H'Shaka v. Bellnier et al
Filing
41
DECISION AND ORDER denying # 17 Plaintiff's Motion for Preliminary Injunction. Signed by Chief Judge Glenn T. Suddaby on 2/9/18. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
IMHOTEP H’SHAKA,
Plaintiff,
9:17-CV-0108
(GTS/ATB)
v.
JOSEPH BELLNIER,1 Deputy Commissioner for
Correctional Facilities; MAUREEN BOSCO, Former
Director of Central New York Psychiatric Center;
DEBORAH McCULLOCH, Executive Director of
Central New York Psychiatric Center; JOANNE
WALDRON, Clinton Correctional Facility Office of
Mental Health Unit Chief; JOSEPH PORCELLI, Clinton
Correctional Facility Offender Rehabilitation Coordinator;
KEVIN RANDALL, Sergeant; DAVID LUCIA, Acting
Deputy Superintendent of Security; and JUSTIN DELISLE,
Sergeant,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
PRISONERS’ LEGAL SERVICES OF NEW YORK
Counsel for Plaintiff
114 Prospect Street
Ithaca, New York 14850
ALISSA R. HULL, ESQ.
MICHAEL E. CASSIDY, ESQ
STORCH AMINI PC
Co-Counsel for Plaintiff
2 Grand Central Tower
140 East 45th Street, 25th Floor
New York, New York 10017
STEVEN G. STORCH, ESQ.
CARA J. SCHMIDT, ESQ.
JOHN W. BREWER, ESQ.
1
In their opposition memorandum of law, Defendants argue that James O’Gorman
should be automatically substituted for Mr. Bellnier because Mr. Bellnier has retired from
DOCCS and Mr. Gorman currently holds Mr. Bellnier’s former position as Acting Deputy
Commissioner for Correctional Facilities. (Dkt. No. 29, at 4 [Defs.’ Opp’n Mem. of Law].)
Plaintiff acknowledges that substitution of Mr. O’Gorman is proper based on Fed. R. Civ. P.
25(d). (Dkt. No. 33, at 4 n.1 [Pl.’s Reply Mem. of Law].) Mr. O’Gorman shall therefore be
substituted for Mr. Bellnier as a Defendant in this action. The Clerk of the Court is respectfully
directed to amend the caption.
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224-0341
BRUCE J. BOIVIN, ESQ.
MATTHEW P. REED, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently pending before the Court, in this action filed by Imhotep H’Shaka (“Plaintiff”)
against the eight above-captioned employees of the New York State Department of Corrections
and Community Supervision (“DOCCS”), the Central New York Psychiatric Center, and Clinton
Correctional Facility (collectively “Defendants”) under 42 U.S.C. § 1983 and the Eighth and
Fourteenth Amendments of the United States Constitution, is Plaintiff’s motion for an Order
preliminarily enjoining Defendants, pursuant to Fed. R. Civ. P. 65, from keeping Plaintiff in the
Special Housing Unit (“SHU”) under the administrative segregation (“Ad Seg”) program while
his lawsuit proceeds to trial. (Dkt. No. 17.) Defendants have opposed Plaintiff’s motion, and
Plaintiff has replied to Defendants’ opposition. (Dkt. Nos. 29, 33.) For the reasons set forth
below, Plaintiff’s motion for a preliminary injunction is denied.
I.
RELEVANT BACKGROUND
A.
Summary of Plaintiff’s Complaint
Generally, liberally construed, Plaintiff’s Complaint alleges that he has been confined in
SHU (either as a result of disciplinary segregation or Ad Seg) for more than 20 years, which has
caused or exacerbated both mental and physical medical conditions. (Dkt. No. 1, at 5-16.)
More specifically, the Complaint alleges that, as a prisoner kept in SHU under Ad Seg,
Plaintiff faces “conditions of extreme isolation, sensory deprivation, and restricted movement”
2
as well as an absolute denial of work, cultural and social opportunities, severely limited
recreational and religious opportunities, limited access to personal property, extraordinary levels
of surveillance and control, and limited contact with family and loved ones. (Id. at 5-9.) The
Complaint alleges that continuous confinement in such a restricted environment and inadequate
mental health treatment has caused or exacerbated conditions such as anxiety, panic attacks,
physical pain, Vitamin D deficiency, insomnia, and hives. (Id. at 9-16.)
Based on these factual allegations, Plaintiff asserts five claims against Defendants: (1) a
claim of deprivation of the necessities of life and violation of his basic human dignity and right
to be free from cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments; (2) a claim of failure to ensure necessary and appropriate mental health care and
deliberate indifference to Plaintiff’s need for such care in violation of the Eighth and Fourteenth
Amendments; (3) a claim of imposition of disproportionate punishment in violation the Eighth
and Fourteenth Amendments; (4) a claim of deprivation of his liberty interest through indefinite
confinement without meaningful review in violation of Fourteenth Amendment; and (5) a claim
of deprivation of a protected liberty interest by arbitrarily and capriciously denying release from
Ad Seg based on a predetermined outcome in violation of the Fourteenth Amendment. (Id. at
30-34.) Familiarity with the factual allegations supporting these claims in Plaintiff’s Complaint
is assumed in this Decision and Order, which is intended primarily for review by the parties.
