United States District Court, W.D. New York
Elizabeth A. Wolford, United States District Judge
se plaintiff Eschell Ashcroft ("Plaintiff) is an
inmate confined at Wende Correctional Facility
("Wende"). He filed a Complaint alleging various
claims under Title II of the Americans with Disabilities Act,
42 U.S.C. § 12131 et seq. ("ADA"),
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794,
and 42 U.S.C. § 1983. (Dkt. 1). Plaintiffs Complaint was
screened pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A, Plaintiffs ADA and Rehabilitation Act claims against
the substituted defendant New York State Department of
Corrections and Community Supervision ("DOCCS")
were deemed sufficient to proceed to service, and Plaintiff
was granted leave to file an amended complaint to cure the
pleading deficiencies with respect to his remaining claims.
timely filed an Amended Complaint. (Dkt. 13). Plaintiffs ADA
and Rehabilitation Act claims against DOCCS were deemed
sufficient to proceed to service. (Dkt. 14). Currently
pending before the Court is Plaintiffs motion for a
preliminary injunction. (Dkt. 16). For the reasons set forth
below, the Court denies Plaintiff s motion.
order to obtain a preliminary injunction, the moving party
must establish the following: (1) a likelihood of irreparable
harm absent preliminary relief; (2) a likelihood of success
on the merits; (3) the balance of equities tipping in favor
of the moving party; and (4) the public interest is served by
an injunction. See Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). Where the moving party is
unable to demonstrate a likelihood of success on the merits,
a court may still issue a preliminary injunction if the
moving party demonstrates "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."
Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities
Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)
(quoting Jackson Dairy, Inc. v. H.P. Hood & Sons,
Inc., 596 F.2d 70, 72 (2d Cir. 1979)).
the purpose of a preliminary injunction is to maintain the
status quo ante pending a full hearing on the merits.
Occasionally, however, the grant of injunctive relief will
change the positions of the parties as it existed prior to
the grant." Abdul Wall v. Coughlin, 754 F.2d
1015, 1025 (2d Cir. 1985) (citations omitted), overruled
on other grounds, O'Lone v. Estate of Shabazz, 482
U.S. 342 (1987). "A higher standard applies if the
requested injunction is 'mandatory,' altering rather
than maintaining the status quo, or if the injunction will
provide the movant with substantially all the relief sought
and that relief cannot be undone even if defendant prevails
at a trial on the merits." People for Ethical
Treatment of Animals v. Giuliani. 105 F.Supp.2d 294, 303
(S.D.N.Y. 2000), report and recommendation
adopted, No. 00 CIV. 3972 (VM), 2000 WL 1639423
(S.D.N.Y. Oct. 31, 2000J, aff'd, 18 Fed.Appx. 35
(2d Cir. 2001). The Second Circuit has "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." Tom Doherty Assocs.
v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995)
(quotations and citation omitted).
Plaintiff has not Demonstrated his
Entitlement to a Preliminary Injunction
seeks a mandatory preliminary injunction that would alter the
status quo, and therefore is required to make a clear showing
of his entitlement to relief. Plaintiffs motion simply
consists of a two-page list of items he requests.
(See Dkt. 16 at 1-2 (Plaintiffs requested items
include: a talking dictionary, a waterproof talking watch, a
portable pocket cctv, an adjustable shower knob, shower
railing, a shower bench, shower books, and the removal of the
Plexiglass from the shower gate door)). Accordingly,
Plaintiff has failed to satisfy his burden.
has not submitted a single piece of evidence to this Court
that would support his request for a mandatory preliminary
injunction. The Court cannot grant a preliminary injunction
under these circumstances. See Anderson v. Mex. Acad.
& Cent. Sen., 186 F.Supp.2d 193, 209 (N.D.N.Y. 2002)
(mandatory preliminary injunction denied where plaintiffs did
not produce evidence "establishing a clear or
substantial likelihood of success on the merits");
Purdie v. Supervisor, Admin. Mail Room, Auburn Corr.
Facility, No. 9:09CV951FJS/ATB, 2010 WL 148639, at *4
(N.D.N.Y. Jan. 13, 2010) (mandatory preliminary injunction
denied where the plaintiff submitted no "proof or
evidence [meeting] [the preliminary injunction]
standard"). Because Plaintiff has not supported his
request for preliminary injunctive relief with proper
evidence, his motion must be denied.
Plaintiff has not Complied with the Court's Local
Court notes as an additional point that Plaintiffs failure to
submit any sworn affidavits or declarations in connection
with his motion for a mandatory preliminary injunction
violates this Court's Local Rules. In particular,
Plaintiff has not complied with Local Rule of Civil Procedure
7, which provides in relevant part:
Except for motions brought under Fed.R.Civ.P. 12(b)(1) (lack
of subject matter jurisdiction), 12(b)(6) (failure to state a
claim), 12(c) (judgment on the pleadings), and 12(f) (to
strike), motions and opposition to motions shall be supported
by at least one (1) affidavit and by such other evidence
(i.e., deposition testimony, interrogatory answers,
admissions, and documents) as appropriate to resolve the
particular motion. Failure to ...