14-720-cv Perez v. Arnone 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PE RMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23 rd day of January, two thousand fifteen.
PRESENT: ROBERT A. KATZMANN, Chief Judge, AMALYA L. KEARSE, REENA RAGGI, Circuit Judges.

_____________________________________ Ometrius Perez, Plaintiff-Appellant , v. 14-720 Leo Arnone, Department of Correction, Connectic ut, Patz, Captain, Wanda White-Lewis, Karen Danis, Coleman, Doctor, Guadaprama, Bake r, Roy, Byers, Nuzzo, Johnson, Correctional Managed Health Care, Michael Desena, Brian Hi cock, Smyth, Doctor, Steve Swan, Erfe, Ballaro, Pluszynski, Reid, Brown, Correctio nal Enterprises of Connecticut, Angel Quiros, Rikel Lightner, Alexander, Lieutenant, Blanchard, CTO. Defendants-Appellees

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_____________________________________ FOR PLAINTIFF-APPELLANT: Ometrius Perez, pro se, Newtown, CT.
FOR DEFENDANTS-APPELLEES: Matthew B. Beizer, Assistant Attorney General, Office of the Attorney General, Hartford, CT.Appeal from an order of the United States Di strict Court for the Di strict of Connecticut (Bryant, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order of the district court is AFFIRMED in part and VACATED in part, the appeal is DISMISSED in part for lack of juri sdiction, and the action is REMANDED for further proceedings consistent with this order. Appellant Ometrius Perez, proceeding pro se, ap peals from so much of the district court’s orders as denied his motions for a preliminary in junction and for entry of default judgment. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We do not have jurisdiction to consider an inte rlocutory appeal from the denial of a motion for default judgment. See In re Wills Lines, Inc. , 227 F.2d 509, 511 (2d Cir. 1955). Accordingly, insofar as Perez appeals from the denial of his motions for default judgment, the appeal is dismissed for lack of jurisdiction. We review the denial of injunctiv e relief for abuse of discretion. Kamerling v. Massanari , 295 F.3d 206, 214 (2d Cir. 2002). A party seeking a pr eliminary injunction a ltering the status quo must establish: (1) a substantial likelihood of su ccess on the merits; (2) irre parable harm; (3) that the balance of equities tips in his favor; and (4 ) that an injunction is in the public interest. See New York Progress and Protection PAC v. Walsh , 733 F.3d 483, 486 (2d Cir. 2013). Irreparable harm is “the single most important prerequisite for the issuance of a preliminary injunction.” Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp. , 719 F.2d 42, 45 (2d Cir. 1983) (internal quotation omitted). ‘“The existence of factual dis putes necessitates an evidentiary hearing . . .3 before a motion for a preliminary injunction may be decided.”’ Kern v. Clark , 331 F.3d 9, 12 (2d Cir. 2003) (quoting Commodity Futures Trading Comm’n v. Incomco, Inc. , 649 F.2d 128, 131 (2d Cir. 1981)). Here, the district court properly denied reli ef on Perez’s medical claims because Perez provided no evidence that the defendants failed to give him appropriate medical treatment. However, the court erred in ruling that Perez’s transfer to a new correctional facility mooted his claim as to the conditions of his confinement, a nd in failing to hold an evidentiary hearing with respect to whether he was deprived of mean ingful access to prison library services.
I. Access to Prison Library Services To establish a violation of Title II of the Americans with Disabilities Act, 43 U.S.C. §
12131 et seq. (“ADA”), a plaintiff must prove : “(1) that he is a ‘qua lified individual’ with a disability; (2) that he was excluded from participati on in a public entity’s serv ices . . . ; and (3) that such exclusion or discrimination was due to his disability.” Hargrave v. Vermont , 340 F.3d 27, 34-35 (2d Cir. 2003). A state prison’s law libr ary constitutes a public service under the ADA. See generally Pennsylvania Dep’t of Corrections v. Yeskey , 524 U.S. 206, 210-11 (1998). Exclusion may be demonstrated by showing that the defendants failed to provide an “otherwise qualified plaintiff with disabilities ‘meaningful access’ to the program or services sought.” Henrietta D. v. Bloomberg , 331 F.3d 261, 282-83 (2d Cir. 2003). The district court stated that there were no facts in dispute with respect to the issue of Perez’s access to prison library services, and de nied him relief based on its acceptance of the defendants’ contention that they had already ad equately accommodated Perez’s disability in this regard. However, Perez has identified disputed issues of fact that require a remand for an4 evidentiary hearing. See Fengler v. Numismatic Americana, Inc. , 832 F.2d 745, 747-48 (2d Cir. 1987) (remanding for evidentiary hearing). Perez provided evidence that the defendants deprived him of a computer, word processing programs for the visually impaired, adequate writing tools, envelopes for the blind, and an electronic magnifier. He al so provided evidence that the Department of Corrections (“DOC”) deprived h im of large print texts despite DOC regulations requiring that these materi als be made available, and disputed the DOC’s a ssertion, in response to Perez’s preliminary injunction motion, that it ha d provided an electronic magnifier. Although the defendants provided evidence that they were working on providing word processing programs, there are factual issues as to whether the programs have been, or even could be, made meaningfully available to Perez. Nor does the defendants’ attempt to cure moot the claim. Reforms taken under the pressure of litigation do not moot claims for injunctive relief unless “subsequent events make it absolutely clear th at the allegedly wrongful behavior could not reasonably be expected to recur.” Parents Involved in Community Schools v. Seattle Sch. Dist.
No. 1, 551 U.S. 701, 719 (2007) (quotation and altera tion omitted). “The existence of [these] factual disputes necessitates an evidentiary hearing . . . .” Kern , 331 F.3d at 12 (internal quotation marks omitted). Accordingly, we vacate the distri ct court’s order in part and remand for an evidentiary hearing on the issue of Pere z’s access to prison library services.

