2 2

- 500

- cv Bradshaw v. Welch 

## 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 PERMITTED 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 “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON A NY 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 th e 1 st da y of March , two thousand twenty
- t hree
. PRESENT: ROBERT D. SACK , SUSAN L. CARNEY , JOSEPH F. BIANCO , Circuit Judges

.

___________________________ __________ Jay Bradshaw , Plaintif f

- Ap pellant ,

v. 2 2

- 500

- cv Matthew Welch, Correctional Officer , Upstate Correctional Facility ; Gabriel Orbegozo, Correctional Officer , Upstate Correctional Facility ; Nathan Locke, Correctional Officer , Upstate Correctional Facility ; Russell, Correctional Officer , Upstate Correctional Facility ; Gravlin, Captain , Upstate Correctional Facility ; John Doe #1

- 2, Correctional Officers , Upstate Correctional Facility ; Eric E. Marshall, Sergeant , Upstate Correctional Facility ,2 Defendant s -

Appellee s , Soucia, Sergeant , Upstate Correctional Facility ; Donald Uhler, Veneske , Corrections Sergeant, Brunson, Corrections Officer, C.O. Lamica, Mallette, Corrections Officer, Gadway, Corrections Officer, Gibson, C.O., Defendants

.

_____________________________________ FOR PLAINTIFF

- APPELLANT: Jay Bradshaw , pro se , Malone , NY

. FOR DEFENDANT S

- APPELLEE S : Frederick A. Brodie , Assistant Solicitor General, Andrea Oser, Deputy Solicitor General , Barbara D. Underwood, Solicitor General , for Letitia James, Attorney General of the State of New York, Albany, NY

.
Appeal from a n order of the United States District Court for the Northern District of New
York ( D’Agostino , J .).
UPON DU E CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED

. Plaintiff

- a

ppellant Jay Bradshaw, proceeding pro se , appeals the district court’s order,
entered on March 4, 2022, denying his motion for a preliminary injunction. As the district court noted, this lawsuit is one of at least twenty

- two civil actions brought by Bradshaw since 2008.
See Dist. Ct. D kt. No. 13 , at 3 (listing cases). I n this lawsuit, Bradshaw broug ht claims for , among other things , excessive force and failure

- to

- intervene under 42 U.S.C. § 1983, in connection with an alleged series of incidents on July 12, 2021, during which Bradshaw asserts he was assaulted by certain defendants while incarcerated at Upstate Correctional Facility3 (“Upstate”).
Over several months following the filing of the complaint on July 21, 2021 , Bradshaw

move d numerous times for a preliminary injunction ordering the defendants to (1) desist from harming him and (2) transfer him from Upstate to another prison. The district court denied these
motions

. Bradshaw did not appeal those decision s
. O n January 1 8 , 2022, Bradshaw filed another request for injunctive relief based on a n allegedly improper cell search conducted by correction al officers and threats allegedly made by defendant Sergeant Eric Marshall on January 6, 2022 (the “January 2022 Allegations ”)

. While that motion was being briefed, Bradshaw commenced a separate federal lawsuit based on the January 2022 Alle gations and moved for a temporary restraining order and a preliminary injunction , relief identical to that sought in the motion denied and appealed in this case. See
Bradshaw v. Uhler , No. 22

- cv - 94, Dkt. Nos. 1

– 2 (N.D.N.Y.).
In the instant action, on March 4, 2022, the district court denied Bradshaw’s motion for injunctive relief based on the January 2022 Allegations

. See Bradshaw v. Marshal , No. 21

- cv 0826, 2022 WL 630890, at * 4 (N.D.N.Y. Mar. 4, 2022 ). T he district court det ermined, among other things, that the motion should be denied because Bradshaw’s pending separate lawsuit relating to the January 2022 Allegations sought identical injuncti ve relief , and “[i]t [was] entirely inappropriate to pursue the same injunctive reli ef in two separate actions, based on the same underlying conduct.” Id

. at *2.
Bradshaw filed this appeal. While the appeal was pending, Bradshaw was transferred
to another New York State facility to participate in a treatment program but was subsequently transferred back to Upstate , where he remains incarcerated today

. We assume the parties ’4 familiarity with the underlying facts, the procedural history, and the issues on appeal , to which we refer only as necessary to explain our decision to a ffirm

. As a threshold matter , we must determine whether Bradshaw’s appeal is moot because

w e lack jurisdiction to review a moot appeal

. Nat’l Org. for Marriage, Inc. v. Walsh , 714 F.3d 682, 692 (2d Cir. 2013) . An appeal becomes moot “if an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief [ what so ever ] to a prevailing party.” Church of Scientology of Cal. v. United States , 506 U.S. 9, 12 (1992) (internal quotation marks and citation omitted)