As a relief, Plaintiff seeks (1) injunctive and declaratory relief, (2) compensatory and
punitive damages, and (3) reasonable attorneys’ fees and costs. (Id. at 2, 35.)
3
B.
Parties’ Briefing of Plaintiff’s Motion
1.
Plaintiff’s Memorandum of Law-in Chief
Generally, in support of his motion for a preliminary injunction, Plaintiff asserts three
arguments. (Dkt. No. 17, at 6-29 [Pl.’s Mem. of Law].) First, Plaintiff argues that the record
establishes irreparable injury. (Id. at 20-21.) Specifically, Plaintiff argues that the continuing
deprivation of his liberty interest caused by his open-ended confinement in Ad Seg is a per se
irreparable injury, though he argues that he has also shown irreparable injury based on the
worsening conditions of his cell and confinement, and the risk to his psychological and physical
well-being as a result of that continued confinement. (Id.) Plaintiff argues that relief cannot wait
until the outcome of this litigation because the trial is not scheduled until October 2018, more
than ten months from when he filed his motion. (Id. at 21.)
Second, Plaintiff argues that the record establishes a likelihood of success on the fourth
and fifth claims in the Complaint. (Id. at 21-27.) Specifically, Plaintiff argues that there is a
likelihood that he will succeed on showing that the 60-day review process for reviewing
Plaintiff’s continued placement in Ad Seg fails to meet the three requirements outlined in
Proctor v. LeClaire, 846 F.3d 597 (2d Cir. 2017). (Id. at 22-27.) In particular, Plaintiff argues
that the reviews are conducted with a preordained outcome (thus making the reviews
meaningless) and that the rationale for continuing to keep him in Ad Seg is impermissibly based
solely on his past conduct rather than a consideration of his more recent behavioral improvement
(thus making the review process a “charade in the name of prison security to mask indefinite
punishment for past transgressions”). (Id.) Plaintiff also argues that Defendants’ refusal to
consider alternative placements that are less restrictive than SHU but more restrictive than
4
releasing Plaintiff into the general population is further evidence of the meaningless and
arbitrary nature of the review process as applied to Plaintiff. (Id. at 27.) Plaintiff additionally
argues that significant delays in reviewing and providing copies of the reviews to Plaintiff
further supports that Plaintiff has a likelihood of success on the merits of his claims. (Id.)
Third, and last, Plaintiff argues that an injunction would serve the public interest, and that
the balance of equities favors Plaintiff. (Id. at 28-29.) Specifically, Plaintiff argues that
releasing him from Ad Seg (and thus SHU) would greatly eliminate the hardships that have been
imposed on him without due process. (Id.) Plaintiff further argues that placement in the Close
Supervision Unit or a step-down program would address DOCCS’ concerns that he would be
dangerous if re-introduced into the general population. (Id.)
2.
Defendants’ Opposition Memorandum of Law
Generally, in opposition to Plaintiff’s motion, Defendants assert three arguments. (Dkt.
No. 29, at 10-20 [Defs.’ Opp’n Mem. of Law].) First, Defendants argue that Plaintiff cannot
show irreparable harm because the three-tiered review used by DOCCS meets the Proctor
standard and because Plaintiff cannot show that his constitutional rights are violated by his
confinement. (Id. at 10.) Defendants also argue that Plaintiff cannot show irreparable harm
based on his physical or mental health because he has never been diagnosed with a serious
mental illness and his skin irritation has typically resolved with ordinary Benadryl. (Id. at 11.)
Second, Defendants argue that Plaintiff has not demonstrated a likelihood of success on
the merits, though Defendants acknowledge that Plaintiff has an established liberty interest in
avoiding lengthy restrictive confinement. (Id. at 11-19.) Specifically, Defendants argue that
Plaintiff cannot show that the 60-day review process was constitutionally deficient because
5
DOCCS procedure complies with the requirements outlined in Proctor. (Id. at 12-19.)
Defendant argues that any delays in providing the review reports to Plaintiff did not violate a
federal right, that Proctor did not preclude consideration of past events when determining
retention in Ad Seg, and that the affidavits submitted with Defendants’ opposition memorandum
of law show that there were many considerations in addition to Plaintiff’s past violent behavior
to justify keeping him in Ad Seg. (Id. at 14-18.) Defendants also argue that the fact that no
prisoner has ever been recommended for release from Ad Seg up to this time does not establish
that the reviews are based on preordained conclusions. (Id. at 19.)
Third, and last, Defendants argue that the balance of the equities tips in Defendants’
favor due to the high priority of DOCCS’ interest in institutional safety and security. (Id. at 20.)
3.
Plaintiff’s Reply Memorandum of Law
Generally, in reply to Defendants’ opposition, Plaintiff asserts four arguments. (Dkt. No.
33, at 8-13 [Pl.’s Reply Mem. of Law].) First, Plaintiff argues that his request for an injunction
would not require DOCCS to release him directly into the general population, but rather into a
step-down program or other similar program with a level of restrictions more than the general
population but less than those he currently faces from Ad Seg in SHU. (Id. at 8-9.) Plaintiff
argues that this compromise level of relief is encompassed by the Complaint’s demand for
“injunctive relief ordering defendants to ameliorate the conditions under which [Plaintiff] is
held.” (Id. at 9.)
