United States District Court, S.D. New York
OPINION AND ORDER
ABRAMS, UNITED STATES DISTRICT JUDGE.
Thomas Patrick Olsen brings this petition for a writ of
habeas corpus challenging his state-law convictions for
attempted first-degree rape, first-degree sexual abuse, and
second-degree assault. Before the Court is Olsen's motion
for a preliminary injunction, temporary restraining order,
and an order requiring Respondents to produce documents and
witnesses for examination. For the reasons set forth below,
Olsen's motion is denied.
November 3, 2011, a jury convicted Olsen of attempted
first-degree rape, first-degree sexual abuse, and
second-degree assault in the Supreme Court of New York. Pet.
at 1 (Dkt. 1). On March 28, 2012, the state court sentenced
Olsen to six years in prison with ten years of post-release
supervision. See Pet. at 2.
then petitioned for a writ of habeas corpus in state court,
which the Appellate Division of the Supreme Court of New
York, First Judicial Department denied in a summary order on
May 29, 2012. Id. at 4. Olsen also filed a direct
appeal to the Appellate Division, which unanimously affirmed
his conviction on March 17, 2015. See People v.
Olsen, 2 N.Y.S.3d 902, 903 (1st Dep't 2015); see
also Pet. at 2. The Appellate Division held, inter
alia, that "[t]he verdict was supported by legally
sufficient evidence and was not against the weight of the
evidence, " and that "[t]here is no basis for
disturbing the jury's credibility determination." 2
N.Y.S.3d at 903. The Appellate Division also found that
Olsen's "ineffective assistance of counsel claims
are unreviewable on direct appeal because they involve
matters not reflected in, or fully explained by, the record,
" but that, "[i]n the alternative, to the extent
the existing record permits review, [Olsen] received
effective assistance under the state and federal
standards." Id. On January 20, 2016, the New
York Court of Appeals denied Olsen leave to appeal in a
summary order. See People v. Olsen, 47 N.E.3d 99
(N.Y. 2016); see also Pet. at 2.
6, 2016, Olsen filed this habeas petition. In the petition,
Olsen asserts eleven claims: (1) he was denied due process on
direct appeal because the Appellate Division did not hold a
reconstruction hearing after the trial court was unable to
locate his case file; (2) the prosecution failed to
investigate the victim's psychiatric history; (3) the
evidence supporting the jury's verdict was legally
insufficient; (4) he was denied the right to a speedy trial;
(5) the prosecution presented false evidence; (6) the trial
court failed to instruct the jury on missing evidence; (7)
his trial counsel rendered ineffective assistance; (8) the
prosecution violated his due process rights under Brady
v. Maryland, 373 U.S. 83 (1963) by failing to disclose
evidence of the victim's medical history; (9) the
prosecution violated his Confrontation Clause rights by
failing to disclose the victim's criminal history; (10)
the Appellate Division engaged in misconduct by appointing an
appellate judge's relative to serve as his counsel and by
denying his counsel access to the case file; and (11) he was
denied the opportunity to appear at a court hearing.
See Pet. 5-24. On August 11, 2016, Olsen was
released on parole. See Pet'r. Aff. in Supp. of
Mot. ¶ 10 ("Pet'r Aff.") (Dkt. 13).
September 28, 2016, Olsen filed a motion for a preliminary
injunction, temporary restraining order, and discovery order.
See Notice of Mot. ¶ 1 (Dkt. 13). Olsen's
motion for a preliminary injunction and temporary restraining
order seeks to enjoin Respondents from enforcing a supervised
release condition that requires him to remain drug-free.
See Pet'r Aff ¶¶ 16-17. Olsen's
motion for a discovery order requests that the Court order
Respondents to produce police records and transcripts and to
make trial witnesses and other individuals available for
examination. See Notice of Mot. ¶2; Pet'r
Aff. ¶¶30-32. On October 4, 2016, Olsen also filed
a letter asking the Court to "issue an immediate
Injunction" enjoining Respondents from preventing him
from attending his daughter's wedding in "early
October 2016." See Dkt. 14.
