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Jovan Fludd v. Brian Fischer

July 7, 2011

JOVAN FLUDD, PLAINTIFF,
v.
BRIAN FISCHER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION & ORDER

This matter is before the Court on Plaintiff's applications (Docket Nos. 3 & 11) for injunctive relief. Plaintiff seeks an Order transferring him from the "continuous, wicked, and blatant retaliatory acts [he is] experiencing from Defendant Superintendent Robert Kirkpatrick as he is desperately attempting to coerce the withdrawal of the above referenced action against him along with [Plaintiff's] complaint.." (Fludd Aff. (Docket No. 11) ¶ 2.) For the reasons stated below, the application is denied.

BACKGROUND

Plaintiff is an inmate at Wende Correctional Facility and is in the Special Housing Unit ("SHU"). He alleges that he has been denied running water for two to three days at a time and has been unable to eat dinner as a result of, "the tampering of [his] food with [sic] aggressive demands for the withdrawal of the above pending action against Defendant Superintendent Robert Kirkpatrick.." (Fludd Aff. ¶ 5.) Plaintiff contends that he has been harassed by Corrections Officers Christopher Czarneck, Michael Reuse, and Sergeant P. Connolly. (Id. ¶ 4.) He further alleges that these acts "are cautiously performed behind [his] cell (on the SHU catwalk) to avoid the eye of the audio and video recorder." (Id. ¶ 5.)

Additionally, Plaintiff is requesting an immediate prison transfer.

On February 16, 2011, Robert A. Kirkpatrick filed a declaration in which he denied he was trying to coerce Plaintiff into dismissing the lawsuit, saying, "[t]his is a total fabrication and I deny the allegation." (Kirkpatrick Decl. ¶ 3.) He also stated that, "Plaintiff has made three application for transfers from Wende Correctional Facility," all of which were considered by "DOCS Classification and Movement Department and denied." (Id. ¶ 4.) Additionally, counsel filed a memorandum of law arguing that Plaintiff's "papers allege harassment by non-parties-a sergeant and two (2) corrections officers-but no irreparable harm," and additionally argued that Plaintiff had not shown a likelihood of success on the merits of his lawsuit. (Docket No. 18, at 2.)

On February 25, 2011, Plaintiff filed an additional affidavit in support of his application. (Docket No. 19.) He repeats the allegations made in his earlier affidavit (Docket No. 11). He points out, "there is absolutely no lawful justification for the defendants' retaliatory acts against petitioner concerning food and water deprivation for the sole purpose of forcing petitioner to discontinue the pending civil suit against Defendant Kirkpatrick and nor have the defendants stated their interest for such acts." (Docket No. 19, at 4.)

INJUNCTION STANDARD

"A party seeking injunctive relief ordinarily must show: (a) that it will suffer irreparable harm in the absence of an injunction and (b) either (i) likelihood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33 (2d Cir.1995). In Tom Doherty, the Second Circuit also discussed the requirements for a mandatory injunction:

However, we have required the movant to meet a higher standard where:

(I) an injunction will alter, rather than maintain, the status quo, or (ii) an injunction 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..

1. Mandatory Injunctions

The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. See Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). A mandatory injunction, in contrast, is said to alter the status quo by commanding some positive act. See id. As noted above, this distinction is important because we have held that a mandatory injunction should issue "only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Id. (internal quotations and citations omitted); see also SEC v. Unifund SAL, 910 F.2d 1028, 1039 (2d Cir. 1990) (injunction going beyond preservation of status quo requires "a more substantial showing of likelihood of success"); Jacobson & Co. v. Armstrong Cork Co., 548 F.2d 438, 441 (2d Cir. 1977). The "clear" or "substantial" showing requirement -- the variation in language does not reflect a variation in meaning -- thus alters the traditional formula by requiring that the movant demonstrate a greater likelihood of success. See Unifund SAL, 910 F.2d at 1039..

Moreover, many mandatory injunctions can be stated in seemingly prohibitory terms. See, e.g., Unifund SAL, 910 F.2d at 1040 (imposing "substantial showing of likelihood of success" standard because "though the order is prohibitory in form, rather than mandatory, it ...


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