United States District Court, N.D. New York
DEREK A. HEYLIGER, Plaintiff,
JAMES TROMBLEY, et al., Defendants.
A. HEYLIGER 12-B-0269 Plaintiff, pro se.
ERIC T. SCHNEIDERMAN New York Attorney General Attorney for
Defendants HELENA LYNCH, ESQ. Ass't Attorney General.
DECISION AND ORDER
A. MORDUE, Senior United States District Judge.
action was brought pro se by plaintiff Derek A. Heyliger in
August 2016. Dkt. No. 1. Plaintiff, who is presently confined
at Upstate Correctional Facility, asserts claims arising out
of an incident which occurred at Clinton Correctional
Facility on December 3, 2013.
review of the complaint in accordance with 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b), Magistrate Judge
Thérèse Wiley Dancks concluded that a response
to plaintiff's Eighth Amendment excessive force and
failure to intervene claims against defendants was required.
Dkt. No. 7.
answer to the complaint was filed on behalf of defendants on
December 2, 2016. Dkt. No. 24. Discovery is ongoing.
See Dkt. No. 26 (Mandatory Pretrial Discovery and
Scheduling Order, Dancks, M.J.). Plaintiff recently filed a
motion for leave to file an amended complaint. Dkt. No.
before the Court is a letter motion from plaintiff seeking
preliminary injunctive relief. Dkt. No. 28.
injunctive relief "'is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by
a clear showing, carries the burden of persuasion.'"
Moore v. Consol. Edison Co. of New York, Inc., 409
F.3d 506, 510 (2d Cir. 2005) (quoting Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997)). "In general,
district courts may grant a preliminary injunction where a
plaintiff demonstrates 'irreparable harm' and meets
one of two related standards: 'either (a) a likelihood of
success on the merits, or (b) sufficiently serious questions
going to the merits of its claims to make them fair ground
for litigation, plus a balance of the hardships tipping
decidedly in favor of the moving party.'"
Otoe-Missouria Tribe of Indians v. New York State
Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir.
2014) (quoting Lynch v. City of N.Y., 589 F.3d 94,
98 (2d Cir. 2009) (internal quotation marks omitted)).
However, when the moving party seeks a "mandatory
preliminary injunction that alters the status quo by
commanding a positive act, " the burden is "even
higher." Cacchillo v. Insmed, Inc., 638 F.3d
401, 406 (2d Cir. 2011) (citing Citigroup Global Mkts.,
Inc. v. VCG Special Opportunities Master Fund Ltd., 598
F.3d 30, 35 n.4 (2d Cir. 2010) (internal quotation marks
omitted)). Thus, a mandatory preliminary 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." Citigroup Global Mkts.,
598 F.3d at 35 n.4 (internal quotation marks
motion, plaintiff describes a recent encounter he had with
defendant C.O. Trombley, who now works at Upstate
Correctional Facility. Dkt. No. 28 at 1-2. Plaintiff states
that C.O. Trombley delivered legal materials plaintiff had
requested from the facility law library to plaintiff's
cell. While passing the materials through the feed-up slot in
plaintiff's cell door, C.O. Trombley "smiled at
Plaintiff then said 'So when are we going to
trial.'" Id. at 1. Plaintiff contends that
it is improper for C.O. Trombley to ask plaintiff legal
questions about this case and to handle plaintiff's legal
materials, and asks that C.O. Trombley be
"reprimanded." Id. at 1-2. Plaintiff also
claims that he feels intimidated by C.O. Trombley and
requests that he be transferred to a different correctional
facility "based on the substantial risk to his safety at
this facility." Id.
oppose plaintiff's motion and urge its denial. Dkt. No.
counsel correctly states, it is the Department of Corrections
and Community Supervision, and not this Court, which
determines where plaintiff will be housed during his period
of incarceration. See Dkt. No. 29 at 7; see also
Olim v. Wakinekoma, 461 U.S. 238, 248-49 (1983) (inmates
have no right to be confined in a particular state or
particular prison within a given state); Montayne v.
Haymes, 427 U.S. 236, 243 (1976) (New York state
prisoners have no right to incarceration at a particular
prison facility). Plaintiff's desire to be confined in a
different correctional facility, no matter how sincere, is
not sufficient to warrant the requested judicial relief.
light of his pro se status, the Court has considered whether
plaintiff has made a showing sufficient to warrant the
issuance of any form of judicial relief regarding his
confinement at Upstate Correctional Facility and concludes
that he has not. In so ruling, the Court finds that plaintiff
has not demonstrated that he is likely to suffer imminent
irreparable harm if the requested relief is not granted.
While mistreatment of any kind is not condoned,
plaintiff's allegations regarding C.O. Trombley's
conduct do not suffice to plausibly suggest that plaintiff
faces an actual imminent injury from this defendant. Rather,
plaintiff alleges only that "the possibility of
retaliatory assault or fabricated misbehavior report
infractions" exists. Dkt. No. 28 at 2. Plaintiff's
concern that C.O. Trombley might physically harm or otherwise
mistreat him is purely speculative and, therefore, patently
insufficient to make the showing ...