for more than three years, and the parties have
completed discovery.  Despite this extensive history, Plaintiff moved to amend his
Complaint a second time on January 18, 2018.  See dkt. # 142.  Also pending before the
Court is Defendants’ motion for summary judgment, filed on May 21, 2018.  See dkt. #
174.  Magistrate Judge Hummel denied Plaintiff’s motion to amend, and Plaintiff appeals. 
Plaintiff also seeks a preliminary injunction against the Defendants.   The issues are
briefed and the matter ripe for disposition.
II. LEGAL STANDARD
A. Appeal of Magistrate Judge Decision
Plaintiff appeals Magistrate Judge Hummel’s decision denying him leave to amend
his Amended Complaint.  A district court judge reviewing a magistrate judge’s non-
dispositive pretrial order, as is in issue here, may not modify or set aside any part of that
order unless it is clearly erroneous or contrary to law.  Labarge v. Chase Manhattan Bank,
N.A., 1997 U.S. Dist. LEXIS 13803, 1997 WL 5853122, at *1 (N.D.N.Y. Sept. 3, 1997)
(citing 28 U.S.C. § 636(b)(1)); FED. R. CIV. P. 72(a); Mathias v. Jacobs, 167 F.Supp.2d
606, 621-23 (S.D.N.Y. 2001); Dubnoff v. Goldstein, 385 F.2d 717, 721 (2d Cir. 1967)
(court’s decision “not to disqualify himself is ordinarily reviewable only upon appeal from a
final decision on the cause in which the application . . . was filed.”).  Findings are clearly
erroneous when the reviewing court is firmly convinced the lower court decided an issue in
2
Case 9:15-cv-00390-AMN-ML     Document 212     Filed 11/02/18     Page 2 of 8
error.  Lanzo v. City of New York, 1999 U.S. Dist. LEXIS 16569, 1999 WL 1007346, *2-3
(E.D.N.Y. Sept. 21, 1999).  This standard imposes a heavy burden on the objecting party,
and only permits reversal where the district court determines the magistrate judge “abused
his broad discretion over resolution of discovery matters.”  Labarge, 1997 U.S. Dist. LEXIS
13803, 1997 WL 583122 at *1.  
B.  Preliminary Injunction
Plaintiff requests that the Court issue a preliminary injunction directing the New
York Department of Corrections and Community Supervision (“DOCCS”) to transfer him to
long-term protective custody.  “A party seeking a preliminary injunction must demonstrate:
(1) ‘a likelihood of success on the merits or . . . sufficiently serious questions going to the
merits to make them a fair ground for litigation and a balance of hardships tipping
decidedly in the plaintiff’s favor’; (2) a likelihood of ‘irreparable injury in the absence of an
injunction’; (3) the balance of hardships tips in the plaintiff’s favor’; and (4) that the ‘public
interest would not be disserved’ by the issuance of an injunction.”  Benihana, Inc. v.
Benihana of Tokyo, LLC, 784 F.3d 887, 895 (2d Cir. 2015) (quoting Salinger v. Colting,
607 F.3d 68, 79-80 (2d Cir. 2010)).  Plaintiff here seeks a “mandatory injunction,” which
alters the standard.  “The typical preliminary injunction is prohibitory and generally seeks
only to maintain the status quo pending a trial on the merits.”  Tom Doherty Assocs. v.
Saban Entm’t Inc., 60 F.3d 27, 34 (2d Cir. 1995).  When an injunction “alter[s] the status
quo by commanding some positive act,” however, that injunction is “mandatory.”  Id.  Such
an “injunction should issue ‘only upon a clear showing that the moving party is entitled to
relief requested, or where extreme or very serious damage will result from a denial of
preliminary relief.’”  Id. (quoting Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.
3
Case 9:15-cv-00390-AMN-ML     Document 212     Filed 11/02/18     Page 3 of 8
1985)).  
  
III. ANALYSIS
A. Appeal of Magistrate Judge Decision
Plaintiff argues that Magistrate Judge Hummel erred in denying his motion to
amend his Amended Compalint.  Magistrate Judge Hummel concluded that amending the
Complaint would be both futile and unduly prejudicial to some of the proposed defendants. 