October 14, 2016, in response to the Court's order
directing a response, Respondents submitted a letter opposing
Olsen's motions for injunctive relief. See Dkt.
17. On January 27, 2017, Respondents submitted a letter
opposing Olsen's request for discovery. See Dkt.
42. Olsen submitted a responsive letter on February 13, 2017.
See Dkt. 43.
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. N.Y.
State Dep 't of Fin. Servs., 769 F.3d 105, 110 (2d
Cir. 2014) (quoting Lynch v. City of New York, 589
F.3d 94, 98 (2d Cir. 2009)). "This two-track rule,
however, is subject to an exception: A plaintiff cannot rely
on the 'fair-ground-for- litigation' alternative to
challenge 'governmental action taken in the public
interest pursuant to a statutory or regulatory
scheme.'" Id. (quoting Plaza Health
Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.
1989)); see also Friends of the E. Hampton Airport, Inc.
v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016);
Hardy v. Fischer, 701 F.Supp.2d 614, 618-19
(S.D.N.Y. 2010) (explaining that this "more rigorous
standard" applies in the context of habeas petitions).
Under any standard, a "preliminary injunction is an
extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing,
carries the burden of persuasion." Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (per curiam)
(emphasis in original) (quotation marks omitted).
addition, the Second Circuit has held that a district court
lacks jurisdiction to issue "preliminary injunctive
relief where a motion for a preliminary injunction
"presents issues which are entirely different from those
which were alleged in [the] original complaint."
Stewart v. INS, 762 F.2d 193, 199 (2d Cir. 1985);
see also Pac. Radiation Oncology, LLCv. Queen's Med.
Ctr, 810 F.3d 631, 633 (9th Cir. 2015) ("When a
plaintiff seeks injunctive relief based on claims not pled in
the complaint, the court does not have the authority to issue
an injunction."). That is because, as the Fourth Circuit
has explained, the "purpose of interim equitable relief
is to protect the movant, during the pendency of the action,
from being harmed or further harmed in the manner in which
the movant contends it was or will be harmed through the
illegality alleged in the complaint." Omega World
Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16
(4th Cir. 1997). "Thus, a preliminary injunction may
never issue to prevent an injury or harm which not even the
moving party contends was caused by the wrong claimed in the
underlying action." Id. Rather, "a party
moving for a preliminary injunction must necessarily
establish a relationship between the injury claimed in the
party's motion and the conduct asserted in the
complaint." Devose v. Herrington, 42 F.3d 470,
471 (8th Cir. 1994) (per curiam); see also Pac. Radiation
Oncology, 810 F.3d at 636 (holding that a party seeking
a preliminary injunction must establish "a sufficient
nexus between the claims raised in a motion for injunctive
relief and the claims set forth in the underlying complaint
itself); accord Colvin v. Caruso, 605 F.3d 282, 300
(6th Cir. 2010); Little v. Jones, 607 F.3d 1245
(10th Cir. 2010); Martin v. Keitel, 205 F.App'x
925, 929 (3d Cir. 2006) (unpublished); Liner v.
Fischer, No. 1 l-CV-6711 (PAC) (JLC), 2013 WL 1832316,
at *5 (S.D.N.Y. May 2, 2013).
Preliminary Injunction and Temporary Restraining
motion for a preliminary injunction and temporary restraining
order seeks to enjoin Respondents from enforcing a condition
of his supervised release that requires him to remain
drug-free. See Pet'r Aff. ¶¶ 16-17.
Olsen argues that Respondents have made this condition
impossible to satisfy by requiring him to reside at a
homeless shelter known for housing active marijuana users.
See id.. ¶¶ 14, 16, 21. Olsen argues that,
as a result, this parole condition ...