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Michael Hill 90-B-0732 v. Patrick Griffin

December 5, 2011

MICHAEL HILL 90-B-0732, PLAINTIFF,
v.
PATRICK GRIFFIN, ET AL., DEFENDANTS.



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

DECISION & ORDER

This matter is before the Court on Plaintiff's letter request for an Order directing that he, and his witness, be "placed in a secured facility, or environment where contact with staff will be monitored-or at least will be less hostile." Michael Hill letter to the Court (Apr. 24, 2011), at 4--5. For the reasons stated below, that application is denied.

BACKGROUND

On February 28, 2011, Plaintiff filed a verified complaint raising several claims primarily focused on his allegation that Defendants were denying him his First Amendment right to free exercise of his religion as a "Black African-American Hebrew Isrealite.." Compl. ¶ 25, ECF No. 1 (Feb. 28, 2011). He claims in the letter application that is the subject of this Decision and Order that his witness,

Joseph Marchese, whose affidavit was attached to the complaint served upon the defendants at Southport, was approached by recreation guards, block guards and Angela Bartlett*fn1 and threatened for it. He was intimidated and harassed to recant his statement. This is [a] clear violation of 42 U.S.C.A. § 1985(2). In addition he was written an illegal false misbehavior report as punishment and further threatened. Mr. Marchese was being drafted from "Southport" the day the report was filed, thus cuasing him to be returned form draft to the cell he was leaving. I know these acts was [sic] retaliation, because I myself was placed on Level 1 restricted unit, upon arriving there, I was told my buddy Marchese would be joining me.

Michael Hill ltr to the Court (Apr. 24, 2011) ¶ 1. Plaintiff also claims he was given a false misbehavior report based on false statements by "Washburn and Mackey*fn2 for the filing of this suit." Id. ¶ 2. Plaintiff claims that when he was found guilty of the misbehavior alleged in the report, he was "deliberately transferred to a facility supervised by the defendant Bezio, named in suit Hill v. Napoli, 09-CV-6546." Plaintiff further states that, "he [presumably Bezio] was aware I was on my way to facility.where in route one of my property bags was caused to come up missing." Plaintiff wrote that the property bag contained Bezio's answers to written interrogatories, as well as personal items, including sixteen books. Id. ¶¶ 2--3. Plaintiff states he is unable to "fully handle civil law suit matters, criminal appeals or (FOIL) request without mail, legal documents, or books." He also finds it difficult to read without his glasses. Id., at 4.

On May 23, 2011, Defendants filed a motion to dismiss. Notice of Motion to Dismiss, ECF No. 6 (May 23, 2011). Plaintiff filed a comprehensive 21-page response in opposition, complete with citations to case law and statutes. Notice of Motion in Opposition to Motion to Dismiss and for Sanction, ECF No. 14 (Jun. 2, 2011). In their motion, Defendants contend that Plaintiff has previously had three civil lawsuits dismissed and is subject to the "three strikes" rule of 28 U.S.C. § 1915(g).

STANDARDS OF LAW

Preimlinary Injunctive Relief

To obtain either a temporary restraining order or a preliminary injunction, the movant must make a showing of "(a) irreparable harm; and (b) 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." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc. ., 596 F.2d 70, 72 (2d Cir. 1979); see also, Jackson v. Johnson, 962 F. Supp. 391, 392 (S.D.N.Y.1997) ("In the Second Circuit, the standard for a temporary restraining order is the same as for a preliminary injunction.") (citations omitted). Preliminary injunctive relief "is an extraordinary remedy that will not be granted lightly." Jackson v. Johnson, 962 F. Supp. at 392 (citations omitted).

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" ...


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