fact that the defendants are considering a change in their policy, and would agree to allow the plaintiff to exercise, does not eliminate--on Eighth Amendment or and any other grounds--the need for an injunction.
For all of the foregoing reasons, for those expressed in the Court's opinion and order for a preliminary injunction, and for those expressed on the record at the hearing on the motion, defendants' motion to alter, amend, or reargue the Court's order granting a preliminary injunction is denied. Furthermore, the defendants' motion to stay the order pending disposition of that motion is denied as moot.
At the request of defendants, the Court has considered defendants' papers also to constitute a motion under Fed. R. Civ. P. 62(c) to stay the preliminary injunction of August 14, 1995 pending appeal. The defendants represented that they have not yet determined whether to appeal but needed time to consider that option and, if they appeal, to stay the preliminary injunction pending appeal and, if necessary, to obtain a stay from the Court of Appeals. Expedition is important in view of the continuing burdens on the plaintiff combined with the fact that this Court provided the defendants two weeks to implement the preliminary injunction and the defendants waited until the last day to move for a stay of the order pending reargument, a stay that was not justified.
On the papers before the Court, defendants have plainly failed to make a satisfactory showing with respect to any of the factors governing the issuance of a stay pending appeal under Rule 62(c). Those factors are: (1) whether the applicant has made a strong showing of likely success on the merits; (2) whether the applicant will suffer irreparable injury absent a stay; (3) whether issuance of the stay will substantially injure other parties interested in the proceeding; and (4) whether the public interest favors issuing a stay. Hilton v. Braunskill, 481 U.S. 770, 776, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987); Malarkey v. Texaco, Inc., 794 F. Supp. 1248, 1250 (S.D.N.Y. 1992) (Mukasey, J.). The defendants' papers include no strong showing of the likelihood they will succeed on the merits. Indeed the Court reviewed the issue of likelihood of success and found that the plaintiff is likely to succeed in this case, even applying the strictest tests to a motion for preliminary injunction. See Jolly, 894 F. Supp. 734, 1995 WL 495799, at *3-*4. Given that the plaintiff is unquestionably not contagious, that the plaintiff is not in respiratory isolation, that some others who actually test positive on the PPD test remain in the general prisoner population, and that the PPD test itself has a substantial error rate, see Jolly, 894 F. Supp. 734, 1995 WL 495799, at *1-*4, there is no risk of irreparable injury to the defendants or substantial injury to any other interested party if a stay is not issued. The plaintiff will, however, continue to be substantially burdened--as he has been for over three and a half years--so long as he remains in medical keeplock. Finally, defendants have failed to demonstrate that their epidemiological concerns outweigh the strong public interest in following the law, namely RFRA and the Eighth Amendment to the Constitution. Cf. Mularkey, 794 F. Supp. at 1251. Accordingly, the motion for a stay pending appeal is denied.
To allow defendants sufficient time to consider whether to appeal the preliminary injunction to the Court of Appeals, the preliminary injunction is hereby stayed until Friday, September 1, 1995 at 5:00 p.m. subject to two conditions. First, plaintiff shall be permitted one hour of exercise each day while in medical keeplock. Second, plaintiff shall be permitted three showers each week. Furthermore, should defendants file an appeal to the Court of Appeals before September 1, 1995 at 5:00 p.m., the preliminary injunction order of August 14, 1995 is further stayed until Friday, September 8, 1995 at 5:00 p.m. subject to the same two aforementioned conditions.
Dated: New York, New York
August 28, 1995
JOHN G. KOELTL
United States District Judge
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