United States District Court, D. New Hampshire
Tito, pro se, Anthony Galdieri, Esq.
REPORT AND RECOMMENDATION
K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE
the court are plaintiff Albert Tito's motion for a
preliminary injunction (Doc. No. 2), Tito's request for a
preliminary injunction in Document No. 6, and Tito's
motion (Doc. No. 9) for an expedited hearing and resolution
of his request for preliminary injunctive relief. Defendant
Michael Zenk, New Hampshire State Prison (“NHSP”)
Warden, has objected to the request for a preliminary
injunction, see Doc. No. 11, and has supplemented
that objection by filing a notice regarding Tito's
transfer to the Northern New Hampshire Correctional Facility
(“NCF”), see Doc. No. 35, in which Zenk
argues that the transfer moots the request for a preliminary
injunction. The requests for a preliminary injunction have
been referred to the magistrate judge for issuance of a
Report and Recommendation. See Feb. 2, 2018 Order;
Jan. 9, 2018 Order.
Standard Regarding Hearing
court may rule on a motion for a preliminary injunction on
the papers if it has before it “‘adequate
documentary evidence upon which to base an informed, albeit
preliminary conclusion, '” and the parties have
been afforded “‘a fair opportunity to present
relevant facts and arguments to the court, and to counter the
opponent's submissions.'” Campbell Soup Co.
v. Giles, 47 F.3d 467, 470-71 (1st Cir. 1995) (citations
omitted). The parties in this case have each filed briefs and
documentary exhibits relating to plaintiff's motion for
preliminary injunctive relief. See, e.g., Plf.'s
Jan. 9, 2018 Mot. for Prelim. Inj. (Doc. No. 2); Def.
Zenk's Feb. 15, 2018 Obj. (Doc. No. 11); Plf.'s Feb.
22, 2018 Response to Def.'s Obj. (Doc. No. 18); Def.
Zenk's Mar. 16, 2018 Notice of Supp. to Obj. (Doc. No.
25); Plf.'s Mar. 27, 2018 Response to Notice of Supp. to
Obj. (Doc. No. 44). The record before this court also
includes video recordings of the November 9, 2017 incident at
the NHSP, underlying plaintiff's claim that he was
subjected to excessive force in violation of his federal
parties in this case have had a fair opportunity to present
relevant facts and arguments, and to counter the
opponent's submissions at this point, in connection with
the motion for a preliminary injunction. An additional
opportunity to do so is provided by the objection period that
will follow the issuance of this Report and Recommendation.
Accordingly, plaintiff's request for a hearing (Doc. No.
9) is properly denied, as the court may properly rule on the
preliminary injunction motion upon the record before it.
Standard for Preliminary Injunction
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.'”
Glossip v. Gross, 135 S.Ct. 2726, 2736 (2015)
(citation omitted). Irreparable harm is a factor that weighs
heavily in the analysis. Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008); Voice of the
Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d
26, 32 (1st Cir. 2011) (“‘[p]erhaps the single
most important prerequisite for the issuance of a preliminary
injunction is a demonstration that if it is not granted the
applicant is likely to suffer irreparable harm before a
decision on the merits can be rendered'” (citation
omitted)). The burden of proof is on the movant. See Esso
Std. Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir.
finding of irreparable harm must be grounded on something
more than conjecture, surmise, or a party's
unsubstantiated fears of what the future may have in
store.” Charlesbank Equity Fund II, Ltd. P'ship
v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir.
2004). Plaintiffs seeking preliminary relief must demonstrate
“that irreparable injury is likely in the
absence of an injunction.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in
original); see also Asoc. de Periodistas de P.R. v.
Mueller, 680 F.3d 70, 84-85 (1st Cir. 2012) (“when
the incident now lies in the past, there must be a
‘real and immediate threat' of future legal
violations rather than an abstract or conjectural one”
motion for a preliminary injunction, filed while Tito was an
NHSP inmate, requested that the court direct the state to
transfer him to a county jail or other correctional facility
outside of New Hampshire. Doc. No. 2, at 3. Tito claimed that
he was at risk of physical harm if he continued to litigate
this action while incarcerated at the NHSP. He asserted in
particular that he had been harassed and assaulted in the
past by NHSP corrections officers, and that corrections
officers consider themselves to be like a family to one
another. Plaintiff further asserted that NHSP officers said
that his complaints bring them negative attention and have
threatened the jobs they need to support their families, and
plaintiff alleged that NHSP Warden Zenk had been aware of his
concerns but had not taken action to protect him.
Zenk argues that plaintiff's transfer to NCF has mooted
plaintiff's motion for a preliminary injunction. The
court concurs. Plaintiff is no longer subject to the
conditions at the NHSP that he alleged violated his rights,
and he is no longer within the care and custody of Warden
Zenk or other NHSP staff who he alleged failed to protect
him, caused him harm, or retaliated against him for
exercising his rights.
has asserted that his request for a preliminary injunction is
not moot. See Doc. No. 44. He points to the
relationship between NCF Warden Michelle Edmark and NHSP
Corrections Officer Edmark, who operated the control room
camera on November 9, 2017, and he asserts that there are
“numerous staff” officers at NCF who have worked
at the NHSP. Id. at 2. He speculates, without
evidentiary support, that a gang of NCF corrections officers
and C.O. Edmark's influence on the NCF Warden provide
grounds for avoiding a finding of mootness. See id.
at 3-4. He asserts that the allegedly unlawful disciplinary
tickets he has received have made him ineligible for parole
to his consecutive sentence at the earliest possible date,
effectively extending his imprisonment for several months.
See id. at 3.
Tito may prefer to serve the remainder of his sentence
outside of the state prison system, his assertions regarding
the likelihood of future irreparable harm relating to the
claims that are in this case are all purely speculative.
Nothing before this court suggests that any injury alleged by
Tito here cannot be redressed by a damage award, as
appropriate. Cf. Charlesbank, 370 ...