Second, Plaintiff reiterates his argument that he has shown an irreparable injury, arguing
also that Defendants did not address his initial argument but rather confused the irreparable harm
and likelihood of success prongs when making their argument in opposition. (Id. at 9-10.)
6
Third, Plaintiff argues that, when opposing his argument regarding likelihood of success,
Defendants ignore the factual parallels between this case and Proctor. (Id. at 10.) Plaintiff
argues that the use of Plaintiff’s current good behavior as a justification to keep him in Ad Seg is
circular logic that was rejected by the Second Circuit in Proctor. (Id. at 11-12.) Plaintiff also
argues that the DOCCS process is not sufficient because they rely on “gut feelings” rather than
any objective criteria. (Id. at 12-13.)
Fourth, and last, Plaintiff argues that the balance of equities favors him because
deference is not warranted to DOCCS’ concerns about safety where, as here, the review process
is a sham proceeding with a preordained outcome that violates Plaintiff’s due process rights. (Id.
at 13.)
II.
GOVERNING LEGAL STANDARD
“A preliminary injunction is an ‘extraordinary and drastic remedy’ . . . ; it is never
awarded as of right . . . .” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (internal citations
omitted). Rather, generally, in the Second Circuit, a party seeking a preliminary injunction must
establish the following three elements: (1) that the party will likely experience irreparable harm
if the preliminary injunction is not issued; (2) that there is either (a) a likelihood of success on
the merits and a balance of equities tipping in the party’s favor, or (b) a sufficiently serious
question as to the merits of the case to make it a fair ground for litigation and a balance of
hardships tipping decidedly in the party’s favor; and (3) that the preliminary injunction is in the
public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (reciting
standard limited to first part of second above-stated element); accord Glossip v. Gross, 135 S.
Ct. 2726, 2736-37 (2015); see also Am. Civil Liberties Union v. Clapper, 785 F.3d 787, 825 (2d
7
Cir. 2015) (reciting standard including second part of above-stated element); Citigroup Global
Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir. 2010)
(holding that “our venerable standard for assessing a movant's probability of success on the
merits remains valid [after the Supreme Court’s decision in Winter]”).
With regard to the first element, “irreparable harm” is “certain and imminent harm for
which a monetary award does not adequately compensate.” Wisdom Import Sales Co. v. Labatt
Brewing Co., 339 F.3d 101, 113 (2d Cir. 2003).
With regard to the second element, “likelihood of success” requires a demonstration of a
“better than fifty percent” probability of success. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025
(2d Cir. 1985), disapproved on other grounds, O'Lone v. Estate of Shabazz, 482 U.S. 342, 349,
n.2 (1987). “A balance of equities tipping in favor of the party requesting a preliminary
injunction” means a balance of the hardships against the benefits. See, e.g., Ligon v. City of New
York, 925 F. Supp. 2d 478, 539 (S.D.N.Y. 2013) (characterizing the balancing “hardship
imposed on one party” and “benefit to the other” as a “balanc[ing] [of] the equities”); Jones v.
Nat’l Conference of Bar Examiners, 801 F. Supp. 2d 270, 291 (D. Vt. 2011) (considering the
harm to plaintiff and any “countervailing benefit” to plaintiff in balancing the equities);
Smithkline Beecham Consumer Healthcare, L.P. v. Watson Pharm., Inc., 99-CV-9214, 1999 WL
34981557, at *4-5 (S.D.N.Y. Sept. 13, 1999) (considering the harm to defendant and the
“benefit” to consumers in balancing the equities); Arthur v. Assoc. Musicians of Greater New
York, 278 F. Supp. 400, 404 (S.D.N.Y. 1968) (characterizing “balancing the equities” as
“requiring plaintiffs to show that the benefit to them if an injunction issues will outweigh the
harm to other parties”); Rosenstiel v. Rosenstiel, 278 F. Supp. 794, 801-02 (S.D.N.Y.1967)
8
(explaining that, in order to “balance the equities,” the court “will consider the hardship to the
plaintiff . . . , the benefit to [the] plaintiff . . . , and the relative hardship to which a defendant will
be subjected”) [internal quotation marks omitted].2
“A sufficiently serious question as to the merits of the case to make it a fair ground for
litigation” means a question that is so “substantial, difficult and doubtful” as to require “a more
deliberate investigation.” Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.
1953); accord Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205-06 (2d Cir. 1970).3
“A balance of hardships tipping decidedly toward the party requesting a preliminary injunction”
means that, as compared to the hardship suffered by other party if the preliminary injunction is
granted, the hardship suffered by the moving party if the preliminary injunction is denied will be
so much greater that it may be characterized as a “real hardship,” such as being “driven out of
business . . . before a trial could be held.” Buffalo Courier-Express, Inc. v. Buffalo Evening
News, Inc., 601 F.2d 48, 58 (2d Cir. 1979); Int’l Bus. Mach. v. Johnson, 629 F. Supp. 2d 321,
333-34 (S.D.N.Y. 2009); see also Semmes Motors, Inc., 429 F.2d at 1205 (concluding that the
balance of hardships tipped decidedly in favor of the movant where it had demonstrated that,
without an injunctive order, it would have been forced out of business as a Ford distributor).4
2
See also Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12, n.2 (7th Cir. 1992)
(“Weighing the equities as a whole favors X, making preliminary relief appropriate, even though
the undiscounted balance of harms favors Y.”) [emphasis added].
