United States District Court, Northern District of New York
December 13, 1999
RICHARD C. WALLIKAS AND RAYMOND D. SCHAFFER, PLAINTIFFS,
DAVID HARDER, BROOME COUNTY SHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; COUNTY OF BROOME; AND GERALD W. KELLAR, BROOME COUNTY UNDERSHERIFF, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES; DEFENDANTS.
The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
Plaintiffs Richard Wallikas ("Wallikas") and Raymond Schaffer
("Schaffer") (collectively "Plaintiffs") commenced the instant
litigation against Defendants David Harder ("Harder"), Broome
County Sheriff, in his individual and official capacities, the
County of Broome (the "County"), and Gerald W. Kellar ("Kellar"),
Broome County Undersheriff, in his individual and official
capacities (collectively "Defendants"), asserting claims pursuant
to 42 U.S.C. § 1983 for alleged violations of Plaintiffs'
constitutional rights under the First and Fourteenth Amendments
of the United States Constitution. Plaintiffs also assert pendant
state law claims under the New York Constitution and N.Y. CIV.
LAW § 75-b. The crux of the present dispute is Plaintiffs'
allegation that Defendants retaliated against them, by affecting
the terms and conditions of their employment, in connection with
Plaintiffs' participation in the recent election for the Broome
County Sheriff's position. Specifically, Plaintiffs contend that
they have been retaliated against "for their participation in the
elective process, as well as [for] their speech on matters of
public concern and their exposure of wrongdoing within the
[Sheriff's] [D]epartment during the time before [Sheriff Harder]
was elected." Pls. Mem. of Law at 1. Although Plaintiffs have not
lost their jobs or salaries, Plaintiffs allege that they have
been "subjected to actual and constructive demotions, discipline
and harassment in their ongoing employment." Id. at 3.
Plaintiff Wallikas, who apparently opposed Harder in the election
for Broome County Sheriff, contends that Harder's actions have
placed him "into a zone of idleness, which is compounded by [his]
day-to-day humiliation of being observed by long-time colleagues
in . . . demeaning position[s]." Id. Plaintiff Schaffer, who
apparently supported Wallikas' candidacy for Sheriff and opposed
certain political contributions to Harder, claims similar
retaliatory actions by Defendants.*fn1 See id. at 3-4.
The election for Broome County Sheriff, which was the starting
point for the alleged retaliatory campaign that is the basis of
Plaintiffs' Complaint, occurred in November 1998. Plaintiffs
commenced this action on August 5, 1999, some nine months later,
by filing a Verified Complaint seeking: (1) compensatory and
punitive damages; (2) restoration to the positions and job
responsibilities Plaintiffs held prior to the events alleged in
the Complaint; and (3) removal of any admonitions or adverse
reports contained in Plaintiffs' personnel files. On September
10, 1999, some one month later, Plaintiffs moved, by Order to
Show Cause, for a temporary restraining order ("TRO") and a
preliminary injunction. On September 13, 1999, this Court denied
Plaintiffs' motion, and later clarified that such denial was
based on the Court's determination that the present matter need
not be heard on an expedited basis. See Docket Nos. 7 and 14.
Plaintiffs' appeal of that decision was subsequently dismissed.
See Docket No. 29.
On October 25, 1999, on motion of Defendants, this Court
dismissed both the official-capacity claims against Defendants
Harder and Kellar, and the state-based claims brought pursuant to
the New York State Constitution and N.Y. CIV. SERV. LAW § 75-b.
See Wallikas v. Harder, 67 F. Supp.2d 82, 83-86 (N.D.N.Y. 1999).
On November 4, 1999, approximately two months after this Court
denied Plaintiffs' motion by Order to Show Cause seeking a TRO
and preliminary injunction, Plaintiffs filed the instant
preliminary injunction motion before the Court. Because the Court
finds that the adjudication of Plaintiffs' motion can be made on
the paper record presently before it, a hearing is not required.
See Charette v. Town of Oyster Bay, 159 F.3d 749, 755 (2d Cir.
