The opinion of the court was delivered by: Seybert, District Judge
Plaintiff Kevin Jefferson, a pro se prisoner*fn1, has moved for a preliminary injunction precluding Defendants from denying him prisoner grievance forms, and retaliating against him for invoking his First Amendment right to petition. Mr. Jefferson also seeks leave to amend his Amended Complaint to include the allegations contained in his preliminary injunction motion. For the following reasons, Mr. Jefferson's preliminary injunction motion is GRANTED IN PART AND DENIED IN PART. Mr. Jefferson's motion to amend is GRANTED.
Mr. Jefferson is a 45-year old man who is currently incarcerated in the Suffolk County Jail. He has spent much of his adult life in and out of prison. By his own recollection, he has been sent to the Suffolk County Jail "at least 12" times over the past twenty years. (Tr. 33.)
In January 2008, Mr. Jefferson commenced this action, alleging that officials at the Suffolk County Jail had denied him grievance forms, and retaliated against him for requesting grievances. On February 12, 2008, the Court granted Mr. Jefferson's motion for a temporary restraining order that precluded Defendants from committing these alleged wrongs. However, the Court subsequently denied Mr. Jefferson's preliminary injunction motion because, by the time the Court considered this motion, Mr. Jefferson had been released.
Around August 20, 2010, Mr. Jefferson returned to the Suffolk County Jail. On September 9, 2010, Mr. Jefferson got involved in an incident that led to his renewed preliminary injunction motion. Mr. Jefferson testified that, on the morning of September 9, he expressed a desire to use the law library. (Tr. 8.) In response, another inmate told him that their house had been called the day before, while they were "at yard" on a recreation period. (Id.) Mr. Jefferson approached a guard and complained about the house being called for law library when the prisoners were not around to hear that call. (Id. 8-9.) In response, the guard (apparently Sgt. Donald Sherrill) told him that there was nothing he could do, because the house was on lockdown that day. (Id. 9.) Sgt. Sherrill disputes this account, contending that that the house was not on lockdown and that he was actually preparing inmates to go to recreation when the incident occurred. (Id. 94.)
Mr. Jefferson then got into a dispute with Sgt. Sherrill, although the parties disagree about exactly what transpired. According to Mr. Jefferson, after being told that he could not go to the law library, he requested a grievance form. (Id. 10.) Mr. Jefferson claims that, in response, Sgt. Sherrill told another officer "give him a grievance form and write his ass up for inciting." (Id. 10-11.) Mr. Jefferson contends that he then told Sgt. Sherrill "I would reconsider that if I were you . . . I have [a] civil rights lawsuit pending against the jail and an injunction in place against retaliation." (Id. 11.) According to Mr. Jefferson, Sgt. Sherrill then said "since you've got a big mouth, now you're not getting a grievance form and you can roll your shit up," meaning that he was transferring Mr. Jefferson to another area of the prison. (Id. 11.) Mr. Jefferson claims that he then took his belongings and brought them to the guards for inspection. But, instead of inspecting his stuff, the guards proceeded to step on his property, including his food, while insulting him. (Id. 11-12.) Mr. Jefferson contends that an officer (again, apparently Sgt. Sherrill) then telephoned another area of the prison to tell them that he was "sending  an asshole. Lock him in for awhile . . . . And if you want to send him a message, that would be fine with me." (Id. 12.) Mr. Jefferson then claims that, while transferring him, various officers implicitly threatened him, with one unidentified officer asking, in a scary tone, "what is all this grievance shit about?" (Id. 14.) After his transfer, Mr. Jefferson claims that he again requested a grievance form, and was again refused, this time on the grounds that he had failed to raise a grievable issue. (Id. 14-15.)
