Heyliger v. Trombley et al

Filing 32

DECISION AND ORDER: ORDERED that plaintiff's motion seeking preliminary injunctive relief (Dkt. No. 28 ) is DENIED. Signed by Senior Judge Norman A. Mordue on 3/21/17. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DEREK A. HEYLIGER,
Plaintiff,

9:16-CV-0980
(NAM/TWD)

v.
JAMES TROMBLEY, et al.,
Defendants.

APPEARANCES:

OF COUNSEL:

DEREK A. HEYLIGER
12-B-0269
Plaintiff, pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
HON. ERIC T. SCHNEIDERMAN
New York Attorney General
Attorney for Defendants
The Capitol
Albany, NY 12224

HELENA LYNCH, ESQ.
Ass't Attorney General

NORMAN A. MORDUE, Senior United States District Judge
DECISION and ORDER
I.

INTRODUCTION
This action was brought pro se by plaintiff Derek A. Heyliger in August 2016. Dkt. No.

1. Plaintiff, who is presently confined at Upstate Correctional Facility, asserts claims arising
out of an incident which occurred at Clinton Correctional Facility on December 3, 2013.
Upon review of the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b), Magistrate Judge Thérèse Wiley Dancks concluded that a response to

plaintiff's Eighth Amendment excessive force and failure to intervene claims against
defendants was required. Dkt. No. 7.1
An answer to the complaint was filed on behalf of defendants on December 2, 2016.
Dkt. No. 24. Discovery is ongoing. See Dkt. No. 26 (Mandatory Pretrial Discovery and
Scheduling Order, Dancks, M.J.). Plaintiff recently filed a motion for leave to file an amended
complaint. Dkt. No. 31.2
Presently before the Court is a letter motion from plaintiff seeking preliminary injunctive
relief. Dkt. No. 28.
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. of New York, Inc., 409 F.3d 506, 510 (2d Cir. 2005) (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). "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 preliminary injunction that

1

Plaintiff's in forma pauperis application was granted. Dkt. No. 7 at 3.

2

Plaintiff's motion to amend, which defendants have not opposed, is pending before Magistrate Judge

Dancks.

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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)). 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 Global Mkts., 598
F.3d at 35 n.4 (internal quotation marks omitted).3
In his motion, plaintiff describes a recent encounter he had with defendant C.O.
Trombley, who now works at Upstate Correctional Facility. Dkt. No. 28 at 1-2. Plaintiff states
that C.O. Trombley delivered legal materials plaintiff had requested from the facility law
library to plaintiff's cell. While passing the materials through the feed-up slot in plaintiff's cell
door, C.O. Trombley "smiled at Plaintiff then said 'So when are we going to trial.'" Id. at 1.
Plaintiff contends that it is improper for C.O. Trombley to ask plaintiff legal questions about
this case and to handle plaintiff's legal materials, and asks that C.O. Trombley be
"reprimanded." Id. at 1-2. Plaintiff also claims that he feels intimidated by C.O. Trombley and
requests that he be transferred to a different correctional facility "based on the substantial risk
to his safety at this facility." Id.4
Defendants oppose plaintiff's motion and urge its denial. Dkt. No. 29.
3
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. See 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. See 18 U.S.C. § 3626(a)(1)(A).
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Plaintiff, who was transferred to Upstate C.F. on January 4, 2017, states that this transfer marks the
"second time DOCCS Central Office Administrators returned Plaintiff to an environment which raises a
forewarned and elevated risk to Plaintiff's personal safety." Dkt. No. 28 at 2. The first time was in October 2015,
when plaintiff was transferred to Clinton C.F., where his claims arose. Id.

3

As counsel correctly states, it is the Department of Corrections and Community
Supervision, and not this Court, which determines where plaintiff will be housed during his
period of incarceration. See Dkt. No. 29 at 7; see also Olim v. Wakinekoma, 461 U.S. 238,
248-49 (1983) (inmates have no right to be confined in a particular state or particular prison
within a given state); Montayne v. Haymes, 427 U.S. 236, 243 (1976) (New York state
prisoners have no right to incarceration at a particular prison facility). Plaintiff's desire to be
confined in a different correctional facility, no matter how sincere, is not sufficient to warrant
the requested judicial relief.
In light of his pro se status, the Court has considered whether plaintiff has made a
showing sufficient to warrant the issuance of any form of judicial relief regarding his
confinement at Upstate Correctional Facility and concludes that he has not. In so ruling, the
Court finds that plaintiff has not demonstrated that he is likely to suffer imminent irreparable
harm if the requested relief is not granted. While mistreatment of any kind is not condoned,
plaintiff's allegations regarding C.O. Trombley's conduct do not suffice to plausibly suggest
that plaintiff faces an actual imminent injury from this defendant. Rather, plaintiff alleges only
that "the possibility of retaliatory assault or fabricated misbehavior report infractions" exists.
Dkt. No. 28 at 2. Plaintiff's concern that C.O. Trombley might physically harm or otherwise
mistreat him is purely speculative and, therefore, patently insufficient to make the showing
required for the issuance of preliminary injunctive relief. See e.g., Slacks v. Gray, No. 9:07CV-0501 (NAM/GJD), 2008 WL 2522075, at *1 (N.D.N.Y. June 25, 2008) (allegations of
future injury without more do not establish a real threat of injury).
In addition, plaintiff has failed to submit proof or evidence which demonstrates a
likelihood of succeeding on the merits of his claims or the existence of sufficiently serious
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questions going to the merits of the claims and a balance of hardships tipping decidedly
toward him. See Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992). Plaintiff's allegations,
standing alone, are not sufficient to entitle him to preliminary injunctive relief. 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
Resources, Inc., 792 F. Supp. 924, 928 (S.D.N.Y. 1992) ("Preliminary injunctive relief cannot
rest on mere hypotheticals.").
Based upon the foregoing, plaintiff's motion for preliminary injunctive relief (Dkt. No.
28) is denied.
III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's motion seeking preliminary injunctive relief (Dkt. No. 28) is

DENIED; and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on the parties.
IT IS SO ORDERED.
Dated: March 21, 2017
Syracuse, NY

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