1998); Consolidated Gold Fields PLC v. Minorco,
S.A., 871 F.2d 252, 256 (2d Cir. 1989) ("`[T]here is no hard
and fast rule in this circuit that oral testimony must be taken
on a motion for a preliminary injunction or that the court can in
no circumstances dispose of the motion on the papers before
it.'") (quoting Redac Project 6426, Inc. v. Allstate Ins. Co.,
402 F.2d 789, 790 (2d Cir. 1968)). The Court, having carefully
reviewed the detailed affidavits submitted by the parties, is
familiar with "the substance of the testimony to be offered."
Redac Project 6426, Inc., 402 F.2d at 790-91. Moreover, because
the Court finds that Plaintiffs have failed to establish the
requisite irreparable harm for a preliminary injunction to issue,
the Court need not reach the merits of Plaintiffs' claims and,
thus, it is not necessary to hold a hearing to resolve any
disputed issues of fact. See id. at 791. Accordingly, the Court
expresses no view with respect to the merits of Plaintiffs'
"[A] preliminary injunction is an extraordinary remedy that
should not be granted as a routine matter." JSG Trading Corp. v.
Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir. 1990) (citing Patton
v. Dole, 806 F.2d 24, 28 (2d Cir. 1986)); see also Ahmad v.
Long Island Univ., 18 F. Supp.2d 245, 247 (E.D.N.Y. 1998);
Costello v. McEnery, 767 F. Supp. 72, 75 (S.D.N.Y.) (describing
a preliminary injunction as a "drastic remedy"), aff'd,
948 F.2d 1278 (2d Cir. 1991), cert. denied, 504 U.S. 980, 112 S.Ct.
2957, 119 L.Ed.2d 579 (1992). "A party seeking a preliminary
injunction generally must establish `(a) irreparable harm and (b)
either (1) likelihood of success on the merits or (2)
sufficiently serious questions going to the merits to make them a
fair ground for litigation and a balance of hardships tipping
decidedly toward the party requesting the preliminary relief.'"
Charette, 159 F.3d at 754 (quoting Jackson Dairy, Inc. v. H.P.
Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam)).
"Irreparable harm is `the single most important prerequisite for
the issuance of a preliminary injunction.'" Rodriguez v.
DeBuono, 175 F.3d 227, 233-34 (2d Cir. 1999) (quoting Bell &
Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.
1983) (quotation omitted)). To establish irreparable harm,
"`[t]he movant must demonstrate an injury that is neither remote
nor speculative, but actual and imminent and that cannot be
remedied by an award of monetary damages.'" Id. at 234 (quoting
Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir.
1995)); see also N.A.A.C.P., Inc. v. Town of East Haven,
70 F.3d 219, 224 (2d Cir. 1995); Jayaraj v. Scappini, 66 F.3d 36,
39 (2d Cir. 1995) ("Irreparable harm `means injury for which a
monetary award cannot be adequate compensation.'") (quoting
Jackson Dairy, Inc., 596 F.2d at 72). Although a movant's
allegations that his First Amendment rights have been impaired
can constitute irreparable harm, see, e.g., Charette, 159 F.3d
at 755; Time Warner Cable of N.Y.C. v. Bloomberg, L.P.,
118 F.3d 917, 924 (2d Cir. 1997); Harford v. County of Broome, 1999
WL 615190, at *2 (N.D.N.Y. July 15, 1999) (citing Jolly v.
Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)), "`it often will be
more appropriate to determine irreparable injury by considering
what adverse factual consequences the plaintiff apprehends if an
injunction is not issued. . . .'" Charette, 159 F.3d at 755
(quoting Time Warner Cable, 118 F.3d at 924). The decision to
grant or withhold a preliminary injunction rests in the sound
discretion of the district court, "and its determination will not
be disturbed on appeal unless the grant or denial of this relief
is an abuse of discretion." JSG Trading Corp., 917 F.2d at 79;
see also Charette, 159 F.3d at 755.