Defendants, through the testimony of Sgt. Sherrill and Officer Wayne Whelahan, describe these events somewhat differently. According to Sgt. Sherril and Officer Whelahan, Mr. Jefferson began "shouting he needed to get back to law books," as they were trying to assemble his cell block for recreation. (Id. 60, see also 76-77.) Mr. Jefferson was told that, although he couldn't go to the law library that instant, he would have the opportunity later on if he filed a request slip. (Id. 61.) Mr. Jefferson continued to act belligerently, so Officer Whelahan asked him to sit on his bunk. (Id. 62.) Mr. Jefferson refused, shouting that he "need[ed] to get down to the mother fucking law books," that "you mother fuckers better get me down there or I'll see you in District Court," and that "I'm going to have your jobs." (Id. 62, 78-79.) Officer Whelahan and Sgt. Sherrill again told Mr. Jefferson to sit on his bunk, and again Mr. Jefferson refused. (Id. 62-63, 79.) According to Officer Whelahan and Sgt. Sherrill, Mr. Jefferson's behavior and demeanor caused a disturbance and interfered with their ability to assemble the inmates for recreation. (Id. 63.) Mr. Jefferson then requested a "fucking grievance." (Id. 79, see also 64.) Sgt. Sherrill instructed Officer Whelahan to give Mr. Jefferson a grievance form, and Officer Whelahan complied. (Id. 64, 79.) Once Mr. Jefferson received the grievance form, he sat on his bunk and calmed down. (Id. 65, 79.) Officer Sherrill then told Mr. Jefferson he was being transferred and should "roll up" his belongings, and wrote him up on disciplinary charges. (Id. 80.) Sgt. Sherrill participated in inspecting Mr. Jefferson's property before transfer, and denies ever stepping on his belongings. (Id. 81.) Mr. Jefferson was then transferred.
After these events, Sgt. Sherrill and Officer Whelahan drafted an Incident Report Form and brought Mr. Jefferson up on disciplinary charges. The Incident Report Form recounts the day's events consistent with Sgt. Sherrill's and Officer Whelahan's testimony. The charges consisted of six counts alleging violations of prison rules. Ultimately, Mr. Jefferson was convicted on four of these counts, but received a suspended sentence with respect to two of them. The two remaining counts each led to a 20-day term of disciplinary confinement, to be served consecutively (i.e., a total of 40 days disciplinary confinement).
For purposes of Mr. Jefferson's current claims, only one of these remaining counts is relevant: his discipline for a violation of prison rule 15.01. That rule proscribes discipline for "Threats. Verbal, written or gestured towards staff members or other inmates." (Tr. 96.) On cross-examination, Officer Sherrill acknowledged that he based this charge on Mr. Jefferson's threat to sue him and Officer Whelahan. (Id. 96.) According to Officer Sherrill, Mr. Jefferson's threat to sue violated rule 15.01 because it was an attempt "to manipulate the system, you give me what you want or you have to face lawsuits." (Id. 101.) Officer Sherrill conceded that actually filing a lawsuit would not violate rule 15.01, but articulated that "threatening staff with lawsuits to get what you want is different from filing a lawsuit in court." (Id. 102.) Officer Sherrill further commented that, in his opinion, a "threat" to sue another inmate could also violate rule 15.01 "depend[ing] on the circumstances," such as whether it was "within the officer's earshot." (Id. 104.)
I. Standard of Review for a Preliminary Injunction
In order to justify a preliminary injunction, a party must demonstrate: 1) irreparable harm absent injunctive relief; 2) either a likelihood of success on the merits, or a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the party's favor, and 3) that the public's interest weighs in favor of granting an injunction. Metropolitan Taxicab Bd. of Trade v. City of New York, 615 F.3d 152, 156 (2d Cir. 2010).*fn2 When, however, a party seeks a mandatory injunction that alters the status quo by commanding a positive act, the party must meet a higher standard. D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006). Specifically, "[t]he moving party must make a clear or substantial showing of a likelihood of success" on the merits. Id. (internal citations and quotations omitted). This standard is "especially appropriate when a preliminary injunction is sought against government." Id.
Here, read fairly, Mr. Jefferson largely seeks to alter the status quo by demanding that Defendants do certain things. However, as discussed below, the Court need not decide what preliminary injunction standard applies to what portions of Mr. Jefferson's relief. This is because Mr. Jefferson's unsuccessful claims fail under the ...