. Thus, “ [ a ] prisoner’s transfer to a different correctional facility generally moots his request for injunctive relief against employees of the transferor facility.” Thompson v. Carter , 284 F.3d 411, 415 (2d Cir. 2002). Defendants argue that , because Bradshaw was tr ansferred to Lakeview Correctional Facility to participate in a treatment program in September 2022, his motion for injunctive relief
related to his conditions of confinement at Upstate became moot , and his appeal must be
dismissed even though he has now b een transferred back to Upstate. We disagree. Here, Bradshaw seeks an order vacating the district court’s denial of his motion for a preliminary injunction that would provide emergency relief because of his conditions of
confinement at Upstate

. Beca use he is currently at Upstate, r egardless of whether he was temporarily housed at another facility during the appeal , there is nothing about the present
situation that would render it impossible for the district court to grant his requested relief,
includ ing his requested transfer from Upstate to another facility. See , e.g. , Davis v. New York , 316 F.3d 93, 99 (2d Cir. 2002) (holding that a transfer of incarcerated plaintiff to a different housing block did not moot claim for injunctive relief where plaintiff alleged that the unlawful5 conduct persisted in current location); see also Smith v. N.Y. State De p ’t of Corr. Servs. , No. 8

-

cv - 7909, 2010 WL 1191957 , at *1 (S.D.N.Y. Mar

. 26, 2010) (declining to ado pt Magistrate Judge’s recommendation that inmate’s Eighth Amendment claim was moot because he had been transferred out of the facility at issue where inmate alleged that he had been transferred back), aff’d in part and vacated in part , 500 F. App’x 59 (2d Cir. 2012) , as amended (Oct. 24, 2012) (summary order) (addressing merits of Eighth Amendment claim). Put simply, “ a live controversy ” continues to exist between Bradshaw and the defendants regarding his continued incarceration at Upstate. Thompson , 284 F.3d at 415. Accordingly, this appeal is not moot. 1 “A party seeking a preliminary injunction must ordinarily establish (1) irreparable harm; (2) 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; and (3) that a preliminary injunction is in the public interest.” New York ex rel. Schneiderman v. Actavis PLC , 787 F.3d 638, 650 (2d Cir. 2015) (internal quotation marks and citation omitted). We review the denial of a preliminary injunction for abuse of discretion, examining factual conclusions for clear error and the legal conclusions de novo
. Green Haven Prison Preparative Meeting of Religious Soc ’ y of Friends v. N.Y. State Dep ’ t of Corr. & Cmty. Supervision , 16 F.4th 67, 78 (2d Cir. 2021), cert. denied sub nom. Green Haven Preparative Meeting v. N.Y. State Dep ’ t of Corr. & Cmty. Supervision , 142 S. Ct. 2676 (2022). We also

1 In holding that the requested injunctive relief (including a transfer from Upstate) has not been rendered impossible by any subsequent events for purposes of the mootness analysis, we make no legal determination on the merits as to whether the relief sough t may be granted in this case

.6 review for abuse of discretion a district court’s handling of duplic ative claims or motions in separate lawsuits. Curtis v. Citibank, N.A. , 226 F.3d 133, 138 (2d Cir. 2000).
T he district court determin ed in this case (which relates to alleged unconstitutional conduct by the defendants at Upstate on July 1 2 , 2021 ) that it should not consider Bradshaw’s
motion for injunctive relief related to separate events at Upstate months later in January 2022 allegedly involving different defendants (with the exception of Sergeant Marshall ) , especially where Bradshaw filed a separate lawsuit regarding the January 2022 Allegations and has a pending motion in that case seeking identi cal injunctive relief. Marshal , 2022 WL 630890, at
*2

– 3 & n.8

. We find no abuse of discretion in that determination. See C urtis , 226 F.3d at 138 (“The complex problems that can arise from multiple federal filings do not lend themselves to a rigid test, but require instead that the district court consider the equities of the situation when exercising its discretion.”). 2
We have considered Bradshaw ’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the order of the district court

. FOR THE COURT: Catherine O ’ Hagan Wolfe, Clerk of Court

2 The district court also concluded that Bradshaw failed to demonstrate a likelihood of success regarding his claims arising from the January 2022 Allegations because , “having filed his motion only one week after the alleged wrongdoing that gives rise to his request for injunctive relief, plaintiff unquestionably failed to fully exhaust his administrative remedies, yet he offers no explanation as to why he did not do so .” Marshal , 2022 WL 630890, at *3. We express no view on the issue here . Defendants are free to raise an exhaustion defense, if they wish, in the separate lawsuit related to the January 2022 Allegations

. We similarly do not reach the other grounds artic ulated by the district court for denial of the preliminary injunction.