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Perry v. Fischer

January 23, 2008

KAREEM S. PERRY, PLAINTIFF,
v.
BRIAN S. FISCHER, COMMISSIONER, DEPARTMENT OF CORRECTION SERVICES AND ROBERT K. WOODS, SUPERINTENDENT, UPSTATE CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe, U.S. District Judge

DECISION and ORDER

The Clerk has sent to the Court a civil rights complaint, together with an application to proceed in forma pauperis, filed by plaintiff Kareem S. Perry, who is currently incarcerated at Upstate Correctional Facility. Dkt. Nos. 1, 2. Perry has also filed a motion for injunctive relief. Dkt. No. 4.

I. Complaint

In his pro se complaint, Perry alleges that defendants have failed to protect him from known harm in violation of his constitutional rights. Dkt. No. 1 at 7-13. For a more complete statement of Perry's claims, refer to the complaint.

II. In Forma Pauperis Application

As to Perry's in forma pauperis application (Dkt. No. 2), the Court finds that Perry may properly proceed with this matter in forma pauperis.

III. Injunctive Relief

In support of his motion for injunctive relief, Perry alleges that his life is in danger because he previously worked as an informant for the Department of Investigations, "which became public knowledge." Dkt. No. 4-2 at 1-2. Perry also alleges that "he has been subjected to a series of inmate assaults." Dkt. No. 4-3 at 2. Perry seeks a Court order directing the defendants to place Perry in protective custody. Dkt. No. 4.

The standard a court must utilize in considering whether to grant a request for injunctive relief is well-settled in this Circuit. As the Second Circuit noted in Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992), the movant must show: (a) irreparable harm and (b) either (1) a likelihood of success on the merits of the claim or (2) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunctive relief. Id. at 77 (affirming district court's denial of inmate's request for preliminary injunction); see also Roucchio v. LeFevre, 850 F. Supp. 143, 144 (N.D.N.Y. 1994) (McAvoy, C.J.) (adopting Report-Recommendation of Magistrate Judge that denied inmate's request for injunctive relief).

(a) Irreparable Harm

Irreparable harm is "'the single most important prerequisite for the issuance of a preliminary injunction.'" Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d Cir.1983) (quoting 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure, § 2948 at 431 (1st ed.1973)). "[T]he moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered." Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir.1990). "The 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." Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir.1995) (other citations omitted). "In the absence of a showing of irreparable harm, a motion for a preliminary injunction should be denied." See JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 80 (2d Cir.1990); Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir.1982).

In this case, Perry alleges that he has in the past been the victim of inmate assaults and alleges that, unless placed in protective custody, he will face future assaults. Perry relies upon speculation to assert that he will be subjected to future assaults. "The irreparable harm necessary to support injunctive relief must be 'actual and imminent,' not 'remote [or] speculative.'" Young-Flynn v. Wright,No. 05 Civ. 1488, 2007 WL 241332, at *7 (S.D.N.Y. Jan. 26, 2007) (citing Forest City Daly Hous., Inc. v. Town of N. Hempstead, 175 F.3d 144, 153 (2d Cir.1999)." 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) (DiBianco, M.J.) (citing Garcia v. Arevalo, No. 93-CV-8147, 1994 WL 383238 (S.D.N.Y. June 27, 1994)). Perry has failed to establish irreparable harm.

(b) Likelihood of Success On the Merits or Sufficiently Serious Questions Going to the Merits and a Blance of Hrdships Tpping Dcidedly Toward the Plaintiff

A party is also not entitled to injunctive relief unless there isalso proof of a likelihood of succeeding on the merits of a claim, or evidence that establishes sufficiently serious questions going to the merits of such a claim and a balance of hardships tipping decidedly toward the party seeking such relief. See Covino, 967 F.2d at 77. In the present case, Perry has submitted his own affidavit containing his request for injunctive relief and the reasons why he believes his request should be granted. Perry claims to have attached an exhibit for in camera review in support of his request for protective custody. Dkt. No. 4-3 at 8. No such document was submitted with his request. The only items attached in support of his request for protective custody include a letter from Perry to Superintendent Burge dated July 6, 2006 asking to be removed from Burge's facility*fn1 because Perry "received word that there is a plot to cocktail his cell" (Dkt. No. 4-3 at 10); a memorandum from CC T. Mootz to Deputy Superintendent Henderson of Elmira Correctional Facility, denying Perry's request for protective custody because Perry "was unable to identify anyone who threatened him or those who allegedly tried to cut him." (Id. at 11). Plaintiff also includes a series of documents from Upstate Correctional Facility including a Use of ...


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