3
See also Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402
(6th Cir. 1997); Rep. of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988); City of
Chanute v. Kansas Gas and Elec. Co., 754 F.2d 310, 314 (10th Cir. 1985); R.R. Yardmasters of
Am. v. Penn. R.R. Co., 224 F.2d 226, 229 (3d Cir. 1955).
4
The Court notes that the requirement of a balance of hardships tipping decidedly
in the movant’s favor is added only to the second part of the second element (i.e., the existence
of a sufficiently serious question as to the merits of the case to make it a fair ground for
9
With regard to the third element, a preliminary injunction is “in the public interest” if the
preliminary injunction would not “cause harm to the public interest.” SEC v. Citigroup Global
Mkts. Inc., 673 F.3d 158, 163 n.1 (2d Cir. 2012). The “public interest” is defined as “[t]he
general welfare of the public that warrants recognition and protection,” and/or “[s]omething in
which the public as a whole has a stake[,] esp[ecially], an interest that justifies governmental
regulation.” Black’s Law Dictionary at 1350 (9th ed. 2009).
The Second Circuit recognizes three limited exceptions to the above-stated general
standard. Citigroup Global Markets, Inc., 598 F.3d at 35, n.4.
First, where the moving party seeks to stay government action taken in the public interest
pursuant to a statutory or regulatory scheme, the district court should not apply the less rigorous
“serious questions” standard but should grant the injunction only if the moving party establishes,
along with irreparable injury, a likelihood that he will succeed on the merits of his claim. Id.
(citing Able v. United States, 44 F.3d 128, 131 [2d Cir. 1995]); see also Otoe-Missouria Tribe of
Indians v. New York State Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (“A plaintiff
cannot rely on the ‘fair-ground-for-litigation’ alternative to challenge governmental action taken
in the public interest pursuant to a statutory or regulatory scheme.”) (internal quotation marks
litigation), and not also to the first part of the second element (i.e., the existence of a likelihood
of success on the merits), which (again) requires merely a balance of equities (i.e., hardships and
benefits) tipping in the movant’s favor. See Citigroup Global Markets, Inc., 598 F.3d at 36
(“Because the moving party must not only show that there are ‘serious questions’ going to the
merits, but must additionally establish that ‘the balance of hardships tips decidedly’ in its favor .
. . , its overall burden is no lighter than the one it bears under the ‘likelihood of success’
standard.”) (internal citation omitted); cf. Golden Krust Patties, Inc. v. Bullock, 957 F. Supp. 2d
186, 192 (E.D.N.Y. 2013) (“[T]he Winter standard . . . requires the balance of equities to tip in
the movant's favor, though not necessarily ‘decidedly’ so, even where the movant is found likely
to succeed on the merits.”).
10
omitted). This is because “governmental policies implemented through legislation or regulations
developed through presumptively reasoned democratic processes are entitled to a higher degree
of deference and should not be enjoined lightly.” Able, 44 F.3d at 131.
Second, a heightened standard–requiring both a “clear or substantial” likelihood of
success and a “strong” showing of irreparable harm”–is required when the requested injunction
(1) would provide the movant with all the relief that is sought and (2) could not be undone by a
judgment favorable to the non-movant on the merits at trial. Citigroup Global Markets, Inc., 598
F.3d at 35, n.4 (citing Mastrovincenzo v. City of New York, 435 F.3d 78, 90 [2d Cir. 2006]); New
York v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (“When either condition is met, the
movant must show [both] a ‘clear’ or ‘substantial’ likelihood of success on the merits . . . and
make a ‘strong showing” of irreparable harm’ . . . .”) (emphasis added).
Third, the above-described heightened standard may also be required when the
preliminary injunction is “mandatory” in that it would “alter the status quo by commanding some
positive act,” as opposed to being “prohibitory” by seeking only to maintain the status quo.
Citigroup Global Markets, Inc., 598 F.3d at 35, n.4 (citing Tom Doherty Assocs. v. Saban
Entm’t, 60 F.3d 27, 34 [2d Cir. 1995]).5 As for the point in time that serves as the status quo, the
Second Circuit has defined this point in time as “the last actual, peaceable uncontested status
which preceded the pending controversy.” LaRouche v. Kezer, 20 F.3d 68, 74, n.7 (2d Cir.
1994); accord Mastrio v. Sebelius, 768 F.3d 116, 120 (2d Cir. 2014); Actavis PLC, 787 F.3d at
650.
5
Alternatively, in such a circumstance, the “clear or substantial likelihood of
success” requirement may be dispensed with if the movant shows that “extreme or very serious
damage will result from a denial of preliminary relief.” Citigroup Global Markets, Inc., 598
F.3d at 35, n.4 (citing Tom Doherty Assocs., 60 F.3d at 34).
