Belile v. John Doe #1 et al

Filing 27

DECISION AND ORDER denying 25 Motion for TRO. Signed by Hon. Charles J. Siragusa on 8/15/12. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOSEPH BELILE,
Plaintiff,
DECISION & ORDER

-vs-

10-CV-6501-CJS

JOHN DOE #1, et al.,
Defendants.

APPEARANCES
For Plaintiff:

Joseph Belile
08A3707
Clinton Correctional Facility
Box 2001
Dannemora, NY 12929

For Defendants:

J. Richard Benitez, A.A.G.
New York State Office of the Attorney General
144 Exchange Blvd, Suite 200
Rochester, NY 14614

INTRODUCTION
Siragusa, J. Plaintiff Joseph Belile (“Belile”) filed this pro se action seeking relief
under 28 U.S.C. § 1983. Belile alleges that Defendants used excessive force and assaulted
him in violation of his Eight Amendment constitutional rights. The case is now before the
Court on Belile’s motion for a temporary restraining order, filed on June 19, 2012, ECF No.
25. For the reasons stated below, the application is denied.

BACKGROUND
Belile alleges that corrections officers at Elmira Correctional Facility (“Elmira”), on or
about August 14, 2009, used excessive force against him. His application points out that he
is now back at Elmira, that Sgt. Backer and Corrections Officers Aloi1 and Murphy work at
Elmira, and he fears for his safety. Pl.’s TRO appl’n at 1. He further states that, “I have
reason to believe they will take action of some form of retaliation by setting me up or harming
me in some way.” Id. His application does not specify the basis for his belief. Belile asks for
the following relief: “that the Court place me in this facility’s protective custody and keep me
there or have me transferred by contacting the facility to do so.” Id.
STANDARDS OF LAW
“A party seeking injunctive relief ordinarily must show: (a) that it will suffer irreparable
harm in the absence of an injunction and (b) either (i) likelihood of success on the merits or
(ii) sufficiently serious questions going to the merits to make them a fair ground for litigation
and a balance of hardships tipping decidedly in the movant’s favor.” Tom Doherty Assocs.,
Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33 (2d Cir.1995). In Doherty Assoc., Inc. V.
Saban Entertainment, Inc., 60 F.3d 27 (2d Cir. 1995), the Second Circuit discussed the
requirements for a mandatory injunction:
However, we have required the movant to meet a higher standard where: (i) an
injunction will alter, rather than maintain, the status quo, or (ii) an injunction will
provide the movant with substantially all the relief sought and that relief cannot
be undone even if the defendant prevails at a trial on the merits.…
1. Mandatory Injunctions
The typical preliminary injunction is prohibitory and generally seeks only to
maintain the status quo pending a trial on the merits. See Abdul Wali v.
1

Aloi is not a named party in this litigation, thus, the Court does not have jurisdiction over

him.
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Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). A mandatory injunction, in
contrast, is said to alter the status quo by commanding some positive act. See
id. As noted above, this distinction is important because we have held that a
mandatory 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.” Id. (internal quotations
and citations omitted); see also SEC v. Unifund SAL, 910 F.2d 1028, 1039 (2d
Cir. 1990) (injunction going beyond preservation of status quo requires “a
more substantial showing of likelihood of success”); Jacobson & Co. v.
Armstrong Cork Co., 548 F.2d 438, 441 (2d Cir. 1977). The “clear” or
“substantial” showing requirement -- the variation in language does not reflect
a variation in meaning -- thus alters the traditional formula by requiring that the
movant demonstrate a greater likelihood of success. See Unifund SAL, 910
F.2d at 1039.…
Moreover, many mandatory injunctions can be stated in seemingly prohibitory
terms. See, e.g., Unifund SAL, 910 F.2d at 1040 (imposing “substantial
showing of likelihood of success” standard because “though the order is
prohibitory in form, rather than mandatory, it accomplishes significantly more
than preservation of the status quo”).
Doherty Assoc., Inc. v. Saban Entertainment, Inc., 60 F.3d at 34–35.
ANALYSIS
Belile’s application for a temporary restraining order fails to meet the high standards
set out in the law. His allegations against the three employees at Elmira are speculative and
he does not support them with any facts.
CONCLUSION
Belile’s application for a temporary restraining order, ECF No. 25, is denied.
IT IS SO ORDERED.
Dated: August 15, 2012
Rochester, New York
ENTER.

/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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