United States District Court, N.D. New York
GABRIEL GILMORE Plaintiff, pro se
LETITIA JAMES New York State Attorney General Attorney for
Defendant NICHOLAS LUKE ZAPP Assistant Attorney General
DECISION AND ORDER
L. SHARPE SENIOR UNITED STATES DISTRICT JUDGE.
Gabriel Gilmore commenced this action by filing a pro se
civil rights complaint pursuant to 42 U.S.C. § 1983, and
thereafter a proper application to proceed in forma pauperis
(IFP). See Dkt. No. 1 ("Compl."); Dkt. No.
8 ("IFP Application"). By Decision and Order filed
on June 5, 2018, plaintiff's IFP Application was granted,
and after screening the complaint in accordance with 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b),
this Court dismissed several claims and defendants from this
action, and found that plaintiff's First Amendment
retaliation claim against defendant Blair survived sua sponte
review and required a response. Dkt. No. 13 (the "June
Blair answered the complaint on August 3, 2018, see
Dkt. No. 20, and a Mandatory Pretrial Discovery and
Scheduling Order was filed on September 24, 2018,
see Dkt. No. 21.
between October, 2018 and August, 2019, plaintiff filed,
among other things, three motions seeking preliminary
injunctive relief, each of which were denied by separate
Decision and Order of this Court. See Dkt. No. 23
("First Preliminary Injunction Motion"); Dkt. No.
26 ("November 2018 Order Denying First Preliminary
Injunction Motion"); Dkt. No. 32 ("Second
Preliminary Injunction Motion"); Dkt. No. 35
("March 2019 Order Denying Second Preliminary Injunction
Motion"); Dkt. No. 69 ("Third Preliminary
Injunction Motion"); Dkt. No. 78 ("October 2019
Order Denying Third Preliminary Injunction
before the Court are the following submissions from
plaintiff: (1) a letter request for Court assistance
regarding interference with mail, Dkt. No. 90; and (2) a
motion for an injunction and restraining order regarding
interference with plaintiff's document production, Dkt.
No. 94. The Court construes these submissions
together as a Fourth Preliminary Injunction Motion, which
counsel for defendant Blair has opposed. See Dkt.
Nos. 95, 96.
MOTION FOR PRELIMINARY INJUNCTION
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) (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 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. N.Y. 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). The district court has wide
discretion in determining whether to grant preliminary
injunctive relief. Moore v. Consol. Edison Co. of N.Y.,
Inc., 409 F.3d 506, 511 (2d Cir. 2005). "In the
prison context, a request for injunctive relief must always
be viewed with great caution so as not to immerse the federal
judiciary in the management of state prisons."
Fisher v. Goord, 981 F.Supp. 140, 167 (W.D.N.Y.
1997) (citing Farmer v. Brennan, 511 U.S. 825,
846-47 (1994)) (other citations omitted).
Fourth Preliminary Injunction Motion must be denied for
several reasons. First, as with his First Preliminary
Injunction Motion and Third Preliminary Injunction Motion,
plaintiff's Fourth Preliminary Injunction Motion
impermissibly seeks relief against a non-party, and bears no
relationship to the claim for relief that remains in this
action. See October 2019 Order Denying Third
Preliminary Injunction Motion at 4-5.
plaintiff has failed to identify any actual and imminent
injury he will suffer in the absence of a mandatory
injunction. Indeed, plaintiff's motion fails to provide
any details regarding what documentation he has requested
from the "FOIL Officer," let alone why this
documentation is relevant to the underlying proceeding and
was not requested from counsel for defendant Blair.
and perhaps most importantly, it appears from the documentary
evidence attached to plaintiffs motion that plaintiff has not
received the documents he has sought through a FOIL request
due to his own failure to follow DOCCS procedures for
requesting such documents. See Dkt. No. 94 at 3-5.
of these reasons, plaintiffs Fourth Preliminary Injunction
Motion is denied. Plaintiff is advised that concerns
regarding his current conditions of confinement at Attica
Correctional Facility should be addressed through
administrative channels at that facility and the New York
State Department of Corrections and Community Supervision
and, if necessary, by means of a properly filed action.
Plaintiff is further warned, in light of having filed three
separate and meritless requests for injunctive relief related