11
III.
ANALYSIS
A.
Likelihood of Success on the Merits or Serious Questions as to the Merits
After carefully considering the parties’ arguments on this issue, the Court finds that
Plaintiff has not shown either a likelihood of success on the merits or a serious question as to the
merits, for the reasons stated in Defendants’ Opposition Memorandum of Law. (Dkt. No. 29, at
11-20 [Defs.’ Opp’n Mem. of Law].) To those reasons, the Court adds the following analysis.
As an initial matter, Defendants suggest that the Court should apply the heightened
standard for mandatory preliminary injunctions because Plaintiff is seeking to alter the status quo
by requiring Defendants to release him from Ad Seg. (Dkt. No. 29, at 9 [Defs.’ Opp’n Mem. of
Law].) The Court agrees. The preliminary injunction that Plaintiff seeks is clearly mandatory
rather than prohibitory because he has been in SHU under the Ad Seg program since 2010, and
was in SHU under the disciplinary segregation program for many years prior to that time; his
release from Ad Seg confinement in SHU would therefore alter the status quo rather than
maintain it. As noted above in Part II of this Decision and Order, 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 v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011); see also Mastrovincenzo,
435 F.3d at 89 (noting that, when an injunction is mandatory in nature, it “‘thus alters the
traditional formula by requiring that the movant demonstrate a greater likelihood of success’”);
Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (“The moving party must make a ‘clear’ or
‘substantial’ showing of a likelihood of success where . . . the injunction sought ‘will alter, rather
than maintain, the status quo.’”); General Mills, Inc. v. Chobani, LLC, 158 F. Supp. 3d 106, 117
12
(N.D.N.Y. 2016) (Hurd, J.) (“[A] party seeking a ‘mandatory’ preliminary injunction must
demonstrate a ‘clear’ or ‘substantial’ likelihood of success on the merits.”).
Granted, the Second Circuit has held that the “clear or substantial likelihood of success”
requirement may be dispensed with if the movant shows that “extreme or very serious damage
will result from a denial of preliminary relief.” Citigroup Global Markets, Inc., 598 F.3d at 35,
n.4. However, Plaintiff has not made such a showing. In the Complaint, Plaintiff alleges that he
has suffered (and will continue to suffer) both mental and physical damage as a result of his
lengthy Ad Seg confinement, including anxiety with panic attacks, insomnia, suicidal thoughts,
inability to concentrate, and a chronic skin rash. (Dkt. No. 1, at ¶¶ 40, 44-74, 81-85 [Compl.].)
However, the medical and other evidence submitted with the motion and other memoranda do
not suggest that extreme or very serious damage will result from a denial of Plaintiff’s motion
for a preliminary injunction. Notably, medical records submitted with Plaintiff’s motion
consistently document a recurrent skin rash that was treated with over-the-counter Benadryl,
over-the-counter bacitracin, prednisone, hydrocortisone cream, and special soap without any
indication of complications. (Dkt. No. 17, Attach. 16, at 2-33.) There is no evidence to support
Plaintiff’s assertions that this rash was caused by his anxiety; rather, multiple notes suggest it
was related to an allergic reaction, possibly to deodorant, peanut butter, or medications for other
illnesses. (Id. at 12, 27.) Regarding his anxiety, these treatment notes show that Plaintiff was
engaged in treatment with the Office of Mental Health, but record little else other than the fact he
was taking anti-anxiety medications at various times and a few instances of symptoms including
anxiety, chest pain, vertigo, and increased heart rate and blood pressure; notably, many of these
symptoms were reported in 2013, with few reports in more recent treatment notes. (Id. at 16, 18-
13
21, 25, 28, 30-33.) A note from a social worker, dated August 28, 2014, indicates that, although
Plaintiff receives monthly mental health screenings, none of those assessments had resulted in
endorsement of a major anxiety disorder. (Dkt. No. 17, Attach. 14, at 3.) Additionally, a
diagnosis form from May 2016 indicated that Plaintiff’s former diagnosis of adjustment disorder
with anxiety had been changed to anti-social personality disorder; Plaintiff was classified as a
Level 3 inmate, suggesting that he may benefit from brief psychotherapy and psychiatric
medication but that he did not have a Serious Mental Illness diagnosis. (Dkt. No. 29, Attach. 4,
at 7-8.) The medical and other evidence currently before the Court does not substantiate the high
degree of severity of the medical conditions that Plaintiff alleges as a result of his continued
confinement in SHU under Ad Seg. Because Plaintiff has therefore failed to show that extreme
or very serious damage will result from denial of his motion for preliminary injunction, he is
required to show that there is a clear or substantial likelihood of success on the merits.6
Plaintiff’s argument that he has established a likelihood of success on the merits is based
heavily on what he perceives to be strong similarities between his situation and the factual
situation presented in Proctor. (Dkt. No. 17, Attach. 1, at 21-28 [Pl.’s Mem. of Law].)