See dkt. # 160.  Magistrate Judge Hummel found that amending the Amended Complaint
to include claims for monetary damages under the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1, against one Defendant
would be futile because that act does not permit monetary damages, whether
compensatory or punitive.  Magistrate Judge Hummel also found that the sovereign
immunity of the State of New York made futile any attempts to add as defendants the
State of New York or DOCCS, a State agency.  He also found that Plaintiff had failed to
state any additional claims against Defendants Sgt. Bey and Sgt. Barg for violating of his
Eighth, Fourth, and First Amendment rights.  Magistrate Judge Hummel also rejected
Plaintiff’s effort to add claims against twenty new defendants, finding that Plaintiff failed file
the claims in a timely fashion and that seeking to add the claims three months after the
close of discovery, thirteen months after filing his Amended Complaint and three years
after commencing the action amounted to an inordinate delay that prejudiced the
Defendants.  In any case, Magistrate Judge Hummel found, most of Plaintiff’s proposed
allegations failed to state a claim and would be futile.
4
Case 9:15-cv-00390-AMN-ML     Document 212     Filed 11/02/18     Page 4 of 8
Plaintiff argues that Magistrate Judge Hummel committed clear error in finding that
permitting amendment would be futile and unduly prejudicial.  Having examined the
Magistrate Judge’s decision in detail and the Plaintiff’s arguments, the Court concludes
that Magistrate Judge Hummel’s conclusions were neither clearly erroneous nor contrary
to law.  The Federal Rules of Civil Procedure provide that “leave to amend the pleadings
should be ‘freely give[n] . . . when justice so requires.’” AEP Energy Servs. Gas Holding
Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir. 2010)).  Generally, courts in this
Circuit have permitted “‘a party to amend its pleadings in the absence of a showing by the
nonmovant of prejudice or bad faith.’” Id. (quoting Block v. First Blood Assocs., 988 F.2d
344, 350 (2d. Cir. 1993)).  Still, “motions to amend should generally be denied in instances
of futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, or undue prejudice to the non-moving party.”  Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (quoting Forman v. Davis,
371 U.S. 178, 182 (1962)).  “‘A proposed amendment to a complaint is futile when it could
not withstand a motion to dismiss.’” F5 Capital v. Pappas, 856 F.3d 61, 89 (2d Cir. 2017)
(quoting Balintulo v. Ford Motor Co., 796 F.3d 160, 164-65 (2d Cir. 2015)).  “In gauging
prejudice, [courts] consider, among other factors, whether an amendment would ‘require
the opponent to expend significant additional resources to conduct discovery and prepare
for trial’ or ‘significantly delay the resolution of the dispute.’” Ruotolo v. City of New York,
514 F.3d 184, 192 (2d Cir. 2008) (quoting Block, 988 F.2d at 350).  “Mere delay, however,
absent a showing of bad faith or undue prejudice, does not provide a basis for a district
court to deny the right to amend.’” State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d
843, 856 (2d Cir. 1981)).  Prejudicial delay can occur when “the amendment [comes] on
5
Case 9:15-cv-00390-AMN-ML     Document 212     Filed 11/02/18     Page 5 of 8
the eve of trial and would result in new problems of proof” such as a need for “a great deal
of additional discovery.”  Id. 
The Magistrate Judge relied on both futility and delay and the consequent prejudice
the delay would cause in deciding not to permit another amendment of the Complaint. 
Such decisions were proper.  Plaintiff sought relief–such as punitive damages under the
RLUIPA–which is unavailable under federal law.  See, e.g. Ford v. Palmer, 539 Fed. Appx.
5, 6 n.1 (2d Cir. 2013) (“RLUIPA does not prove a cause of action for damages against
state officials in their official capacities . . . or in their individual capacities.”).  He also
sought to raise claims against parties entitled to sovereign immunity.  See.,e.g., Trotman
v. Palisades Interstate Park Com., 557 F.2d 35, 38 (2d Cir. 1977) (“there is no remedial
power in a federal court to require the payment of funds from a state treasury in a § 1983
action.”).  Plaintiff also failed to plead the sort of conduct which would entitle him to relief
against prison guards, and the Magistrate Judge properly found that amendment to
include that conduct would be futile.  See Decision and Order, dkt. # 160, at 15-20. 
