Johnson v. Connolly et al, No. 9:2007cv01237 - Document 81 (N.D.N.Y 2010)
Court Description: DECISION AND ORDER denying Plaintiff's 75 Motion to Vacate the Court's 30 Decision and Order. Signed by Senior Judge Thomas J. McAvoy on 8/19/2010. (amt) [Pltf served via reg. mail]
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Johnson v. Connolly et al Doc. 81 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ JOHNATHAN JOHNSON, Plaintiff, -against- 9:07-CV-1237 (TJM/DEP) B. CONNOLLY, Doctor et al., Defendants. _________________________________________ THOMAS J. McAVOY, Senior United States District Judge DECISION & ORDER Plaintiff filed a motion on March 30, 2010 [dkt. # 75] to vacate the Court s January 30, 2008 Decision and Order [dkt. # 30] that denied Plaintiff a preliminary injunction transferring him from Upstate Correctional Facility to another correctional facility. See 130/08 Dec. & Ord. Plaintiff s motion for the preliminary injunction was based upon his concerns about his safety and his family s safety during visits. See id. The Court denied the motion finding, inter alia, that Plaintiff has failed to establish a likelihood of success on the merits or sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the Plaintiff. Id. p. 10. Plaintiff appealed the denial of the preliminary injunction, and subsequently filed another motion for a preliminary injunction seeking, inter alia, the same relief. In a Decision and Order dated August 21, 2008, the Court denied Johnson s 1 Dockets.Justia.com second preliminary injunction. See 8/21/08 Dec. & Ord. [dkt. # 48]. Johnson appealed that decision as well. On November 12, 2009, the Second Circuit Court of Appeals issued a Mandate affirming the Court s January 30, 2008 Decision and Order that denied the first preliminary injunction. See 11/12/09 Mandate [dkt. # 70]. In the Mandate, the Circuit concluded that this Court did not err in denying Johnson s motion for a preliminary injunction because he failed to make the required showing of a clear and substantial likelihood of success on the merits of his Eighth Amendment claim alleging deliberate indifference to his safety. Id. On July 29, 2010, the Second Circuit issued a Mandate affirming the Court s August 21, 2008 Decision and Order. See 7/29/10 Mandate [dkt. # 80]. In affirming the denial of the second preliminary injunction, the Second Circuit found no abuse of discretion because Johnson failed to demonstrate a clear or substantial likelihood of success on the merits of his Eight Amendment claim. Id., p. 3. Defendant s motion for reconsideration of the January 30, 2008 Decision and Order is based upon Magistrate Judge Peebles s Report and Recommendation on Defendants summary judgment motion. There, Judge Peebles recommended that the retaliatory transfer claim against Defendant Burge, asserting that Plaintiff s transfer out of Elmira Correctional Facility and into Upstate Correctional Facility was motivated by Plaintiff s contemplation of a lawsuit regarding a November 13, 2006 incident, be maintained because questions of fact existed as to Burge s involvement in the transfer decision and Burge s motivation if he was involved in the decision. See Rep. Rec. pp. 14-19. Plaintiff asserts that the recommendation to maintain the claim against Burge proves that Plaintiff could not have alerted this Court to the facts now raised for injunctive relief, [permanent] 2 [sic] transferring Plaintiff out of Upstate and into another facility for the safety of both Johnson and his family. Mot. pp. 2-3 (brackets in original). The Court fails to see how the existence of questions of fact impacting whether Burge was involved in Plaintiff s transfer to Upstate Correctional Facility, or Burge s motivation if Burge was involved in the transfer decision, demonstrates a clear or substantial likelihood of success on an Eight Amendment claim asserting that prison officials at Upstate Correctional Facility were deliberately indifferent to Plaintiff s safety. The Court finds no basis to reconsider or vacate the Court s January 30, 2008 Decision and Order, especially in light of the fact that the decision, and a subsequent decision denying the same relief, were affirmed by the Second Circuit. Moreover, the claim against Burge is the sole remaining claim in this case. See 6/25/10 Dec. & Ord. Accordingly, Plaintiff s motion [dkt. # 75] to vacate the Court s January 30, 2008 Decision and Order is DENIED. IT IS SO ORDERED DATED:August 19, 2010 3
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