Tolbert v. Koenigsmann et al

Filing 87

DECISION AND ORDER: ORDERED, that Plaintiff's Motion (Dkt. No. 80 ) for preliminary injunctive relief is DENIED. Signed by Senior Judge Lawrence E. Kahn on 12/4/15. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DEMERIS TOLBERT,
Plaintiff,
-against-

9:13-cv-1577 (LEK/DEP)

CARL J. KOENIGSMANN, et al.,
Defendants.

DECISION and ORDER
I.

INTRODUCTION
This action was commenced by pro se Plaintiff Demeris Tolbert (“Plaintiff”) in December

2013, seeking relief for the alleged violation of his constitutional rights during his confinement at
Upstate Correctional Facility (“Upstate C.F.”). Dkt. No. 1 (“Complaint”). Upon review of the
Complaint in accordance with 28 U.S.C. §§ 1915(e) and 1915A, the Court concluded that Plaintiff’s
medical care claims against all Defendants and his retaliation claim against Defendant R. Holmes
(“Holmes”) survived sua sponte review and required a response. Dkt. No. 10. An Answer to the
Complaint was filed on behalf of Defendants on October 21, 2014. Dkt. No. 33. On October 22,
2014, United States Magistrate Judge David E. Peebles issued a Mandatory Pretrial Discovery and
Scheduling Order. Dkt. No. 35. In March 2015, Plaintiff filed a Motion for summary judgment.
Dkt. No. 47. In July 2015, Defendants filed a Cross-Motion seeking summary judgment in their
favor. Dkt. No. 67.1 Presently before this Court is a Motion from Plaintiff seeking preliminary
injunctive relief. Dkt. No. 80 (“Motion”).

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Both Motions have been referred to Magistrate Judge David E. Peebles for review and
issuance of a report and recommendation.

II.

DISCUSSION
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., 409 F.3d 506, 510 (2d Cir. 2005) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972
(1997)). The standard a court must utilize in considering whether to grant a request for injunctive
relief is well settled in this Circuit. Citigroup Global Mkts., Inc. v. VCG Special Opportunities
Master Fund Ltd., 598 F.3d 30, 35, 38 (2d Cir. 2010). To prevail on a motion for preliminary
injunctive relief, a plaintiff must demonstrate both irreparable harm and either a substantial
likelihood of success on the merits of the claim or sufficiently serious questions going to the merits
and a balance of hardships tipping decidedly in his favor. Id. at 35; see also Cacchillo v. Insmed,
Inc., 638 F.3d 401, 405-06 (2d Cir. 2011). However, when the moving party seeks a mandatory
preliminary injunction that alters the status quo by commanding a positive act, the burden is “even
higher.” Cacchillo, 638 F.3d at 405-06; see also Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996).
Thus, 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.’” Citigroup, 598 F.3d at 35 n.4.2
“A showing of irreparable harm is ‘the single most important prerequisite for the issuance of
a preliminary injunction.’” Faiveley Transport Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d

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Under the Prison Litigation Reform Act, preliminary injunctive relief in any civil action
with respect to prison conditions must be narrowly drawn, extend no further than necessary to
correct the harm, and be the least intrusive means necessary to correct that harm. 18 U.S.C.
§ 3626(a)(2). In considering an application for prospective relief, the Court is required to give
substantial weight to any adverse impact such relief may have on public safety or on the operation of
the criminal justice system. Id. § 3626(a)(1)(A).
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Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir. 1999)). Speculative, remote
or future injury is not the province of injunctive relief. City of 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 they 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.” Faiveley, 559 F.3d at 118.
Plaintiff complains that he is unable to participate in outdoor recreation because his medical
boots were improperly confiscated in April 2015. See Mot. at 7-11. Plaintiff also complains that in
September 2015, his pain medication was improperly changed from pill to liquid form and that he
has been subjected to excessive unwarranted blood tests to determine the levels of neurontin in his
blood. Id. at 14-17.3 According to Plaintiff, these actions began when AAG Latino visited Upstate
C.F. to take his deposition in this case. Id. at 9. Plaintiff contends that he is being retaliated against.
Id. at 9-16. Plaintiff does not identify the individuals responsible for the alleged wrongful conduct.
In addition to seeking redress for these alleged acts of wrongdoing, Plaintiff seeks an order from the
Court directing that he be reevaluated for physical therapy, provided with a knee brace, and sent to
an outside pain management clinic for evaluation. Id. at 18-21.
Upon review, and with due regard for Plaintiff’s status as a pro se litigant, the Court finds
that his Motion must be denied. As noted, Plaintiff does not allege that Defendants were personally

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Plaintiff alleges that the liquid form causes him to experience adverse side effects. Mot. at
18. Plaintiff’s pain medication has been changed from pill to liquid form in the past (presumably for
security reasons). Id. at 4-6.
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involved in the misconduct complained of in his Motion.4 Except in limited circumstances not
relevant here, a court may not order injunctive relief as to non-parties to an action. See FED. R. CIV.
P. 65(d) (“Every order granting an injunction . . . binds only . . . the parties . . . .”); United States v.
Regan, 858 F.2d 115, 120 (2d Cir. 1988); Slacks v. Gray, No. 07-CV-0510, 2008 WL 2522075, at
*1 n.1 (N.D.N.Y. June 25, 2008). Thus, even assuming that Plaintiff has demonstrated that he faces
irreparable harm from the alleged misconduct by unidentified staff at Upstate C.F. (and the Court
makes no such finding), an injunction regarding that conduct may not properly be directed at
Defendants. The Court also finds that Plaintiff has not supported his Motion with evidence
sufficient to make a “clear showing” that he is entitled to the relief requested, or that “extreme or
very serious damage will result from a denial of preliminary relief.” Citigroup, 598 F.3d at 35 n.4
(internal quotation marks omitted).
Based upon the foregoing, the extraordinary relief sought by Plaintiff is not available to
remedy the harms alleged. As a result, Plaintiff’s Motion for preliminary injunctive relief is denied.
III.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 80) for preliminary injunctive relief is

DENIED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
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Plaintiff previously sought preliminary injunctive relief regarding his medical care. Dkt.
Nos. 15, 27. In a Decision and Order filed February 5, 2015, Plaintiff’s Motions were denied
because Plaintiff had not made the showing required for the issuance of the mandatory relief
requested. Dkt. No. 44. Plaintiff sought reconsideration of that decision, see Dkt. No. 45, but
withdrew that Motion in May 2015 after being assigned a new healthcare provider. See Dkt. No. 54
at 1-2 (advising that Defendants “are (no longer) a part of Plaintiff’s healthcare providers here at
Upstate” and “[i]n addition most of the defendants are (no longer) employed here at Upstate”).
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parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

December 04, 2015
Albany, New York

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