1In his motion for a preliminary injunction, Graham relates

one incident of verbal threatening by Valente. However, no

evidence of the incident was presented at the hearing, and I will

not consider the incident in making this recommendation on

Graham’s motion.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William Graham

v. Civil No. 06-cv-453-JD

Bruce Cattell, Warden,

New Hampshire State Prison, et al.

REPORT AND RECOMMENDATION

Plaintiff William Graham is an inmate at the New Hampshire

State Prison’s Secure Psychiatric Unit (“SPU”). Graham filed a

motion for injunctive relief (document nos. 15 & 18) alleging

that he has been assaulted verbally and physically by New

Hampshire State Prison Correctional Officers (“COs”) Valente,

Sweeney, and Conner, in retaliation for the lawsuit he has filed

naming those individuals as defendants.1 Graham seeks an order

enjoining Valente, Sweeney, and Conner, from having any contact

with him. A hearing on Graham’s motion was held before me on

April 30, 2007. After consideration of the evidence adduced at

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2

the hearing, as well as the written and oral arguments before the

Court, I recommend the denial of the motion for a preliminary

injunction for the reasons stated herein.

Standard of Review

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

the underlying action. Such a situation arises when some harm

from the challenged conduct could not be adequately redressed

with traditional legal or equitable remedies following a trial. 

See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12,

18 (1st Cir. 1996) (finding irreparable harm where legal remedies

are inadequate); see also Acierno v. New Castle County, 40 F.3d

645, 653 (3d Cir. 1994) (explaining irreparable harm and its

effect on the contours of preliminary injunctive relief). 

Absent irreparable harm, there is no need for a preliminary

injunction.

The need to prevent irreparable harm, however, exists only

to enable the court to render a meaningful disposition on the

underlying dispute. See CMM Cable Rep., Inc. v. Ocean Coast

Props., Inc., 48 F.3d 618, 620-21 (1st Cir. 1995) (explaining the

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3

purpose of enjoining certain conduct as being to “preserve the

‘status quo’ . . . to permit the trial court, upon full

adjudication of the case’s merits, more effectively to remedy

discerned wrongs.”); see also Stenberg v. Cheker Oil Co., 573

F.2d 921, 925 (6th Cir. 1978) (“The purpose of a preliminary

injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on

the merits.”).

A preliminary injunction cannot issue unless the moving

party satisfies four factors which establish its need for such

relief. See Esso Std. Oil Co. v. Monroig-Zavas, 445 F.3d 13, 17-

18 (1st Cir. 2006) (discussing the requisite showing to obtain a

preliminary injunction); see also Ross-Simons, 102 F.3d at 18-19

(explaining the burden of proof for a preliminary injunction). 

Those factors are: “(1) the likelihood of success on the merits;

(2) the potential for irreparable harm [to the movant] if the

injunction is denied; (3) the balance of relevant impositions,

i.e., the hardship to the nonmovant if enjoined as contrasted

with the hardship to the movant if no injunction issues; and (4)

the effect (if any) of the court’s ruling on the public

interest.” Esso Std. Oil, 445 F.3d at 18. If the plaintiff is

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4

not able to show a likelihood of success on the merits, the

remaining factors “become matters of idle curiosity,”

insufficient to carry the weight of this extraordinary relief on

their own. See id. (the “sine qua non of the four-part inquiry

is likelihood of success on the merits”). Yet, “the predicted 

harm and the likelihood of success on the merits must be

juxtaposed and weighed in tandem.” Ross-Simons, 102 F.3d at 19. 

Background

Graham testified at the April 30 hearing that on March 16,

2007, he was assaulted by defendant COs Conner and Sweeney, and

that he believes that the assault was in retaliation for Graham’s

pending federal lawsuit against those COs. The incident began

when Graham was returned to his room from the dayroom seven to

ten minutes earlier than he expected. When Graham questioned the

defendants about why his dayroom time was cut short, they did not

respond. At that point, Graham made what he admits was an illadvised decision to “flood out” his room by placing a styrofoam

cup into his toilet and repeatedly flushing the toilet. When

officers responded to the disturbance thus created, Graham

threatened to kill himself if he was kept in his room. Graham

was then taken to a nurse for an assessment of his suicidality. 

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5

The nurse put Graham in a seclusion room to be placed in fourpoint restraints. At that point, Graham stated that he was not

actually suicidal and was subsequently returned to his room. 

