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Nicholas Nunez, Cheryl Ports-Kelley v. andrew Cuomo

August 24, 2011


The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge:


On July 18, 2011, Plaintiffs*fn1 Nicholas Nunez, Cheryl Ports-Kelly, Evangeline Phillips, Troy Booth, Steven Dorsey, Rameses Rodriguez, Herbert Reed and Jose Sanches, all African-American, Asian-American or Latino correction officers employed by the Department of Corrections and Community Supervision ("DOCCS"), filed a complaint and motions for a temporary restraining order ("TRO")*fn2 pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII") and 42 U.S.C. §§ 1981, 1983 and 1985, against Defendant Andrew Cuomo in his individual and official capacity. In their motions, Plaintiffs request that the court prevent Defendant from shutting down Arthur Kill Correctional Facility ("Arthur Kill"), alleging his decision to close the facility was race-based in violation of Plaintiffs' rights to equal protection under the Fourteenth Amendment to the United States Constitution. Defendant opposed the motions contending that Plaintiffs have failed to make a showing of irreparable harm and are unlikely to succeed on the merits. For the reasons set forth below, Plaintiffs' motions for a TRO are denied.


On June 30, 2011, Defendant announced the closing of three medium security and four minimum security correctional facilities in New York, including Arthur Kill, which is a medium security facility located in Staten Island.*fn3 (See Fischer Decl. Ex. B.) The closures were ordered pursuant to Chapter 57, Part C of the Laws of 2011 enacted by the State Legislature, effective April 1, 2011, which authorized Defendant to close correctional facilities " . . . as he determines to be necessary for the cost-effective and efficient operation of the correctional system." (See Fischer Decl. at ¶ 6-7.)

Plaintiffs seek a TRO to prevent the closure of Arthur Kill because they claim that the closure will cause them irreparable harm, as it will force them to either transfer to a correctional facility outside of New York City or lose their jobs. Specifically, Plaintiffs argue that: (i) a transfer or loss of employment will cause major disruption to their daily lives and their families' lives; (ii) a transfer will result in an increase in costs due to relocation or a longer commute; and (iii) a transfer will result in the loss of location adjustment compensation ("location pay").

Plaintiffs further allege that Defendant's decision to close Arthur Kill was based on discriminatory policies, procedures and practices utilized by Defendant to "avoid [the] loss of jobs to the larger white unionized workforce of ("DOC[C]S") employees in the Northern Up-State New York Counties while inflicting grossly disproportionate, and disparate socio-economic injury upon members of [Plaintiffs'] class." (Compl. at ¶ 13.) Plaintiffs argue that closing Arthur Kill, while maintaining other medium-security facilities in Northern New York Counties, where the predominately white prison labor force resides, "evidences . . . a racially disparate policy in its decision making in regards to ("DOC[C]S") employees in areas that have a significant number of Black, and Latino employees." (Id.) Plaintiffs also allege that "[D]efendant had been made aware of the discriminatory, and disparate treatment [Plaintiffs] would suffer" from the closure of Arthur Kill. (Id. at ¶ 10.)

In contrast, Defendant argues that Plaintiffs will not suffer irreparable harm, because they have the option to be transferred to another facility, which will be assigned according to Plaintiffs' stated preferences and the seniority of those officers who wish to be transferred. (See August 4, 2011 Declaration of Daniel F. Martuscello III ("Martuscello Decl. I") at ¶¶ 6-11.) In addition, DOCCS will provide a list of state housing available in the new locations and information regarding reimbursement for relocation. (See id. at ¶ 13; 8/12/11 Tr. at 38:5-39:8.) Defendant further counters that any discrepancy in location pay accounts for the lower cost of living in the counties located outside of New York City. (See 8/12/11 Tr. at 32:11-33:12.) Defendant also argues that Plaintiffs have failed to show any racial motive or disparate impact, especially since five of the seven facilities slated to close due to budgetary concerns are located north of New York City, which employs mostly white correction officers. (See Fischer Decl. at ¶¶ 5, 8; Declaration of Wilfredo Perez Jr. ("Perez Decl.") at ¶ 13.) The purpose of the closing, far from having discriminatory animus, was "to consolidate the state's correctional facilities based on a declining inmate population[, which would] provid[e] significant savings to New York state taxpayers." (Fischer Decl. Ex. B.) The closures would eliminate approximately 3,800 unneeded and unused beds, thereby saving taxpayers $72 million in 2011-12 and $112 million in 2012-13. (Id.)

The court held a hearing on August 12, 2011 regarding Plaintiffs' request for a TRO.*fn4

After the hearing, the court gave Plaintiffs leave to file documents relating only to Defendant's alleged discriminatory intent. (See 8/12/11 Tr. at 81:11-82:1; 88:4-88:6; 89:3-89:6.) The court notes that, despite its explicit instructions, Plaintiffs seem to have re-briefed their arguments and included affidavits and exhibits that address aspects of their claims other than Defendant's alleged discriminatory intent. Notwithstanding Plaintiffs' disregard of the court's explicit directive, the court has reviewed all of the submissions and taken them into consideration in reaching its decision.


I.Legal Standard

"[A] preliminary injunction is an extraordinary remedy that should not be granted as a routine matter," and "[w]hether to grant a preliminary injunction or not rests in the sound discretion of the district court." JSG Trading Corp. v. Tray-Wrap, Inc.,917 F.2d 75, 79-80 (2d Cir. 1990). The standard for obtaining a preliminary injunction and a TRO are the same. See Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) ("It is well established that in this Circuit the standard for an entry of a TRO is the same as for a preliminary injunction.")

In order to justify the issuance of a TRO, the movant must show irreparable harm. Citigroup Global Mkts. Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010). "Irreparable harm is injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages." Forest City Daly Housing, Inc. v. Town of N. Hempstead, 175 F.3d 144, 153 (2d Cir. 1999) (citations and internal quotation marks omitted); see also Shady v. Tyson, 5 F. Supp. 2d 102, 106 (E.D.N.Y. 1998)("Essential to a showing of irreparable harm is the unavailability or at least inadequacy of a money damages award."). The applicant must show that irreparable harm is "likely" to occur, not simply that there is a "possibility" of irreparable harm. Shady, 5 F. Supp. 2d at 106.

Moreover, the movant generally also must show "either (1) 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 hardships tipping decidedly toward the party requesting the preliminary relief." Citigroup Global Mkts. Inc., 598 F.3d at 35. However, when, as in the instant case, "the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction should be granted only if the moving party meets the more rigorous likelihood-of-success standard." Metro. Taxicab Bd. of Trade v. City of New York, 615 F.3d 152, 156 (2d Cir. 2010), cert. denied, 131 S. Ct. 1569 (quoting County of Nassau v. Leavitt, 524 F.3d 408, 414 (2d Cir. 2008)); see also Lynch v. City of New York, 589 F.3d 94, 98 (2d Cir. 2009); N.Y.C. Environmental Justice Alliance v. Giuliani, 214 F.3d 65, 68 (2d Cir. 2000). Plaintiffs, in their memorandum of law, appear to erroneously apply the general preliminary injunction standard, relying on the "fair ground for litigation" prong set forth above. There can be no ...

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