Pena v. Semple

          RULING ON PENDING MOTIONS

          Kari A. Dooley United States District Judge

         Procedural Background

         The plaintiff, James Pena (“Pena”), currently incarcerated at the MacDougall-Walker Correctional Institution (“MacDougall-Walker”), brings this civil rights complaint against Counselor Supervisor Aldi, Unit Manager Tammaro, Captain Kelly, Lieutenant Bragdon, Correctional Officers Nichols, John Doe #1 and John Doe #2 and Mental Health Worker J. Brennan.^[1] He alleges that during his confinement at Corrigan-Radgowski Correctional Institution (“Corrigan”) from January to November 2018, several of the defendants failed to protect him from assault by another inmate and used excessive force against him. He also asserts retaliation claims as well as claims that one or more of the defendants was deliberately indifferent to his medical needs. See Initial Review Order (“IRO”), ECF No. 12 at 18.

         On May 13, 2019, Pena filed a document titled “Order to Show Cause and Temporary Restraining Order.” See Motion, ECF No. 10. The Clerk docketed the order as a motion for order to show cause and temporary restraining order (“TRO”). On May 16, 2019, the court directed Counselor Supervisor Aldi to file a response to the motion. See Order, ECF No. 11. On June 19, 2019, Pena filed a motion for TRO and preliminary injunction. See Motion, ECF No. 21. Pena has also filed a motion for appointment of counsel.

         John Doe Defendants

         Preliminarily, in the IRO, the court advised Pena that the Clerk could not serve the complaint on the two John Doe defendants without knowing their first and last names. See IRO at 19. The court allowed Pena ninety days to file a notice identifying each Doe defendant by his first and last name and cautioned Pena that failure to file a timely notice would result in dismissal of the claims against the Doe defendants. See Id. Pena has not notified the Clerk of the first and last name of either Doe defendant. Accordingly, the claims against Correctional Officer John Doe #1 and Correctional Officer John Doe #2 are dismissed without prejudice pursuant to Rule 4(m), Fed. R. Civ. P.

         Motions to Show Cause and for TRO and Preliminary Injunction [ECF Nos. 10, 21]

         In the first motion, Pena seeks a TRO directing the defendants to transfer him to MacDougall-Walker and to place him on recreation-alone status at that facility. In the second motion, Pena seeks a TRO and a preliminary injunction in the form of orders directing the defendants to provide him with mental health treatment and therapy, to re-prescribe medications for him and to transfer him back to MacDougall-Walker and to place him on recreation-alone status at that facility. In response, Defendant Aldi asserts that Pena has not demonstrated that he will be irreparably harmed if the relief requested is not granted and that Pena has failed to establish that he is likely to succeed on the merits of his claims.

         Standard of Review

         Pursuant to Rule 65(b)(1), Fed. R. Civ. P., a district court may issue a TRO “if specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and the movant certifies in writing any efforts made to give notice and the reasons why it should not be required.” Id. Thus, the “[t]he purpose of a temporary restraining order is to preserve an existing situation in status quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.” Garcia v. Yonkers School Dist., 561 F.3d 97, 107 (2d Cir. 2009) (internal quotation marks and citations omitted).

         An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010) (citation omitted). To warrant preliminary injunctive relief, the moving party must demonstrate (a) that he or she will suffer “irreparable harm” in the absence of an injunction, and (b) either (1) a “likelihood of success on the merits or (2) sufficiently serious questions going to the merits [of the case] to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary injunctive relief.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 405-06 (2d Cir. 2011) (internal quotation marks omitted). When considering a request for a preliminary injunction and an application for a temporary restraining order together, the same standard is applicable. See Stagliano v. Herkimer Cent. Sch. Dist., 151 F.Supp.3d 264, 272 (N.D.N.Y. 2015) (citing inter alia Local 1814, Int'l Longshoremen's Ass'n, AFL-CIO v. N.Y. Shipping Ass'n, 965 F.2d 1224, 1228 (2d Cir. 1992)).

         If the movant seeks a “mandatory preliminary injunction that alters the status quo by commanding some positive act, ” rather than a “prohibitory injunction seeking only to maintain the status quo” then the burden of proof is even greater. Cacchillo, 638 F.3d at 406 (internal quotation marks and citation omitted). Such 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.” Id.

         Discussion

         In support of his motions, Pena alleges that on November 28, 2018, prison officials at Corrigan transferred him to MacDougall-Walker and placed him on recreation-alone status.^[2] On March 28, 2019, prison officials at MacDougall-Walker transferred Pena back to Corrigan. On April 28, 2019, an inmate member of the Bloods gang assaulted Pena. Officials sent Pena to the restrictive housing unit because he had fought with the inmate who had assaulted him. Pena claims that Mental Health Worker Brennan subsequently discontinued prescriptions ...