To establish irreparable harm sufficient to entitle Plaintiffs
to a preliminary injunction, Plaintiffs must demonstrate that
monetary damages and reinstatement and/or restoration of previous
responsibilities are not capable of redressing any injuries
occasioned by Defendants' alleged wrongdoing. See Jayaraj, 66
F.3d at 39 ("The possibility that adequate compensatory
or other corrective relief will be available at a later date, in
the ordinary course of litigation, weighs heavily against a claim
of irreparable harm.") (quoting Sampson v. Murray, 415 U.S. 61,
90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974)); Borey v. National
Union Fire Ins. Co. of Pittsburgh, 934 F.2d 30, 34 (2d Cir.
1991) ("[W]hen a party can be fully compensated for financial
loss by a money judgment, there is simply no compelling reason
why the extraordinary equitable remedy of a preliminary
injunction should be granted.") (citation omitted); JSG Trading
Corp., 917 F.2d at 79 (collecting cases); Savage v. Gorski,
850 F.2d 64, 68 (2d Cir. 1988) ("Since reinstatement and money
damages could make appellees whole for any loss suffered during
this period, their injury is plainly reparable and appellees have
not demonstrated the type of harm entitling them to injunctive
relief."); Harford, 1999 WL 615190, at *2-*3.
In addition to monetary damages, Plaintiffs are seeking
restoration to the positions and responsibilities they assumed
before Sheriff Harder took office and removal of any adverse
reports placed in their personnel files since that time. If they
are successful in the underlying litigation, Plaintiffs can be
made whole by being restored to their prior positions and
responsibilities; having negative reports removed from their
files; and obtaining monetary damages for any injuries resulting
from Defendants' misconduct. Such relief would adequately
compensate Plaintiffs "for any damages [they] may now be
suffering as a result of [D]efendants' actions." Harford, 1999
WL 615190, at *3 (citing Sagendorf-Teal v. County of
Rensselaer, 100 F.3d 270, 276 (2d Cir. 1996); Petrella v.
Siegel, 843 F.2d 87, 89 (2d Cir. 1988)); see also Savage, 850
F.2d at 68; Ahmad, 18 F. Supp.2d at 249 (citing Town of East
Haven, 70 F.3d at 224). Thus, because Plaintiffs can be
adequately compensated by monetary damages and other
post-litigation relief, Plaintiffs have failed to satisfy the
irreparable harm prong for a preliminary injunction.
In arguing that Harder's actions constitute irreparable harm,
Wallikas contends that he has:
been literally put into a zone of idleness, which is
compounded by the day-to-day humiliation of being
observed by long-time colleagues in the demeaning
position of not only returning to plainclothes, but
having no access to the normal accouterments of the
position of Captain and no authority concomitant with
that position. . . .
Pls. Mem. of Law at 3.
Schaffer alleges similar retaliatory acts by Harder that resulted
in personal humiliation and a loss of reputation, focusing
primarily on Harder's criticisms over Schaffer's work as Training
Director and no longer being able to use the rank of lieutenant.
See Schaffer Aff. at ¶ 2. Both Plaintiffs seek, as part of
their motion for a preliminary injunction, to have negative
reports and admonitions removed from their personnel files.
In the context of adverse employment action, adverse personnel
reports, loss of reputation, reassignment of responsibilities,
and personal humiliation are insufficient to constitute the
"irreparable harm" necessary to obtain a preliminary injunction.
