Gee v. Annucci et al

Filing 30

DECISION AND ORDER: ORDERED that plaintiff's motion for preliminary injunctive relief (Dkt. No. 24 ) is DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 2/8/18. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CARL GEE,
Plaintiff,

9:17-CV-0009
(MAD/ATB)

v.
LT. BROWN,
Defendant.

APPEARANCES:

OF COUNSEL:

CARL GEE
98-B-1658
Plaintiff, pro se
Cape Vincent Correctional Facility
P.O. Box 739
Cape Vincent, NY 13618
HON. ERIC T. SCHNEIDERMAN
New York Attorney General
Attorney for Defendant
The Capitol
Albany, NY 12224

OMAR J. SIDDIQI, ESQ.
Ass't Attorney General

MAE A. D'AGOSTINO
United States District Judge
DECISION and ORDER
I.

INTRODUCTION
Pro se plaintiff Carl Gee commenced this civil rights action asserting claims arising

during his confinement at Auburn Correctional Facility ("Auburn C.F."). See Dkt. No. 1.1
Upon initial review of the complaint in accordance with 28 U.S.C. § 1915A, defendant Brown

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Plaintiff paid the filing fee in full at the outset of this action. Plaintiff subsequently filed an application
for in forma pauperis status which was granted. Dkt. No. 6 at 3.

was directed to respond to plaintiff's Fourteenth Amendment due process claim against him.
Dkt. No. 2 at 6.2
Defendant Brown answered the amended complaint on June 8, 2017. Dkt. No. 13.3 In
accordance with the Mandatory Pretrial Discovery and Scheduling Order, the discovery
completion deadline is February 12, 2018; dispositive motions, if any, are due March 29,
2018. Dkt. Nos. 14, 26.
Plaintiff has filed a letter motion seeking preliminary injunctive relief which is currently
before the Court for consideration. Dkt. No. 24.
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
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Plaintiff's remaining claims were dismissed without prejudice for failure to state a claim. February
Order at 7-11.
3
Plaintiff filed an amended complaint as of right setting forth his claims against Lt. Brown. Dkt. No. 5.
The amended complaint is the operative pleading in this action. See Dkt. No. 6 at 2-3.

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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).4
"'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 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. 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 [he or
she] 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 (internal citation and quotation marks omitted).
In his motion, plaintiff alleges that "Defendant's agents (correction officers) and inmate
gang members" have attempted to harm him in retaliation for his having filed this lawsuit.
Dkt. No. 24 at 1. More specifically, plaintiff states that while he was in transit (presumably for
his deposition on this action), inmate gang members at Watertown Correctional Facility
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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. 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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attempted to attack him, but "were too late." Id. Plaintiff further states that during his
confinement at Auburn Correctional Facility, inmate gang members tampered with his food
"on orders of the officers - who said I was a 'rat'." Id. at 2.5 Plaintiff claims that he has been
denied medical testing and screening. Id. Liberally construed, plaintiff anticipates that he will
experience further mistreatment at these facilities when he is next in transit for his deposition,
and requests that it be enjoined. Id.
Defendant opposes plaintiff's motion and urges its denial. Dkt. No. 29. Defendant
argues, among other things, that "any relief sought by Plaintiff is outside the scope of this
action, which is rooted solely in a disciplinary due process claim against Defendant Brown."
Id. at 2.
Upon review, the Court finds that plaintiff's motion must be denied. While the Court
does not condone misconduct of any kind, neither plaintiff's allegations regarding
mistreatment and/or denial of medical care nor his conclusory assertion that his life is in
danger from unidentified individuals who are not parties to this action suffice to show that he
is likely to suffer imminent irreparable harm in the absence of injunctive relief. See e.g.,
Slacks v. Gray, No. 9:07-CV-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).
Moreover, 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) ("[e]very order granting an
injunction . . . binds only . . . the parties . . . ."); United States v. Regan, 858 F.2d 115, 120
(2d Cir. 1988); Slacks, 2008 WL 2522075, at *1 n.1. The Court also finds that plaintiff has

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Plaintiff is currently housed at Cape Vincent Correctional Facility. Dkt. No. 27.

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failed to substantiate any allegations of irreparable harm with evidence in admissible form or
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.
Based upon the foregoing, the Court denies plaintiff's motion for preliminary injunctive
relief.
III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's motion for preliminary injunctive relief (Dkt. No. 24) is

DENIED; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on
the parties.
IT IS SO ORDERED.
Dated: February 8, 2018
Albany, NY

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