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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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PAUL SIMMONS # 241-06-10391,

 : 

 Plaintiffs, REPORT & RECOMMENDATION

 :

 -against- 07 Civ. 3241 (RJH)(MHD)

 :

ASSISTANT COMMISSIONER MARK

CRANSTON et al., :

 Defendants. :

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TO THE HONORABLE RICHARD J. HOLWELL, U.S.D.J.:

By letter dated October 9, 2007, pro se plaintiff Paul Simmons

seeks what he describes as an order to show cause why disciplinary

charges brought against him for inciting a riot and leading a

demonstration should not be dismissed. The apparent basis for this

request is plaintiff’s assertion that the charges against him,

which resulted in a prison hearing on September 24, 2007, are

baseless and reflect retaliation for his filing the current lawsuit

against a number of Department of Correction (“DOC”) officials and

employees. 

When a party seeks a preliminary injunction, he bears the

burden to demonstrate at least that “[]he will suffer irreparable

harm absent injunctive relief, and . . . either (a) that . . . []he

is likely to succeed on the merits, or (b) ‘“that there are

sufficiently serious questions going to the merits to make them a
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fair ground for litigation, and that the balance of hardships tips

decidedly in favor of the moving party.”’” Moore v. Consol. Edison

Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005)(quoting No

Spray Coal., Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir.

2001)(per curiam)); accord, e.g., D.D. ex rel. V.D. v. N.Y. City

Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006). 

If the movant seeks a mandatory injunction, that is, one that

would require affirmative conduct by the defendant that would

“alter the status quo,” he must meet a higher standard. Id. at 510

(citing Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d

27, 33-34 (2d Cir. 1995)). In that case, he “‘must make a clear or

substantial showing of a likelihood of success’ on the merits, . .

., a standard especially appropriate when a preliminary injunction

is sought against government.” Id. (quoting Jolly v. Coughlin, 76

F.3d 468, 473 (2d Cir. 1996)). 

To obtain a preliminary injunction under any of the operative

tests in this circuit, the movant must demonstrate not only the

requisite prospect for success on the merits of his claim, but also

that the failure to provide the requested relief will cause him

irreparable harm. Indeed, the Second Circuit has frequently

reiterated that “irreparable harm is the single most important

prerequisite for the issuance of a preliminary injunction.” Grand
The Court has also said that because of the essential role 1

of the irreparable-harm element, “the moving party must first

demonstrate that such injury is likely before the other

requirements for the issuance of an injunction will be

considered.” Grand River Enter. Six Nations, 481 F.3d at 66-67

(internal quotation marks omitted) (quoting Freedom Holdings, 408

F.3d at 114).

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River Enter. Six Nations, 481 F.3d at 66-67 (internal quotation

marks omitted) (quoting Freedom Holdings, 408 F.3d at 114). To 1

satisfy this requirement, the movant must show that he “will suffer

‘an injury that is neither remote nor speculative, but actual and

imminent,’ and one that cannot be remedied ‘if a court waits until

the end of trial to resolve the harm.’” Grand River Enter. Six

Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (quoting

Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir.

2005)). Thus, for example, “[w]here there is an adequate remedy at

law, such as an award of money damages, injunctions are unavailable

except in extraordinary circumstances.” Moore, 409 F.3d at 510. 

Preliminary injunctive relief “is an extraordinary and drastic

remedy, one that should not be granted unless the movant, by a

clear showing, carries the burden of persuasion.” Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997) (internal quotation marks

omitted) (quoting 11A C. Wright, A. Miller & M. Kane, Federal

Practice and Procedure § 2948 at 129-30 (2d ed. 1995))(emphasis

omitted); see, e.g., Grand River Enter. Six Nations, 481 F.3d at

66; Hanson Trust PLC v. SCM Corp., 774 F.2d 47, 60 (2d Cir.
 Plaintiff raises the issue in his memorandum of law, 2

arguing that “the relief sought will serve the public interest

because it is always in the public interest for prison officials

to obey the law.” (Pl.’s Mem. of Law at 9). This assertion begs

the question of whether defendants are in fact violating

plaintiff’s legal rights, but in any event, as noted, movants

have a heavier burden when attempting to obtain a preliminary

injunction against the government than they do against any other

party, see D.D. ex rel. V.D., 465 F.3d at 510, reflecting the

courts’ sensitivity to the need to avoid interfering with

government administration of its own programs, a concern that is

particularly acute in the context of the State’s management of

prison affairs.

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1985)(stating that the preliminary injunction “is one of the most

drastic tools in the arsenal of judicial remedies”). Thus, even if

the movant makes a colorable showing of likely irreparable harm and

a sufficient prospect of success on the merits, the trial court has

“wide discretion” in deciding whether an injunction pendente lite

is appropriate under the circumstances. Moore, 409 F.3d at 511

(citing Green Party of N.Y. v. N.Y. State Bd. of Elections, 389

F.3d 411, 418 (2d Cir. 2004); Columbia Pictures Indus., Inc. v. Am.

Broad. Cos., 501 F.2d 894, 897 (2d Cir. 1974)). In exercising that

discretion, the court should take into account the public interest,

if relevant. See Register.com, Inc. v. Verio, Inc. 356 F.3d 393,

424, 432-33 (2d Cir. 2004).2

Plaintiff’s brief and conclusory letter application fails both

prongs of whichever version of the test we look to. First, he

offers no basis to infer that he is facing irreparable harm if the

requested injunction is not granted. If he is subjected to
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disciplinary hearings and sanctions that violate his First

Amendment or due process rights, he will of course have the option

of bringing suit for damages, and there is no evident basis to

believe that this will prove an ineffectual remedy. Moreover, the

documents presented by plaintiff reflect that although he faced a

variety of charges in September 2007, all but a single charge -- of

malingering -- were dismissed by the hearing officer, and that one

charge led to a hearing that appears to have complied with due

process standards. In addition, plaintiff offers no evidence

whatsoever to allow the inference that the charges were retaliatory

in nature, and hence there is no basis in the current record to

infer that he has demonstrated a likelihood of success on the

merits or even serious issues going to the merits. We also note

that plaintiff had available to him an administrative appeal

process within the prison system, which he would have to exhaust

before pursuing such a claim in federal court. See 42 U.S.C. §

1997e(a). 

Finally, to the extent that plaintiff seeks not merely an

injunction against future retaliation, but also the dismissal of

pending or sustained disciplinary charges, his request is for a

mandatory injunction, which, as we have noted, requires that he

meet a still more rigorous test. He plainly does not make a “clear

or substantial showing of a likelihood of success on the merits”.
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D.D. ex rel. V.D., 465 F.3d at 510. 

In sum, we conclude that plaintiff has failed to justify the

entry of a preliminary injunction. Accordingly, we recommend that

his letter application be denied.

Pursuant to Rule 72 of the Federal Rules of Civil Procedure,

the parties shall have ten (10) days from this date to file written

objections to this Report and Recommendation. Such objections shall

be filed with the Clerk of the Court and served on all adversaries,

with extra copies to be delivered to the chambers of the Honorable

Paul A. Crotty, Room 735, and to the chambers of the undersigned,

Room 1670, 500 Pearl Street, New York, New York 10007. Failure to

file timely objections may constitute a waiver of those objections

both in the District Court and on later appeal to the United States

Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985);

Small v. Secretary of Health and Human Services, 892 F.2d 15, 16

(2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a),

6(e).
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