II. Conditions of Confinement Perez’s claims with respect to his reque sts for a single cell are not mooted by his subsequent transfer to a new facility. Perez alle ged that the problem with double-celling persisted at his new facility, and the DOC Commissioner, a named defendant , has the power to implement the requested relief. See Davis v. New York , 316 F.3d 93, 99 (2d Cir. 2002) (injunctive relief not5 mooted by transfer where prisoner complained that the problem persisted after transfer). Further, Perez provided evidence that he was diagnosed with PTSD and an anxiety disorder; that he had a single cell designation in New York prior to his transfer to Conn ecticut because of his mental health issues; that the DOC’s own regulati ons require screening to determine whether double-celling is appropriate for inmates with mental health problems; and that he filed numerous grievances complaining that double-celling exacerb ated his suicidal tendencies. The defendants did not contest these allegations, state whether any evaluations had been done, or address whether Perez was likely to succeed on an Eighth Amendm ent claim. Although double-celling is not a per se Eighth Amendment violation, a full factual record is nece ssary to determine whether double-celling a particular inmate is unconstitutional. See generally Walker v. Schult , 717 F.3d 119, 129 (2d Cir. 2013). Accordingly, the district c ourt’s order is vacated in part and remanded for reconsideration on the issue of Perez’s request for a single cell.
III. Medical Claims The district court properly de nied Perez preliminary injuncti ve relief for medical treatment of his wrist and knee. Perez pr ovided no evidence – ot her than unsupported asse rtions – that the defendants failed to provide a ppropriate medical treatment. See New York City Environmental Justice Alliance v. Giuliani , 214 F.3d 65, 72-73 (2d Cir. 2000) (affirm ing denial of injunctive relief because plaintiffs failed to present evidence on wh ich district court could conclude a likelihood of success).6 We have considered all of Per ez’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM in part, VACATE in part, and DISMISS in part, and REMAND the action for further proceedings c onsistent with this order.
FOR THE COURT: Catherine O = Hagan Wolfe, Clerk