Conner and Sweeney, as well as CO Jonathan Makara, escorted

Graham back to his room. At Graham’s room, the three officers

held Graham at the door of his room to remove his handcuffs

before shutting the door. Graham claims that two officers yelled

at Graham to stop resisting and then pushed Graham across the wet

floor, while slapping, punching, and kicking him, before laying

him down across his bunk. Graham alleges that this assault

lasted approximately one minute, during which the officers were

laughing. After Graham was laid flat on his bunk, he was lifted

up and returned to his door to be unhandcuffed. 

At the April 30 hearing, Graham displayed a small, recent

scar on his arm that he alleges is the remnants of an injury he

received during this incident. Graham also testified that he was

charged with a disciplinary violation for flooding his cell and

resisting detention, and that he pleaded guilty to both of those

charges. 

COs Makara, Sweeney, and Conner also testified at the

hearing. Their testimony was consistent with Graham’s until the

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2Sweeney and Connor both testified that whenever a SPU

inmate is handcuffed and taken out of his room, he is offered

medical treatment as a matter of policy.

3In order to obtain the injunctive relief he seeks, Graham

must establish that he is likely to succeed on the merits of the

claims underlying his action before this Court. See Ralph v.

Lucent Techs., Inc., 135 F.3d 166, 170 (1st Cir. 1998) (in

evaluating the likelihood of success on the merits pursuant to a

preliminary injunction request, the merits to be considered are

6

point when Graham was returned to his room after being released

from the nurse’s care. The officers testified that at the room

door, Graham pulled away from the officers who were trying to

remove his handcuffs. The officers then placed Graham down on

his bunk and told him to stop resisting. When Graham stopped

resisting, he was brought back to his door and uncuffed without

incident. The officers denied the occurrence of any kicking,

punching or slapping. They also denied seeing any cuts or blood

on Graham. Further, the officers testified that, pursuant to SPU

policy, Graham was offered medical attention after the incident,

but that he refused to avail himself of medical care at that

time.2 

Discussion

Graham did not introduce evidence at the preliminary

injunction hearing regarding the merits of his underlying

claims.3 However, after conducting my preliminary review of the

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the merits of the underlying claims). While this finding is

essential to the success of a motion for a preliminary

injunction, in this matter I find it more efficient to consider

the likelihood of success on the merits in conjunction with the

requirement that Graham demonstrate that irreparable harm will

occur to him if this injunction is not granted.

7

complaint, I found that a number of the claims alleged are viable

and may proceed. The focus of the hearing was on the March 16

incident, which Graham alleges demonstrates that he is likely to

be irreparably harmed without the intervention of this Court. 

While I found that both Graham and the officers testified

credibly, the burden of persuasion, by a preponderance of the

evidence, is “squarely on” Graham as the proponent of the

injunction. Ross-Simons, 102 F.3d at 18 (citing Narragansett

Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir. 1991)). As I

found the evidence to be evenly balanced, I cannot find that

Graham has carried his burden of presenting a preponderance of

evidence supporting his position. Accordingly, even assuming

that Graham had demonstrated, at the hearing, a likelihood of

success on the merits of his underlying claims, having failed to

prove irreparable harm, he cannot succeed in obtaining the

preliminary injunctive relief he seeks. See Narragansett Indian

Tribe, 934 F.2d at 5 (listing the “potential for irreparable

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8

injury” as a standard prerequisite for the granting of a

preliminary injunction). 

Specifically, I find that while Graham described one

incident where it appears that he may have been treated less than

gently, Graham also admits that the treatment he received was in

direct response to Graham’s extremely disruptive behavior. 

Graham offered no evidence of any pattern of unprovoked assaults

that would indicate that Graham is likely to be harmed by

defendants Sweeney and Conner in the future. Graham’s hearing

was a full six weeks after the incident in question, and Graham

describes no ongoing or repeated behavior on the part of

defendants to indicate that he is in any present or imminent

danger of further harm. As I cannot find any basis to conclude

that Graham is at risk of suffering irreparable harm presently,

immediately, or pending final disposition of his underlying

claims, I must recommend that Graham’s motion for preliminary

injunctive relief be denied.

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

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9

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 16, 2007

cc: William Graham, pro se

Laura E.B. Lombardi, Esq.

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