See Sampson v. Murray, 415 U.S. 61, 89-91, 94 S.Ct. 937, 39
L.Ed.2d 166 (1974) (holding that complaint alleging that
Plaintiff "might be deprived of her income for an indefinite
period of time, that spurious and unrebutted charges against her
might remain on the record, and that she would suffer the
embarrassment of being wrongfully discharged in the presence of
her co-workers" did not constitute irreparable injury for purpose
of injunctive relief); Stewart v. United States Immigration and
Naturalization Serv., 762 F.2d 193, 199-200 (2d Cir. 1985);
Ahmad, 18 F. Supp.2d at 248-49 (citing Sampson, 415 U.S. at
89, 94 S.Ct. 937); Clarke v. The City of New York, 1998 WL
at *5 (E.D.N.Y. July 1, 1998) (citing Brown v. New York City
Health & Hosps. Corp. Emergency Med. Serv., 1996 WL 68558, at *3
(E.D.N.Y. Feb.5, 1996) ("[H]umiliation and damage to an
employee's reputation . . . will rarely constitute sufficient
grounds for irreparable injury to justify reinstatement."));
Marano v. New York City Transit Auth., 1993 WL 17434, at *2
(E.D.N.Y. Jan.19, 1993); Rao v. New York Health & Hosps. Corp.,
1990 WL 201662, at *5 (S.D.N.Y. Dec.6, 1990), aff'd,
946 F.2d 883 (2d Cir. 1991), cert. denied, 502 U.S. 1040, 112 S.Ct. 891,
116 L.Ed.2d 794 (1992); Snead v. Burstein, 635 F. Supp. 808, 812
(N.D.N.Y. 1986). Moreover, Plaintiffs here have not alleged any
facts or circumstances to justify a finding that the
circumstances surrounding Plaintiffs' alleged demotions and
reassignments "are so extraordinary and depart so far from the
normal situation." Brown, 1996 WL 68558, at *3; see also
Sampson, 415 U.S. at 92 n. 68, 94 S.Ct. 937. Because restoration
of previous responsibilities and/or reassignment, removal of
adverse reports and admonitions issued since Harder took office,
and money damages can make Plaintiffs whole for any reputation
loss and humiliation suffered during the pendency of the
litigation, Plaintiffs' injuries are "plainly reparable,"
Savage, 850 F.2d at 68, and, thus, insufficient to warrant
Notably, the retaliatory acts of which Plaintiffs complain stem
from Plaintiffs' opposition to Harder's candidacy for Sheriff and
opposition to certain contributions to Harder's campaign. See
Pls. Mem. of Law at 1-3. Any alleged "chill" to Plaintiffs' First
Amendment rights occurred during the November 1998 election.
Indeed, Plaintiffs do not contend that their First Amendment
rights are currently being "chilled," or will likely be "chilled"
in the near future; rather, they generally allege that Harder's
actions stem from Plaintiffs' vocal opposition to Harder in the
past election, which will have a "chilling effect on the rights
of public officials," see Pls. Mem. of Law at 3, given Harder's
position as the chief law enforcement officer of Broome County.
See, e.g., American Postal Workers Union v. United States Postal
Serv., 766 F.2d 715, 722 (2d Cir. 1985), cert. denied,
475 U.S. 1046, 106 S.Ct. 1262, 89 L.Ed.2d 572 (1986) ("[A]ppellees
merely make the conclusory assertion that Danko's discharge has
`chilled the will of the postal workers in Connecticut, and their
elected officials.'"). Plaintiffs, however, have not produced any
evidence that other employees of the Sheriff's Department have
had their speech "chilled" as a result of Harder's actions.
Moreover, as the Second Circuit stated in American Postal
[W]e fail to understand how a chilling of the right
to speak or associate could logically be thawed by
the entry of an interim injunction, since the
theoretical chilling of protected speech and union
activities stems not from the interim discharge, but
from the threat of permanent discharge, which is not
vitiated by an interim injunction.
766 F.2d at 722; see also Savage, 850 F.2d at 68; Costello,
767 F. Supp. at 77.
Accordingly, the Court is not convinced that a preliminary
injunction would serve to thaw any alleged "chill."
Furthermore, Plaintiffs' considerable delay in initiating the
instant action and seeking injunctive relief further weighs
against a finding of irreparable harm. As the Second Circuit
noted in Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d
Preliminary injunctions are generally granted under
the theory that there is an urgent need for speedy
action to protect the plaintiffs' rights. Delay in
seeking enforcement of those rights, however, tends
to indicate at least a reduced need for such drastic,
speedy action. . . . Although a particular period of
delay may not rise to the level of laches and thereby
bar a permanent injunction, it may still indicate an
absence of the kind of irreparable harm required to
support a preliminary injunction.
