Fox v. Lee et al
DECISION & ORDER: Plaintiff's 128 Motion for Preliminary Injunction is DENIED. Signed by Senior Judge Thomas J. McAvoy on 3/6/18. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SUPERINTENDENT LEE, Easter NY
Correctional Facility, et al.,
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
Before the Court is Plaintiff’s motion for a preliminary injunction. See dkt. # 128.
Plaintiff, a prisoner held by New York State, seeks an order from the Court directing that
he be transferred to long-term protective custody at the Clinton, New York, Correctional
Facility. Defendants have responded to the motion. For the reasons stated below, the
Court will deny the motion.
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’s Amended Complaint names
numerous New York State Correctional Officers and officials, most at Eastern Correctional
Facility in Napanoch, New York. See dkt. # 76. Plaintiff wears his hair “shaved on the
sides and dreadlocked in a Mohawk style.” Id. at ¶ 1. He claims that this “hairstyle is a
religious symbol that signifies wisdom and is protected by the First Amendment[.]” Id.
Defendants, Plaintiff alleges, issued him misbehavior reports and retaliated against him for
refusing an order to cut his hair. Id. at ¶¶ 2-16. Def endants restricted his movement and
limited his privileges in retaliation for his complaints. Id. at ¶¶ 17, 29, 41, 112-113.
Plaintiff also complains of being exposed to extreme cold in his prison cell, and that
Defendants failed to provide him with warm clothing or blankets. Id. at ¶¶ 42-43. He
alleges he has been denied religious materials. Id. at ¶¶ 123, 127. He further complains
of sexual assault by a guard during a search, and continued sexual harassment. Id. at ¶¶
51-52, 63-64. Defendants’ conduct, he claims, also restricted his access to the courts. Id.
at ¶ 98. Plaintiff raises various causes of action related to this alleged conduct.
In the instant motion for a preliminary injunction, Plaintiff contends that that he has
named more than 50 defendants at different correctional facilities in various lawsuits he is
currently pursuing. See dkt. # 128, at 1. “I fear for my life[,]” Plaintiff alleges. Id. He
avers that he has been assaulted at Eastern and Great Meadow s Correctional Facilities.
These assault were in part caused by a lack of cameras at those facilities. Plaintiff fears
that “officers [will] attempt to kill me or beat me [until] my face is disfigured.” Id. at 1-2.
One attack by an officer, Plaintiff claims, nearly left him blind. Id. at 2.
Please protect my being sir, this is not fair. Can you please put in a[n] order to
transfer me immediately to Clinton Correctional Facility APPU or Sullivan, or even
Shawagunk. I wouldn’t ask you if it wasn’t foresee[a]ble. Please sir, and can you
make the order for my transfer immediate pleas.
Id. at 3. Defendants have responded to the motion.
Plaintiff requests that the Court issue a preliminary injunction directing the New
York Department of Corrections and Community Supervision (“DOCCS”) to transfer him.
“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. 1985)).
Defendants contend that Plaintiff has not alleged that he will suffer irreparable harm
if he is not transferred to a new housing unit, nor has he demonstrated a likelihood of
success on the merits. Defendants contend that Plaintiff points only to past conduct and
does not point to any continuing violation of a right, which fails to establish either
irreparable harm or a likelihood of success on the merits.
The Court will deny Plaintiff’s motion. Plaintiff has not made a clear showing of
irreparable harm, even accepting as true all of the facts alleged in his motion, and an
evidentiary hearing on this matter is unnecessary. Proof of irreparable harm requires a
showing that “the injury [plaintiff] will suffer is likely and imminent, not remote or
speculative, and that such injury is not capable or being fully remedied by money
damages.” NAACP v. Town of E. Haven, 70 F.3d 219, 224 (2d Cir. 1995). Here, the
injury Plaintiff claims is his fear that he will be beat by guards in retaliation for his filing of
claims against them. He claims he has been beaten for such filings before. As to past
beatings, those incidents can surely be remedied by money damages. Moreover,
Plaintiff’s prediction that he will be beaten for filing claims against the prisons and
Defendants is pure speculation, and the Court cannot alter the present status q uo and
order Plaintiff to be housed in a different prison based on such speculation. Even if
Plaintiff did suffer beatings, such injuries are capable of being remedied by money
damages. As a general rule, “an injunction is not available to remedy a loss that may be
remedied by an award of monetary damages.” Chemical Bank v. Haseotes, 13 F.3d 569,
573 (2d Cir. 1994). As such, Plaintiff has not demonstrated irreparable harm.
The Court notes that, while Plaintiff could show irreparable harm if he could
demonstrate the violation of a constitutional right, Mitchell v. Cuomo, 748 F.2d 804, 806
(2d Cir. 1984), he cannot show such a violation in this instance. Plaintiff’s request is for a
court order that he be housed in a particular f acility to prevent him from being attacked by
guards unhappy with the lawsuits he has filed. 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.
For the reasons stated above, the Plaintiff’s motion for a preliminary injunction, dkt.
# 128, is hereby DENIED.
IT IS SO ORDERED
DATED:March 6, 2018
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