The opinion of the court was delivered by: Siragusa, J.
This matter is before the Court on plaintiff's application for a temporary restraining order and preliminary injunction. In that regard, plaintiff claims that the defendants are violating his First Amendment constitutional rights to free speech and freedom of association in connection with their confiscation of written materials he possessed relating to an organization called the New Afrikan [sic] Maoist Party and its affiliate, the new Afrikan [sic] Brigade. Additionally, in a supplemental filing, plaintiff seeks injunctive relief directing that he be released from the special housing unit ("SHU"), where he was placed as a penalty for his possession of the confiscated written materials.
Defendants oppose plaintiff's applications and maintain that their seizure of the written materials in question as well as the consequent penalty, were reasonably related to a legitimate penological interest. Specifically, defendants maintain that the written materials in question evidenced that plaintiff was possessing and attempting to distribute material from an unauthorized organization and was, in fact, engaging in unauthorized organizational activity. Further, defendants contend that such conduct on plaintiff's part was an attempt to circumvent the rational review process contained in Department of Correctional Services ("DOCS") Directive 4760,*fn1 which they assert meets the constitutional requirements for reasonableness pursuant to the Supreme Court's decision in Turner v. Safley , 482 U.S. 78, 89 (1987).
After hearing plaintiff's testimony in open court, and hearing oral argument by both sides, the Court determines that plaintiff is not entitled to the injunctive relief he seeks.
STANDARD FOR MANDATORY INJUNCTIVE RELIEF
In most cases, a party seeking to obtain a preliminary injunction must establish that it will suffer irreparable harm in the absence of an injunction and demonstrate either (1) "a 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 the hardships tipping decidedly" in the movant's favor. Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 779-80 (2d Cir.1994) (quotation marks omitted); Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 314-15 (2d Cir.1982). Where a moving party challenges " 'government action taken in the public interest pursuant to a statutory or regulatory scheme,' " however, the moving party cannot resort to the "fair ground for litigation" standard, but is required to demonstrate irreparable harm and a likelihood of success on the merits. Able v. United States, 44 F.3d 128, 131 (2d Cir.1995) (per curiam) (quoting Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989)); see Catanzano v. Dowling, 60 F.3d 113, 117 (2d Cir.1995).
In some circumstances, an even higher standard applies. The moving party must make a "clear" or "substantial" showing of a likelihood of success where
(1) the injunction sought "will alter, rather than maintain, the status quo"- i.e., is properly characterized as a "mandatory" rather than "prohibitory" injunction; or (2) the injunction sought "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." Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir.1995).
Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996).
FIRST AMENDMENT RIGHTS OF A PRISONER
The First Amendment provides as follows: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The First Amendment is made applicable to the states through the Fourteenth Amendment.
School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 203, 215-16 (1963); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925). A prisoner is not automatically stripped of his First Amendment rights by virtue of his incarceration. See Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974); Pell v. Procunier, 417 U.S. 817, 822. As the Supreme Court held in Pell, a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Thus, challenges to prison restrictions that are asserted to inhibit First Amendment interests must be analyzed in terms of the legitimate policies and goals of the corrections system, to whose custody and care the prisoner has been committed in accordance with due process of law.
Pell, 417 U.S. at 822. Further, the Supreme Court explained in Turner, when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if "prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations." Jones v. North Carolina Prisoners' Union, 433 U.S. , at 128 . Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the ...