However, even if Plaintiff were to show that the factual situation here is sufficiently similar to
that in Proctor, such factual similarity would not necessarily indicate that there is a likelihood of
6
Plaintiff argues in his reply memorandum of law that the higher burden for a
mandatory injunction means only that he must show “likelihood of success on the merits rather
then the less demanding ‘serious questions going to the merits’ standard.” (Dkt. No. 33, at 10
[Pl.’s Reply Mem. of Law].) However, this is an erroneous interpretation of Second Circuit law;
the case that Plaintiff cites to support his assertion does not suggest that “likelihood of success”
is itself the heightened standard, but rather a part of the general standard for preliminary
injunctions. Citigroup Global Markets, Inc., 598 F.3d 30, 34-38 & 35 n.4; see also
Mastrovincenzo, 435 F.3d at 89 (noting that mandatory injunctions require a showing of a
“greater likelihood of success”) (emphasis added).
14
success on the merits. Notably, in Proctor, the Second Circuit reversed the district court’s
findings within the context of a summary judgment motion, not a denial of a preliminary
injunction. Proctor, 846 F.3d at 612-14. The Second Circuit’s finding that the plaintiff had
raised a genuine dispute of material fact regarding a constitutional violation in DOCCS’
application of the three-tiered system for reviewing continued Ad Seg confinement does not
equate to a finding that the plaintiff had demonstrated a likelihood of success on the merits of his
claim; to the contrary, the Second Circuit acknowledged that some of the evidence could also
lead a reasonable jury to conclude that DOCCS had based their Ad Seg reviews on a proper
consideration of multiple factors. Id. at 614. Because the Second Circuit found only that
summary judgment was improperly granted to the defendants (rather than finding that summary
judgment should have been granted to the plaintiff), the mere fact that Proctor was based on
similar facts would not alone compel this Court to find that Plaintiff is entitled to a preliminary
injunction; rather, the Court must consider, in greater depth, the specific facts in this case as they
apply to the heightened standard for mandatory preliminary injunctions and the factors stated in
Proctor.7
7
Plaintiff also analogizes Johnson v. Wetzel, 209 F. Supp. 3d 776 (M.D. Pa. 2016)
(a case that did involve a preliminary injunction) as support for his argument that the facts in this
case show a likelihood of success on the merits. (Dkt. No. 17, Attach. 1, at 23 [Pl.’s Mem. of
Law].) However, the Court is not persuaded that the same outcome is warranted here. In
addition to numerous factual differences (including the amount of human contact allowed,
evidence supporting mental diagnoses and their resulting symptoms and effects, and the nature
and amount of more recent behavioral infractions), it is not apparent that the Johnson court
applied the same heightened standard that this Court is required to apply based on Second
Circuit law. Notably, the Johnson court examined whether there was a “reasonable probability
of success on the merits,” while the Second Circuit requires this Court to assess whether there is
a “clear” or “substantial” likelihood of success on the merits due to the mandatory nature of the
preliminary injunction that Plaintiff seeks. Johnson, 209 F. Supp. 3d at 776; General Mills, Inc.,
158 F. Supp. 3d at 117. Additionally, Johnson was premised on the plaintiff’s Eighth
Amendment conditions-of-confinement claim, not a denial of his Fourteenth Amendment due
process rights (the basis of the claims relied on by Plaintiff in this motion). Johnson, 209 F.
Supp. 3d at 776-81.
15
The Second Circuit outlined the following three criteria in Proctor for analyzing whether
the review process related to continued Ad Seg confinement violates due process rights:
First, the reviewing prison officials must actually evaluate whether the
inmate’s continued Ad Seg confinement is justified. . . . It is not sufficient for
officials to go through the motions of nominally conducting a review meeting
when they have developed a pre-review conclusion that the inmate will be
confined in Ad Seg no matter what the evidence shows. Review with a preordained outcome is tantamount to no review at all.
Second, the reviewing officials must evaluate whether the justification for Ad
Seg exists at the time of the review or will exist in the future, and consider
new relevant evidence as it becomes available. It is inherent in Hewitt’s use
of the term ‘periodic’ that ongoing Ad Seg reviews may not be frozen in
time, forever rehashing information addressed at the inmate’s initial Ad Seg
determination. . . . Rather, reviews must take into account prison conditions
and inmate behavior as they change over time; those changes may modify the
calculus of whether the inmate presents a current threat to the safety of the
facility. The periodic Ad Seg review test announced by the Hewitt Court is
not whether the confined inmate was a threat to the facility when he was
confined initially; it is whether the inmate ‘remains a security risk’ on the
date of the periodic review. . . . This is not to say that prison officials are
barred from according significant weight to events that occurred in the past.
Neither do we suggest that recent events categorically ought to be more
salient in periodic reviews than those that occurred long ago. We conclude
merely that prison officials must look to the inmate’s present and future
behavior and consider new events to some degree to ensure that prison
officials do not use past events alone to justify indefinite confinement.
Third and finally, the reviewing officials must maintain institutional safety
and security (or another valid administrative justification) as their guiding
principles throughout an inmate’s Ad Seg term. SHU confinement that
began for proper Ad Seg purposes may not morph into confinement that
persists for improper purposes. The state is entitled to the procedural
flexibility that Hewitt allows because of its manifest interest in maintaining
safe detention facilities and other similar administrative concerns; ‘the
Mathews balancing test tips in favor of the inmate’s liberty interest’ when a
state seeks to impose discipline. . . . The state may not use Ad Seg as a
charade in the name of prison security to mask indefinite punishment for past
transgressions.
