The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge
Presently before this Court a request for injunctive relief submitted by plaintiff Jeffrey A. Walker. Dkt. No. 7. Walker has also submitted an amended complaint as of right pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,*fn1 and a motion for a writ of attachment. Dkt. Nos. 18 and 21. Defendants have responded in opposition to the motion for a writ of attachment. Dkt. No. 23.
A preliminary injunction is an extraordinary remedy that should not be granted as a routine matter. Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986). In most cases, the party seeking the injunction must show (a) a threat of irreparable injury if the injunction is not granted and (b) either (1) a probability of success on the merits or (2) sufficiently serious questions going to the merits of the claims to make them a fair ground of litigation, and a balance of hardships tipping decidedly in favor of the moving party. Burgess v. Friedmann, No. 9:05-CV-0379, 2005 WL 3531459, at *2 (N.D.N.Y. Dec. 22, 2005) (citing Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996)). However where a movant seeks relief which will alter, rather than maintain, the status quo, or which will provide him with substantially all the relief sought, the injunction sought is properly characterized as mandatory rather than prohibitory. Burgess, 2005 WL 3531459, at *2. A party seeking a mandatory injunction must make a "clear" or "substantial" showing of the likelihood of success, as well as irreparable harm, should the injunction not be granted. Id. (citing Jolly, 76 F.3d at 473-74). Accordingly, the Court treats the instant motion as seeking mandatory relief rather than prohibitory relief because plaintiff seeks relief which will alter the status quo or which will provide him with substantially all the relief sought; therefore plaintiff must make a clear or substantial showing of the likelihood of success.
In support of this application, plaintiff contends that he will be irreparably harmed if the Court fails to issue an order requiring defendants to return all of Walker's legal and personal papers and to refrain from further retaliation against him. Dkt. No. 7.
A. Return of Legal Papers
Even assuming, arguendo, that Walker has established irreparable harm with respect to the alleged confiscation of his legal papers, see Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984); Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir. 1991) (irreparable harm exists where deprivation of rights under First Amendment alleged) (citation omitted),*fn2 the Court finds that Walker has wholly failed to establish the second element required concerning this application. With the exception of Walker's self-serving affidavit wherein Walker states, in conclusory terms, that defendants have taken his legal papers, Walker has provided the Court with no evidence which supports, in any way, any of the allegations asserted in his request for injunctive relief. See Dkt. No. 7.
With respect to stopping defendants' future retaliation against Walker, the Court notes that allegations of future injury without more do not establish a real threat of injury. Gibson v. Walker, 95-CV-1649, (N.D.N.Y. December 7, 1995) (Di Bianco, M.J.) (citing Garcia v. Arevalo, No. 93-CV-8147, 1994 WL 383238 (S.D.N.Y. June 27, 1994)). Walker requests that defendants "refrain from further retaliation" against him. Dkt. No. 7 at 3. Walker's contention of future retaliation without more are too speculative to establish irreparable harm. Additionally, even if Walker could establish irreparable harm as to this aspect of his motion, he has again submitted no evidence, aside from his own allegations, that his claims of retaliation are meritorious.
After thoroughly considering all of the papers before it concerning the present application, the Court finds that Walker has failed to establish that he will suffer irreparable harm with respect to his claims that his personal papers were confiscated or that he fears future retaliation. Moreover, Walker has failed to prove either a likelihood of success on the merits of his any of his claims or sufficiently serious questions going to the merits of same and a balance of hardships tipping decidedly toward him. Therefore, the Court denies Walker's motion for injunctive relief.
The proposed amended complaint adds an additional defendant and asserts allegations of wrongdoing against him in relation to Walker's claims that he was denied access to the court and retaliated against for exercising his right to file grievances and complaints. Dkt. ...