Thus, a plaintiff's delay in commencing a lawsuit seeking
protection of his constitutional rights tends to negate a finding
of immediate and irreparable harm necessary for the issuance of a
preliminary injunction. See, e.g., Tough Traveler, Ltd. v.
Outbound Prods., 60 F.3d 964, 968 (2d Cir. 1995) (denying
preliminary injunction where plaintiff waited nine months to
initiate lawsuit and four more months before moving for a
preliminary injunction) (citing Citibank, N.A., 756 F.2d at
276); Majorica, S.A. v. R.H. Macy & Co., Inc., 762 F.2d 7
(2d Cir. 1985) (per curiam) ("Lack of diligence, standing alone,
may . . . preclude the granting of preliminary injunctive relief,
because it goes primarily to the issue of irreparable harm rather
than occasioned prejudice."); Costello, 767 F. Supp. at 78
(collecting cases); Railroad P.B.A. of the State of New York,
Inc. v. Metro-North Commuter R.R., 699 F. Supp. 40, 43 (S.D.N Y
1988) ("[P]laintiff's delay in commencing this lawsuit suggests
its own doubts as to the severity of harm at hand.").
As noted earlier, Plaintiffs' Complaint alleges numerous
retaliatory acts by Defendant Harder immediately after he
assumed his position as Sheriff of Broome County on January 1,
1999, following Harder's election to that position in November
1998. Indeed, many of the retaliatory acts of which Plaintiffs
complain began as early as January 1999 and continued throughout
the months that followed. See Pls. Mem. of Law at 1 ("The
retaliation has continued consistently since the day the
defendant Sheriff took office. . . ."); Affidavit of Richard
Wallikas, at ¶¶ 4-6; Affidavit of Raymond Schaffer ("Schaffer
Aff."), at ¶¶ 19-27. Notably, Schaffer acknowledges that shortly
after Harder won the election on November 3, 1998 (and before
Harder actually took office), Harder "made it unequivocally clear
that retaliatory measures would be taken against Wallikas and
others who supported Wallikas' bid for Sheriff. . . ." Schaffer
Aff. at ¶ 13. Thus, although Plaintiffs first became aware of
Harder's allegedly retaliatory actions immediately after the
November 1998 election, Plaintiffs did not commence the instant
action until August 1999, some seven months after Sheriff Harder
officially took office, and nine months after the election.
Moreover, Plaintiffs filed the instant preliminary injunction
motion in November 1999, almost two months after the Court denied
Plaintiffs' motion by Order to Show Cause seeking a TRO and
preliminary injunction based on the same allegations and events.
In total, Plaintiffs bring the instant motion for a preliminary
injunction ten months after defendant Harder allegedly began
retaliating against Plaintiffs in his capacity as Sheriff, and
one year after Plaintiffs first became aware of Harder's alleged
"unequivocal" intention to retaliate against Plaintiffs for their
roles in the November 1998 election for Broome County Sheriff.
Significantly, Plaintiffs do not allege that their delay was
attributable to Defendants' actions or a need to further
investigate the retaliatory acts alleged in the Complaint. See,
e.g., Tough Traveler, Ltd., 60 F.3d at 968. Under these
circumstances, Plaintiffs' inaction demonstrates their lack of
diligence in "press[ing] for a speedy adjudication of the merits
of [their] claims." Charette, 159 F.3d at 757. Accordingly,
Plaintiffs' considerable delay in bringing this action
and making the instant motion, coupled with the fact that
Plaintiffs can be adequately compensated by an award of monetary
damages, removal of adverse personnel reports placed in their
files after Harder took office, and restoration to the positions
and responsibilities they held prior to the election if
Plaintiffs prevail on their claims, weighs against a finding of
irreparable harm. See id.; Harford, 1999 WL 615190, at *2-*3;
Costello, 767 F. Supp. at 76-78; Railroad P.B.A. of the State
of New York, Inc., 699 F. Supp. at 43.
For the foregoing reasons, Plaintiffs' motion for a Preliminary
Injunction is DENIED.
IT IS SO ORDERED.