Proctor, 846 F.3d at 610-11 (citing Hewitt v. Helms, 459 U.S. 460 [1983]; other citations
omitted).
16
The Second Circuit summarized this test by noting, ““[P]eriodic reviews of Ad Seg
satisfy procedural due process only when they are meaningful. Reviews are meaningful only
when they involve real evaluations of the administrative justification for confinement, they
consider all of the relevant evidence that bears on whether that administrative justification
remains valid, and they ensure that Ad Seg is used neither as a form of punishment nor a pretext
for indefinite confinement.” Id. at 614. A careful balancing of these factors does not weigh in
favor of finding that there is a clear or substantial likelihood of success on the merits of
Plaintiff’s due process claims.
First, the Court concludes that Plaintiff has not sufficiently shown that the 60-day review
process was a sham with a preordained outcome. Unlike Proctor, where there was testimony
from prison officials that they had no intention of releasing Mr. Proctor regardless of more recent
conduct, there are no such statements here. See Proctor, 846 F.3d at 612-13. Notably, recent
Central Office Review Committee reports from July 20, 2017, and August 15, 2017, while
recommending that Plaintiff be retained in Ad Seg at that time, noted that Plaintiff “appears to be
a strong candidate for transition, and other possibilities should be considered and evaluated so
long as [Plaintiff] continues to demonstrate appropriate communication and behavior.” (Dkt.
No. 33, Attach. 3, at 3, 5.) On November 7, 2017, the Central Office Review Committee stated
that a less restrictive environment could be considered in the future if Plaintiff “can demonstrate
a true change in his attitude,” but noted that Ad Seg remained appropriate at that time,
particularly in light of a pending ticket related to a recent alleged violation of the phone rules.8
8
Plaintiff was later found guilty of violating the rules of the phone program and
engaging in an improper three-way call, though he was found not guilty of the soliciting charge.
(Dkt. No. 33, Attach. 4, at 2.)
17
(Dkt. No. 33, Attach. 3, at 9.) In his declaration of November 22, 2017, Scott Kelly, Director of
Crisis Intervention for DOCCS (who indicated that he participated in Ad Seg reviews as a
member of the Central Office Review Committee) stated that he had foreseen a day when
Plaintiff might be released to a less restrictive environment, but, due to his recent infraction, he
must demonstrate he will go back to improving his behavior for that to happen. (Dkt. No. 29,
Attach. 1, at ¶ 39.) Mr. Kelly also noted that the Central Office Review Committee had recently
recommended the release of two other Ad Seg inmates. (Id. at ¶ 45.) In his declaration, Acting
Deputy Commissioner James Gorman noted that “many of the assessments suggest that
[P]laintiff is on the right path to demonstrating that the time may be near to start providing him
with fewer restrictions, greater freedoms, and more frequent contact with staff and other
inmates.” (Dkt. No. 29, Attach. 2, at ¶ 48.) In his declaration, Sergeant Kevin Randall stated
that, as a member of the facility-level review team, he was never pressured to make a specific
recommendation as to Plaintiff’s Ad Seg retainment and that “[o]nce [Plaintiff] demonstrates his
ability to control his anger at minor set-backs and discuss matters maturely and rationally, I will
be able to recommend that [he] be moved from Ad Seg to a less restrictive environment.” (Dkt.
No. 29, Attach. 3, at ¶¶ 24, 28.) Sergeant Randall stated that, based on his observations, “I
believe that day will come.” (Id. at ¶ 30.) Although the Central Office Review Committee
reports do show that Plaintiff has been overall exhibiting appropriate behavior on a regular basis
in recent years with only sporadic infractions, Plaintiff has not established any facts that
sufficiently indicate that the review process was unfairly predetermined against him, particularly
in light of the statements in these recent review reports and declarations from DOCCS officials.
18
Second, the Court concludes that Plaintiff has not sufficiently shown that DOCCS relied
on past events alone to justify Plaintiff’s continued Ad Seg confinement. The Second Circuit
makes clear that DOCCS officials are not precluded from considering past incidents (specifically
noting that officials are in fact allowed to afford significant weight to those incidents), but rather
that past incidents may not be the sole basis for the decision to continue Ad Seg. Proctor, 846
F.3d at 610-11. Although the review reports show that DOCCS did afford fairly substantial
weight to Plaintiff’s past conduct and that a significant number of the reports note overall
positive observations regarding his attitude and behavior, some of the reports contain less
favorable notations which show that reviewing officials did consider other, more recent, conduct
as part of their review analysis. Of note, a report from June 2012 noted that Plaintiff had a
pending behavior report for lewd conduct and failing to follow a direct order (among other
things), as well as that his attitude and behavior during the past few months had been
inappropriate; inappropriate attitude and behavior were also noted in the August 2012 report.
