Quick v. Annucci et al

Filing 12

DECISION AND ORDER: ORDERED that plaintiff's motion for preliminary injunctive relief (Dkt. No. 11 ) is DENIED. Signed by Chief Judge Glenn T. Suddaby on 10/21/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DESMOND QUICK,
Plaintiff,
v.

9:16-CV-0958
(GTS/CFH)

CHRISTOPHER MILLER,
Defendant.

APPEARANCES:
DESMOND QUICK
03-B-1945
Plaintiff, pro se
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
GLENN T. SUDDABY
Chief United States District Judge
DECISION AND ORDER
Plaintiff Desmond Quick commenced this action pro se and in forma pauperis by filing
a civil rights complaint. Dkt. No. 1 ("Compl."). After review of the complaint in accordance
with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), the Court found that plaintiff's
claims that defendant Miller violated his religious rights under the First Amendment and the
Religious Land Use and Incarcerated Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1, and
denied him equal protection, survived sua sponte review and required a response. Dkt. No.
7.1 All other claims and defendants were dismissed from this action. Id.

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Plaintiff's claims for monetary damages under RLUIPA were dismissed. See id.

Presently before the Court is plaintiff's motion for preliminary injunctive relief. Dkt. No.
11. "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 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
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v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 511 (2d Cir. 2005).
In his complaint, plaintiff alleged that he is a Shi'ite Muslim. Compl. at 4. Plaintiff had
made a request to receive the Cold Alternative Diet but his request was denied because he
was told that the Cold Alternative Diet was limited to inmates of the Jewish faith. Id. In his
motion for preliminary injunctive relief, plaintiff now alleges that he was "compelled to change
his religion to obtain the Cold Alternative Diet" but as a result he is not being allowed to
observe Shi'ite Muslim events. Dkt. No. 11 at 1. Plaintiff requests a court order directing that
he be allowed to observe Shi'ite Muslim events scheduled for the months of October and
November, 2016, and that he receive the religious meals associated with those events. Id.
Even if the Court were to assume that plaintiff has alleged that he may suffer
irreparable harm, plaintiff has failed to demonstrate, with evidence, a likelihood of success on
the merits of his underlying claims, or sufficiently serious questions going to the merits and a
balance of hardships tipping decidedly in his favor. See Ivy Mar Co. v. C.R. Seasons Ltd.,
907 F. Supp. 547, 561 (E.D.N.Y. 1995) ("[B]are allegations, without more, are insufficient for
the issuance of a preliminary injunction."); Hancock v. Essential Res., Inc., 792 F. Supp. 924,
928 (S.D.N.Y.1992) ("Preliminary injunctive relief cannot rest on mere hypotheticals.").
Additionally, since defendant Miller has not yet answered, and, indeed, has not even been
served, the Court cannot ascertain plaintiff's likelihood of success, or whether he has
otherwise met the standard for issuance of preliminary injunctive relief.
For the foregoing reasons, plaintiff's motion for preliminary injunctive relief (Dkt. No.
11) is denied.

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WHEREFORE, it is hereby
ORDERED that plaintiff's motion for preliminary injunctive relief (Dkt. No. 11) is
DENIED; and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.
IT IS SO ORDERED.
Dated:

October 21, 2016
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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