United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY, U.S.D.J.
Henry Berry, proceeding pro se, brings this action under 42
U.S.C. §§ 1983, 1985, against the Pequot Library
Association (“the Library”), and persons
associated with the Library, alleging that the defendants
have violated his rights under the First and Fourteenth
Amendments. The gist of plaintiff's complaint appears to
be that since 2015 he has been prohibited from using the
Library in retaliation for an email he sent to Library staff
making allegations about a conspiracy against him involving
the FBI. Following receipt of the email, Library staff
contacted the Fairfield Police Department and complained that
plaintiff was engaging in behavior at the Library that
disrupted their ability to do their jobs and made them fear
for their safety. As a result, plaintiff was warned by
members of the Fairfield Police Department that he was not
allowed to return to the Library and if he did return he
would be subject to arrest for trespassing.
case is now before the Court on plaintiff's motion for a
temporary restraining order (“TRO”) prohibiting
the defendants from denying him access to the Library's
annual summer book sale, which is scheduled to take place
this weekend, from July 27 to July 31, 2018 (ECF No.
Plaintiff states that before filing the motion for a TRO, he
sought permission from the defendants to attend the sale and
his request was refused.
determining whether to issue a TRO, the key factors are: (1)
whether the plaintiff has demonstrated that he is likely to
suffer irreparable harm in the absence of an injunction; and
(2) whether the plaintiff has demonstrated either (a) a
likelihood of success on the merits or (b) sufficiently
serious questions going to the merits to make them a fair
ground for litigation and a balance of hardships tipping
decidedly in the plaintiff's favor. See Salinger v.
Colting, 607 F.3d 68, 79 (2d Cir. 2010). Having
considered these factors in light of the current record, I
conclude that the requested TRO should not be
record does not support a finding that the plaintiff will
suffer irreparable harm unless he is able to attend the sale.
As defendants point out, he has not attended the sale since
the alleged incidents in 2015, and he does not explain why he
would be irreparably harmed if he is unable to attend the
sale this year. Plaintiff's failure to seek a TRO in
prior years suggests that any harm he might suffer is not
sufficiently serious to justify an injunction. Indeed, his
failure to seek a TRO until just a few days before this
year's sale detracts from his claim of irreparable
regard to the merits of the underlying claims, plaintiff
cannot prevail unless he proves that, in complaining to the
police about him and denying his request to access to the
Library, the defendants have acted “under color of
state law.” See 42 U.S.C. § 1983. To
establish that a nominally private entity acts “under
color of state law, ” a plaintiff must prove
“such a close nexus between the State and the
challenged action that seemingly private behavior may be
fairly treated as that of the State itself.”
Brentwood Acad. v. Tennessee Secondary Sch. Athletic
Ass'n, 531 U.S. 288, 295 (2001) (quotations
omitted). Assuming for present purposes that the plaintiff
likely will be able to prove that the defendants have acted
and are acting under color of state law, he still cannot
prevail unless he proves that his constitutional rights have
been violated. On the record before me, I think it is
unlikely he will be able to do so. See Mpala v. City of
New Haven, Case No. 3:11cv1724, 2013 WL 657649 (D. Conn.
Feb. 22, 2013) (dismissing similar claims),
aff'd, 577 Fed.Appx. 20 (2d Cir. Aug. 26, 2014).
contend that plaintiff's suit is subject to dismissal in
light of previous litigation between the parties. In separate
lawsuits against some of the defendants in this case and
members of the Fairfield Police Department, now consolidated
in Berry v. Montilla, No. 3:16-cv-530 (AWT) (D.
Conn.) (ECF Nos. 64, 69) (consolidating 16-cv-1396 and
16-cv-1751), plaintiff alleged violations of the First and
Fourteenth Amendments based on the same underlying events at
issue here. The Court dismissed the claims in a ruling that
identified the specific allegations plaintiff would have to
make in order to state plausible claims. See Ruling
on Motions to Dismiss, at 27-39, id. (ECF No. 91).
The amended complaint falls short of satisfying those
construed, plaintiff's allegations may arguably provide
fair ground for litigation. Giving him the benefit of the
doubt on this point, in deference to his pro se status, I
have considered whether the record supports a finding that
the balance of hardships tips decidedly in his favor. I
conclude that it does not. As mentioned earlier, the
plaintiff has not explained in any detail the hardship he
would suffer if he is unable to attend the book sale.
Assuming his interest is entitled to some weight, I have
considered the hardship the TRO could cause the defendants.
Defendants, through counsel, have represented that
plaintiff's attendance at the sale involves a risk of
significant disruption and would require them to take
security measures. On this record, I cannot find that the
balance of hardships tips decidedly in favor of the
the motion for a TRO is hereby denied. The Clerk will notify
plaintiff by telephone that this order has been issued.
 As noted in the order to show cause
(ECF No. 14), the motion for a TRO has been referred to the
undersigned as the duty judge for Hartford.
 Defendants argue that the requested
injunction should be considered “mandatory”
rather than “prohibitory.” When a plaintiff seeks
a “mandatory injunction” - i.e., “an
injunction [which] will alter, rather than maintain, the
status quo” - he must make a “clear” or
“substantial” showing of likelihood of success.
See Tom Doherty Assocs., Inc. v. Saban Entm't,
Inc., 60 F.3d 27, 34 (2d Cir. 1995). Generally, a
mandatory injunction “is said to alter the status quo
by commanding some positive act.” Id. Here, it
appears that plaintiff has been warned by Library staff and
the Fairfield Police that he will be arrested for trespassing
if he returns to the Library. See Police Reports
(ECF No. 15-3). Thus, the requested injunction would alter
the status quo in that it would prohibit the defendants from
reporting plaintiff to the police. It is not necessary to
decide whether the requested injunction would be