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Fox v. Anthony

July 15, 2010

ERSKINE EUGENE FOX PLAINTIFF,
v.
LASHAE ANTHONY, ET AL., DEFENDANTS .



The opinion of the court was delivered by: Andrew T. Baxter, Magistrate Judge

ORDER and REPORT-RECOMMENDATION

The Clerk has sent to the Court a civil rights complaint, together with an application to proceed in forma pauperis, an application for injunctive relief, and a motion for appointment of counsel, filed by pro se plaintiff, Erskine Eugene Fox. (Dkt. Nos. 1-4). Plaintiff, who is civilly committed in the Central New York Psychiatric Center ("CNYPC"), has not paid the filing fee for this action.

I. Complaint

In his complaint, plaintiff alleges, inter alia, that on September 8, 2009, defendants Anthony, Crouse, and Jones assaulted plaintiff and then used excessive force when placing him into "four-point" restraints after the assault had taken place. Compl. ¶¶ 1, 7-32. Plaintiff also alleges that defendant Charmaine Bill*fn1 denied plaintiff due process in connection with disciplinary sanctions imposed upon plaintiff. Compl. ¶ 2. Plaintiff claims that Drs. Maximillian and Sawyer failed to properly train and supervise the Secure Care Treatment Aides at CNYPC, that defendant Charmaine Bill failed to properly supervise and manage plaintiff's treatment, and that defendant Morgan failed to properly investigate the incident. Compl. ¶¶ 3-5, 39-43. Plaintiff seeks substantial monetary as well as injunctive relief. For a more complete statement of plaintiff's claims, reference is made to the complaint.

II. In Forma Pauperis (IFP)

Plaintiff has moved to proceed IFP in this action. (Dkt. No. 3). A review of plaintiff's application shows that his motion to proceed IFP may be granted.

III. Preliminary Injunction and/or Temporary Restraining Order ("TRO")

Plaintiff makes a motion for a TRO and/or preliminary injunctive relief. (Dkt. No. 2). Plaintiff asks that this court enjoin defendants LaShae Anthony, Frank Crouse, and Marques Jones from having any contact with plaintiff. Id. Rule 65 of the Federal Rules of Civil Procedure governs applications for temporary injunctive relief. Rule 65 provides that the court may issue a TRO without oral or written notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney verifies in writing any efforts made to give notice and why it should not be required.

FED. R. CIV. P. 65(b)(1)(A) & (B). TROs generally expire within ten days of the order unless the court extends the time or the adverse party consents to an extension. Id. 65(b)(2). The purpose of a TRO is to preserve the status quo and prevent irreparable harm until the court can consider the request for a preliminary injunction. Warner Bros., Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120. 1124 (2d Cir. 1989) (quoting Pan American World Airways, Inc. v. Flight Engineers' Int'l Ass'n, 306 F.2d 840, 842-43 (2d Cir. 1962)). Thus, although plaintiff states that he is asking for a TRO, this court will interpret plaintiff's request as also asking for a preliminary injunction.

The standard for either a TRO or a preliminary injunction is well-settled and requires a plaintiff to demonstrate irreparable harm, and either a likelihood of success on the merits or sufficiently serious questions going to the merits such as to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiff's favor. See Leibowitz v. Smith Barney, 863 F. Supp. 171, 173 (S.D.N.Y. 1994) (citing inter alia Local 1814, Int'l Longshoremen's Assn. AFL-CIO v. New York Shipping Assn., Inc., 965 F.2d 1224, 1228 (2d Cir. 1992)). The burden of proving that injunctive relief should issue rests entirely on the moving party. Fisher v. Goord, 981 F. Supp. 140, 167 (W.D.N.Y. 1997).

Plaintiff in this case is not asking to preserve the status quo. He is asking the court to issue a mandatory injunction, forbidding the defendants to have any contact with plaintiff because he fears that when they find out about this law suit, they will retaliate against him. When an individual seeks a mandatory injunction, he must show a "clear" or "substantial" likelihood of success on the merits. Id. Plaintiff must demonstrate that the harm is neither remote nor speculative, but actual and imminent. Id. at 168 (citing Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 989, 975 (2d Cir. 1989)). Plaintiff has submitted no evidence, other than his own speculation that defendants, who allegedly used excessive force on him once in September of 2009, will retaliate against him when they find out that he filed this law suit. The same claim could be made by any inmate who names corrections officers as defendants in any action.

The court would point out that plaintiff states that on September 10, 2009, he made a "formal complaint" to a member of "Risk Management." Compl. ¶ 38. Defendant Morgan investigated the issue, albeit not to plaintiff's satisfaction. Compl. ¶ 39-43. Clearly, defendants were aware that plaintiff filed an administrative complaint about them, and yet, it appears that there have been no further incidents. Plaintiff waited several months to file this action.*fn2 Plaintiff's fear of retaliation is ...


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