(Dkt. No. 17, Attach. 4, at 22, 25.) Reports from September 2012, January 2013, and March
2013 noted that the June incident showed that Plaintiff continued to lack the ability to follow
directions and prison rules and that, “[i]f released back into the general population, [he] will
continue his aggressive, abusive, and dangerous manner;” these reports also variously noted that
Plaintiff’s behavior overall suggested he was manipulative, arrogant, and had a confident manner
that “he wields as a means of intimidation.” (Id. at 28-29, 31, 34.) Plaintiff had another
misbehavior report in April 2015 related to possession of contraband. (Id. at 104, 115.) In the
July 2016 report, the facility committee stated that Plaintiff “has regressed into past disruptive
behavior, giving staff a hard time and not follow[ing] direction,” noting also a recent
misbehavior report for creating a disturbance and disobeying a direct order; it was also noted that
19
he still exhibited extreme irritability. (Id. at 133.) More recent reports state that Plaintiff was
“upset” over discontinuation of the Pilot Incentive Program, but there is no indication as to the
nature of his expression of those feelings. (Dkt. No. 33, Attach. 3, at 2-3, 4-5, 6-7.) He received
a misbehavior report in September 2017 for violation of the phone call rules. (Id. at 8.)
Although these notations of poor conduct and the issuance of misbehavior reports occur months
and even years apart, they suggest that DOCCS officials did not rely on past events alone when
determining that Plaintiff continued to pose a security risk to prison staff and other inmates such
that he should remain confined in Ad Seg. The declarations of various officials involved in the
Ad Seg review process further show that past behavior was not the only consideration for
keeping Plaintiff in Ad Seg. (Dkt. No. 29, at 16-18 [Defs.’ Opp’n Mem. of Law] [summarizing
the relevant content of those declarations].) Additionally, Plaintiff’s argument that DOCCS’
decisions used impermissible circular logic (i.e., that Plaintiff’s good behavior under the Ad Seg
restrictions was a sign that he should be kept in Ad Seg) is not a persuasive ground for finding
that he has shown a substantial likelihood of success as to this factor because, in making this
argument, he ignores all of the previously cited evidence from the 60-day review reports. (Dkt.
No. 17, Attach. 1, at 22-25 [Pl.’s Mem. of Law].) Notably, although the reports do contain some
notations suggestive of the circular logic Plaintiff asserts, overall, the reports indicate that
DOCCS officials still considered both past conduct and his current behaviors when continuing to
recommend Ad Seg confinement.
Third, the Court concludes that Plaintiff has not sufficiently shown that his retention in
Ad Seg was punishment masked as concern for safety and security. As stated above, Plaintiff’s
argument that his confinement in Ad Seg is “indefinite punishment for past transgressions” is
based on his selective recitation of the evidence that excludes the notations of incidents of poor
20
behavior and multiple misbehavior reports between 2012 and 2017. Most relevant to analysis of
this factor are statements in those reports related to misbehavior that suggests Plaintiff remained
unable to consistently follow rules and direct orders, acted in a manner that could serve to
intimidate others, and expressing “extreme irritability,” all of which serve as a basis for DOCCS
officials’ stated belief that he would pose a threat to the security and the safety of others if placed
in a less restrictive environment. Additionally, Plaintiff’s assertion that Ad Seg is being used as
punishment rather than for legitimate reasons of safety also ignores the fact that he was
permitted to participate in the Pilot Incentive Program, through which he received various
greater privileges contingent on continued good behavior, including additional exercise time,
additional family visits, more comfortable clothing, phone calls, television time, and money for
the commissary. (Dkt. No. 17, Attach. 4, at 30, 33, 36, 45, 48, 51, 54, 57, 60, 63, 72, 79, 93, 95,
105, 108, 114, 117, 120, 123, 126, 129, 132, 137, 139, 143, 145, 147.) Notably, Plaintiff had
these privileges suspended for a time due to misbehavior on two occasions, one of which was for
creating a disturbance and disobeying a direct order in 2016. (Id. at 39, 133-134.) Plaintiff has
not sufficiently shown that the DOCCS officials’ concerns about his potential to undermine
prison security and safety if released to a less restrictive environment were a mere pretext for
using Ad Seg as a continuing punishment for past behavior.
Based on the above, the Court finds that Plaintiff has not shown that there is a clear or
substantial likelihood of success on the merits of his claims related to his confinement in Ad Seg
without due process.9 For all of these reasons, the Court denies Plaintiffs’ motion for a
preliminary injunction.
9
Plaintiff’s motion for a preliminary injunction is expressly based on the alleged
failure of Defendants to provide meaningful review of his Ad Seg confinement as required by the
Fourteenth Amendment. (Dkt. No. 17, Attach. 1, at 6-7, 21 [Pl.’s Mem. of Law].) Plaintiff does
not seek a preliminary injunction based on his Eight Amendment claims.
21
B.
Irreparable Harm and Public Interest
Having found that Plaintiff has not shown a clear or substantial likelihood of success on
the merits of his Fourteenth Amendment claims, the Court need not, and does not, render a
finding regarding the remaining two prongs of the preliminary injunction standard.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for a preliminary injunction (Dkt. No. 17) is
DENIED.
Dated: February 9, 2018
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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