Allah v. Piccolo et al
Filing
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DECISION AND ORDER denying 19 Motion for Reconsideration. SO ORDERED. A copy of this NEF and Decision and Order have been mailed to the pro se Plaintiff. Signed by Hon. Frank P. Geraci, Jr. on 5/25/2018. (AFM)
PS
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
KHA’SUN CREATOR ALLAH,
Plaintiff,
v.
Case # 16-CV-177-FPG
DECISION AND ORDER
PAUL PICCOLO, et al.,
Defendants.
___________________________________
INTRODUCTION
Pro se Plaintiff Kha’Sun Creator Allah, a prisoner confined at Elmira Correctional Facility,
filed this action seeking relief under 42 U.S.C. § 1983. ECF No. 1. Plaintiff alleged that Elmira’s
policies exposed him to inclement weather, denied him “winter clothing,” and created a risk to his
health. ECF No. 1 at 10. Plaintiff also moved for a preliminary injunction and temporary
restraining order1 to prohibit Defendants from enforcing Elmira’s rules concerning proper attire,
because Defendants were allegedly forcing him “to go outside in sub-freezing temperatures” with
inadequate protection from the elements. ECF No. 3 at 10. The Court denied Plaintiff’s request
for a preliminary injunction as moot because he had been transferred from Elmira to another prison
facility. ECF No. 13.
Currently before the Court is Plaintiff’s Motion to Reconsider the denial of the preliminary
injunction because Plaintiff returned to Elmira and is presently incarcerated there. ECF No. 19.
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Plaintiff’s original application sought a temporary restraining order without notice to Defendants. See Fed. R. Civ.
P. Rule 65(b)(1). Plaintiff’s current application is on notice to Defendants, and therefore the Court reviews this
application as a Motion for a Preliminary Injunction. See Fed. R. Civ. P. Rule 65(a)(1) (“The court may issue a
preliminary injunction only on notice to the adverse party.”). The Court’s ruling would be the same without regard to
the form of the preliminary injunctive relief sought, because “[t]he standard for an entry of a TRO is essentially the
same as for a preliminary injunction.” Free Country Ltd. v. Drennen, 235 F. Supp. 3d 559, 565 (S.D.N.Y. 2016).
Defendants oppose the Motion. ECF No. 21. For the reasons that follow, Plaintiff’s Motion for
Reconsideration (ECF No. 19) is DENIED.
DISCUSSION
I.
Motion for Reconsideration
Federal Rule of Civil Procedure 60 governs relief from a court judgment or order. Fed. R.
Civ. P. 60. The standard for granting a motion for reconsideration is “strict, and reconsideration
will generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.
2012) (citation omitted). “A motion for reconsideration should be granted only when the [party]
identifies an intervening change of controlling law, the availability of new evidence, or the need
to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc.
v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (citation and internal quotation marks
omitted); Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). It is “not a vehicle for
relitigating old issues, presenting the case under new theories, securing a rehearing on the merits,
or otherwise taking a second bite at the apple.” Analytical Surveys, Inc., 684 F.3d at 52 (citation
omitted). Accordingly, a party may not merely offer the same “arguments already briefed,
considered and decided” or “advance new facts, issues or arguments not previously presented to
the Court.” Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990).
Because the circumstances have changed and Plaintiff returned to Elmira, the Court will
reconsider whether a preliminary injunction is appropriate in this case.
II.
Preliminary Injunction
In general, the district court may grant a preliminary injunction if the moving party
establishes (1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b)
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sufficiently serious questions going to the merits of the claims to make them fair ground for
litigation, plus a balance of the hardships tipping decidedly in favor of the moving party. Plaza
Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989). “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 fair-ground-for-litigation standard and should
not grant the injunction unless the moving party establishes, along with irreparable injury, a
likelihood that he will succeed on the merits of his claim.” Andino v. Fischer, 555 F. Supp. 2d
418, 419 (S.D.N.Y. 2008); see also Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996).
“A preliminary injunction is considered an ‘extraordinary remedy that should not be
granted as a routine matter.” Distribution Sys. of Am., Inc. v. Vill. of Old Westbury, 785 F. Supp.
347, 352 (E.D.N.Y. 1992) (quoting JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d
Cir. 1990)). The mere possibility of harm is insufficient to justify granting a preliminary
injunction. See, e.g., Borey v. Nat’l Union Fire Ins. Co., 934 F.2d 30, 34 (2d Cir. 1991);
Distribution Sys. of Am., Inc. 785 F. Supp. at 352; Costello v. McEnery, 767 F. Supp. 72, 76
(S.D.N.Y. 1991). To satisfy the irreparable harm requirement, a movant generally must show that
he is “likely to suffer irreparable injury if the injunction is not granted,” Beal v. Stern, 184 F.3d
117, 122 (2d Cir. 1999), and that the harm is “not remote and speculative” but rather “actual and
imminent.” State of New York v. Nuclear Regulatory Comm’n, 550 F.2d 745, 755 (2d Cir. 1977).
Plaintiff’s papers do not establish that irreparable harm is actual and imminent. Although
Plaintiff returned to Elmira and is currently incarcerated there, it is late-May and the likelihood of
harm from sub-freezing temperatures is remote and speculative. Even if potential harm were
imminent, Plaintiff’s papers do not establish the requisite likelihood of success on the merits.
Accordingly, a preliminary injunction is unwarranted in this case.
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CONCLUSION
Plaintiff’s Motion for Reconsideration (ECF No. 19) is DENIED.
IT IS SO ORDERED.
Dated: May 25, 2018
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
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