United States District Court, N.D. New York
MARK A. LAPIERRE, Plaintiff,
E. LAVALLEY, et al., Defendants.
A. LAPIERRE Plaintiff, pro se Bare Hill Correctional Facility
ERIC T. SCHNEIDERMAN New York State Attorney General Attorney
W. HICKEY, ESQ. Ass't Attorney General
DECISION AND ORDER
D'AGOSTINO United States District Judge
Mark A. LaPierre commenced this action by filing a pro se
civil rights complaint pursuant to 42 U.S.C. § 1983
alleging that the defendants violated plaintiff's
constitutional rights. Dkt. No. 1 ("Compl.").
has filed a motion containing multiple requests, as follows:
(1) a hearing to determine if "evidence has been
intentionally destroyed, withheld, lost or redacted without
cause", which the Court liberally construes as a motion
to compel discovery; (2) a temporary restraining order
directing defendants' employer, to preserve and turn over
relevant evidence; and (3) leave to amend and/or supplement
his complaint. Dkt. No. 45. United States Magistrate Judge
Daniel J. Stewart has partially addressed, and will in the
near future finish addressing plaintiff's first and third
requests, namely plaintiff's request to compel discovery
and to amend and/or supplement his complaint. See
Text Minute Entry dated April 27, 2017; see also
Dkt. No. 50. Therefore, the only request presently before
this Court is the second request, namely the request for a
temporary restraining order.
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 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)). 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."
Cacchillo, 638 F.3d at 406 (citing Citigroup
Global Mkts., 598 F.3d at 35 n.4) (internal quotation
marks omitted)); see also Tom Doherty Assocs., Inc.
v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d
Cir. 1995) (a plaintiff seeking a mandatory injunction must
make a "clear" or "substantial" showing
of a likelihood of success on the merits of his claim). The
same standards used to review a request for a preliminary
injunction govern consideration of an application for a
temporary restraining order. Local 1814, Int'l
Longshoremen's Ass'n, AFL-CIO v. New York Shipping
Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992);
Perri v. Bloomberg, No. 06-CV-0403, 2008 WL 2944642,
at * 2 (E.D.N.Y. Jul. 31, 2008).
noted above, plaintiff requests a temporary restraining order
directing "Defendant's employer to preserve and turn
over" certain documents. Dkt. No. 45 at 1. Specifically,
plaintiff states that he requests a temporary restraining
order "ultimately leading to a Preliminary Injunction
and 'in camera' review of specific documents and
e-documents." Id. at 4. Defendants oppose
plaintiff's request for a temporary restraining order
arguing, among other things, that plaintiff's request
"is equivalent to a motion to compel [discovery]."
Dkt. No. 48 at 4.
request for a temporary restraining order is in essence a
motion to compel discovery. Apart from not being properly
raised in a motion seeking a temporary restraining order,
plaintiff's discovery-related requests have already been
addressed in part by Magistrate Judge Stewart, and the
remaining discovery issues are pending his review.
See Dkt. Nos. 38, 50; see also Text Minute
Entries dated December 20, 2016, and April 27, 2017. The
Court will not permit plaintiff to make an end run around the
rules of discovery, or Magistrate Judge Stewart's
decisions regarding discovery, by framing what is essentially
a request to compel discovery as a motion for a temporary
restraining order. Thus, to the extent that plaintiff's
motion seeks a temporary restraining order, that part of the
motion is denied. This Court takes no position on the
remaining portions of plaintiff's motion - namely his
requests to compel discovery or to amend/supplement his
complaint - as Magistrate Judge Stewart has addressed those
requests in part, and plans to address the remainder of the
discovery issues at a later date, after plaintiff submits a
motion to amend, and a decision is rendered on that motion.
See Dkt. Nos. 38, 50.
denying plaintiffs motion for a temporary restraining order,
the Court notes that "anyone who . . . is a party to a
lawsuit must not destroy unique, relevant evidence that might
be useful to an adversary. 'While a litigant is under no
duty to keep or retain every document in its possession . . .
it is under a duty to preserve what it knows, or reasonably
should know, is relevant in the action, is reasonably
calculated to lead to the discovery of admissible evidence,
is reasonably likely to be requested during discovery and/or
is the subject of a pending discovery request.'"
Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217
(S.D.N.Y. 2003) (citing Turner v. Hudson Transit Lines,
Inc., 142 F.R.D. 68, 72 (S.D.N.Y. 1991) (quoting
William T Thompson Co. v. Gen. Nutrition Corp., 593
F.Supp. 1443, 1455 (C.D. Cal. 1984))).
it is hereby
that plaintiff's motion for a temporary restraining order
(Dkt. No. 45) is DENIED; and it is further ORDERED that the
Clerk shall serve a copy of this Decision and Order on