Opinion
No. 02 Civ. 6114 (SAS)
January 24, 2003
Lawrence R. Estrella, #01228-049-FB, Otisville, New York, for Plaintiff (Pro Se).
Danielle A. Gentin, Assistant United States Attorney New York, New York, for Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiff seeks a declaration that he is not subject to the notification procedures found in 18 U.S.C. § 4042 (b) and Program Statement ("PS") 5110.15, entitled "Notification of Release to State and Local Law Enforcement Officials." Plaintiff also seeks damages for the deprivation of constitutionally protected rights and injunctive relief. This Order addresses plaintiff's request for injunctive relief.
In his Amended Complaint, plaintiff asks this Court to "enjoin the Defendants by injunctive relief who continue to cause the aforementioned harms to this day." Amended Complaint, Wherefore Clause. Plaintiff does not state, however, what he specifically wants defendants to be enjoined from doing. Reading his pro se Complaint liberally, as required by Haines v. Kerner, 404 U.S. 519, 520 (1972), plaintiff presumably seeks an Order directing defendants to: (1) correct the allegedly erroneous classification of plaintiff as a prisoner subject to notification under 18 U.S.C. § 4042 (b) and Program Statement 5110.15, and (2) discontinue the threat of notifying state and local law enforcement of his past conviction upon his release from custody.
"The purpose of a preliminary injunction is to prevent irreparable injury and preserve a court's ability to render a meaningful decision on the merits." Tactica Int'l, Inc. v. Atlantic Horizon Int'l, Inc., 154 F. Supp.2d 586, 597 (S.D.N.Y. 2001) (citing WarnerVision Entm't v. Empire of Carolina, Inc., 101 F.3d 259, 261-62 (2d Cir. 1996)). Although the decision whether to grant a preliminary injunction lies squarely within the court's discretion, "a preliminary injunction is an extraordinary measure that should not be routinely granted." Tactica, 154 F. Supp.2d at 597 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
In order to obtain a preliminary injunction, a plaintiff must ordinarily demonstrate: (1) the possibility of irreparable harm; and (2) either (a) a likelihood of success on the merits, or (b) a sufficiently serious question going to the merits combined with a balance of hardships tipping decidedly in favor of the moving party. See SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharms., Inc., 211 F.3d 21, 24 (2d Cir. 2000). A heightened standard applies where the injunction which plaintiff seeks is mandatory in nature. McKenna, 2002 WL 338375, at *4. Accordingly, a mandatory injunction, as requested by plaintiff, should only issue if he demonstrates a clear or substantial likelihood of success on the merits. See id. (citing Jolly v. Coughlin, 76 F.3d 468, 473-74 (2d Cir. 1996), and S.E.C. v. Unifund SAL, 910 F.2d 1028, 1040 (2d Cir. 1990).
A mandatory injunction is one which would "`alter the status quo by commanding some positive act.'" McKenna v. Wright, No. 01 Civ. 6571, 2002 VIL 338375, at *4 (S.D.N.Y. Mar. 4, 2002) (quoting Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995).
As to the merits, plaintiff argues that PS 5110.15 conflicts with 18 U.S.C. § 4042 (b), the statute it was meant to effectuate. According to plaintiff, 18 U.S.C. § 4042 (b) only applies if the current offense for which an inmate was convicted is for a drug trafficking crime or a crime of violence. See Memorandum of Law in Support of Amended Complaint ("Pl. Mem.") at 4. Plaintiff bases this argument on the wording of the statute which makes it applicable to: "A prisoner . . . if the prisoner was convicted of" a drug trafficking crime or crime of violence. 18 U.S.C. § 4042 (b)(3) emphasis added. Plaintiff interprets the "was convicted of language" to apply to a single event, the current offense of conviction, and not to prior convictions. See Pl. Mem. at 8. In support of this position, plaintiff cites Henrickson v. Guzik, 249 F.3d 395, 399 (5th Cir. 2001) ("An examination of the statute's text and overall scheme manifest that Congress was only requiring the Bureau to notify if the prisoner's current conviction was for a crime of violence or a drug trafficking crime.")
PS 5110.15 applies the notification procedures to any prisoner "whose criminal history as determined by staff, in the exercise of professional judgment, includes a conviction for `drug trafficking' or a `crime of violence' . . ." PS 5110.15 ¶ 9(b) (emphasis added).
