The opinion of the court was delivered by: THOMAS J. MCAVOY
This matter was referred to Magistrate Judge Gustave J. DiBianco for a report and recommendation by a standing order dated August 2, 1985. In a Report-Recommendation dated January 4, 1994, Magistrate Judge DiBianco recommended that the plaintiff's request for a temporary restraining order, or alternatively, a preliminary injunction, be denied.
Plaintiff's suit pursuant to 42 U.S.C. § 1983 arises from alleged violations of plaintiff's constitutional rights by denying him permission to correspond with inmate Michael Linn who had acted as plaintiff's legal assistant until he was transferred to another facility. Plaintiff thus moved for a temporary restraining order or for a preliminary injunction allowing him to continue to correspond with Linn until the merits of this § 1983 suit are addressed by the court.
As noted in the Report-Recommendation, in order to obtain a preliminary injunction in the Second Circuit, the movant must make a showing of: (1) irreparable harm; and either (2) likelihood of success on the merits; or (3) sufficiently serious questions going to the merits to make them a fair ground for litigation; and (4) a balance of hardships tipping decidedly in favor of the movant. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). The Report-Recommendation held that irreparable harm had been shown, but that neither a likelihood of success on the merits nor a sufficiently serious question going to the merits with a balance of hardships tipping decidedly toward the plaintiff had been proven.
The court agrees with the Magistrate Judge's Report-Recommendation and finds that, after examining the record, it is not subject to attack for plain error or manifest injustice. The plaintiff, in accordance with the Report-Recommendation, filed objections to the Magistrate Judge's findings on January 18, 1994. However, the court finds these objections to be without merit, and thus, adopts the Magistrate Judge's Report-Recommendation dated January 4, 1994, for the reasons stated therein, and hereby denies the plaintiff's motion for a temporary restraining order and/or a preliminary injunction.
Dated at Binghamton, New York
Chief U.S. District Judge
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