Finally, the Magistrate Judge properly found that an amendment that named a large
number of new parties in a case where discovery had long closed would cause undue
delay and prejudice.  The Court finds no clear error or conclusions contrary to law in such
decisions.   See Ruotolo, 514 F.3d at 192 (amendment improper because of prejudice
when amendment would “require the opponent to expend significant additional resources
to conduct discovery and prepare for trial or significantly delay the resolution of the
dispute.”).  The Court will therefore affirm the Magistrate Judge’s opinion and deny the
appeal. 
6
Case 9:15-cv-00390-AMN-ML     Document 212     Filed 11/02/18     Page 6 of 8
B. Preliminary Injunction
Plaintiff seeks an order from the Court “send[ing]” him to “Clinton A[ssessment and]
P[rogram] P[reparation] Unit” and establishing a “permanent restraining order.”  Plaintiff
would also accept a transfer to Sullivan Correctional Facility.  Plaintiff contends that he
has proven he has sincerely held religious belief and thus demonstrated the merits of his
claim.  He has suffered four years of punishment because of his hairstyle.  These facilities,
he claims, could provide him long-term protective custody, which would protect his “mental
and emotional health,” which is daily under attack.  Plaintiff claims that his present living
conditions leave him subject to “torture.”  Plaintiff contends that he has been “harassed,
threatened, [and] called names” by “correction officials” in his present assignment.  Those
officials “won’t stop until a favorable decision is rendered, as it should be[.]” Plaintiff also
complains that all of his funds have been taken by the prison, preventing him from getting
stamps to alert the media to his mistreatment.  Defendants respond that the Court lacks
the authority to order Plaintiff’s transfer to any particular facility.  Moreover, they point out,
Plaintiff’s right to continue wearing his hair in his preferred religious style has been
addressed by the Court’s order approving the party’s stipulation.
The Court will deny Plaintiff’s motion.  While Plaintiff complains that he has been a
victim of harassment and mistreatment because of his hairstyle, he does not allege that
Defendants have violated the party’s stipulation and forced him to cut his hair.  Read
generously, he argues that Defendants’ past mistreatment has caused him anguish and
suffering which continue.  He needs to be in a facility where he feels more safe as a result
of that past treatment.  If Plaintiff can prove a violation of his rights, he may be able to
obtain damages for Defendants’ alleged misconduct.  The relief he seeks now from the
7
Case 9:15-cv-00390-AMN-ML     Document 212     Filed 11/02/18     Page 7 of 8
Court, however, is unavailable to him.  Plaintiff’s request for a preliminary injunction seeks
a court order directing that he be housed in a particular facility.  A prisoner does not have
any due process right to housing in a particular institution or setting.  Pugliese v. Nelson,
617 F.2d 916, 922 (2d Cir. 1980).  “It is well settled that a prisoner has no constitutional
right to serve a sentence in any particular institution or to be transferred or not transferred
from one facility to another.”  Fisher v. Goord, 981 F.Supp. 140, 176 (W.D.N.Y. 1997)
(citing Olim v. Wakinekona, 461 U.S. 238, 249-50 (1983); Meacham v. Fano, 427 U.S.
215, 225 (1976)).  Plaintiff has thus failed to show a violation of his constitutional rights in
where he is housed, and cannot demand a transfer on that basis.  In short, Plaintiff has
not demonstrated irreparable harm and cannot prevail on his motion for a preliminary
injunction.  The motion will be denied.
IV. CONCLUSION
For the reasons stated above, the Plaintiff’s appeal, dkt. # 197, of Magistrate Judge
Christian F. Hummel’s decision, dkt. # 160, denying Plaintiff’s motion for leave to file a
second amended complaint, is hereby DENIED.  Magistrate Judge Hummel’s decision is 
AFFIRMED.  The Plaintiff’s motion for a preliminary injunction, dkt. # 201, is hereby
DENIED.
IT IS SO ORDERED
DATED:  November 2, 2018
8
Case 9:15-cv-00390-AMN-ML     Document 212     Filed 11/02/18     Page 8 of 8

Passage view · GavelSight