Plaintiff's current conviction is for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). The Bureau of Prisons ("BOP") uses the definition of "crime of violence" found in 18 U.S.C. § 924 (c)(3) to include any offense that is a felony and: (1) has as an element, the use, attempted use, or threatened use of physical force against the person or property of another; or (2) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. See PS 5110.15 ¶ 8(b). At first blush, a section 922(g) violation would appear to be a crime of violence. However, the Third Circuit has held that possession of a firearm by a felon is not a crime of violence for purposes of 18 U.S.C. § 4042 (b). See Royce v. Hahn, 151 F.3d 116, 124 (3rd Cir. 1998). This point need not be belabored as the BOP used plaintiff's prior convictions for assault and battery and robbery, not his current conviction, to classify him as a prisoner subject to the notification procedures at issue. See Response to Request for Administrative Remedy, Ex. B to Amended Complaint ("A review of this matter indicates that you have past convictions for violence and are subject to notification under 18 U.S.C. § 4042 (b).").
This argument was rejected, however, by the BOP at every administrative level available to plaintiff. In doing so, the BOP specifically noted that plaintiff was convicted and incarcerated in the Second, not the Fifth, Circuit. See Response to Administrative Remedy Appeal, Ex. B to Amended Complaint 9 ("Henrickson v. Guzik, a 5th Circuit decision, does not apply to you as you reside in the 2nd Circuit."). Plaintiff filed a Request for Administrative Remedy at the prison administrative level, basically seeking the same relief requested here. See Request for Administrative Remedy, Ex. D to Amended Complaint. Plaintiff's request was denied by the warden at FCI Otisville. See Response to Request for Administrative Remedy, Ex. D to Amended Complaint ("[Y]our convictions for Assault and Battery with a Dangerous Weapon (1975) and Armed Robbery (1979) satisfy the notification requirements" in accordance with PS 5110.15). Plaintiff appealed the unfavorable ruling to the Regional Director of the Federal Bureau of Prisons, Northeast Regional Office. See Regional Administrative Remedy Appeal, Ex. E to Amended Complaint. The ruling was affirmed on appeal. See Response to Administrative Remedy Appeal, Ex. E to Amended Complaint (stating that PS 5110.15 requires notification for any federal prisoner who has a prior conviction for a crime of violence). Plaintiff finally appealed to the General Counsel of the BOP. See Central Office Administrative Remedy Appeal, Ex. B to Amended Complaint. The ruling was again affirmed on appeal. See Response to Administrative Appeal, Ex. B to Amended Complaint ("[W]e do not find any evidence to support your assertion P.S. 5110.15 does not apply to past convictions.").
In sum, although there may be some merit in plaintiff's position, the issue has never been addressed in this Circuit. I need not decide, however, whether plaintiff has shown a clear or substantial likelihood of success on the merits. Assuming, arguendo, that plaintiff has made such a showing, he is still not entitled to a preliminary injunction as he fails to satisfy the irreparable harm requirement. "`Because a showing of probable irreparable harm is the single most: important prerequisite for the issuance of a preliminary injunction, the moving party moo: first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.'" Stoner v. New York City Ballet Co., No. 99 Civ. 196, 2001 WL 1505492, at *1 (S.D.N.Y. Nov. 26, 2001) (quoting Reuters, Ltd. v. United Press Int'l Inc., 903 F.2d 904, 907 (2d Cir. 1990) (internal quotations and citations omitted)).
Here, plaintiff's release date is tentatively schedule for 2010. Because notification would be given at least five days prior to plaintiff's release from custody, the harm flowing from his alleged mis-classification, if any, cannot be considered irreparable. See Shapiro v. Cadman lowers, Inc., 51 F.3d 328, 332 (2d Cir. 1995) ("To establish irreparable harm, the movant must demonstrate `an injury that is neither remote nor speculative, but actual and imminent' and that cannot be remedied by an award of monetary damages.") (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)); Rodriguez v. DeBuono, 162 F.3d 56, 62 (2d Cir. 1998) (per curiam) ("[T]he harm must be so imminent as to be irreparable if a court waits until the end of trial to resolve the harm."). Because this Court has approximately seven years to reach a decision on the merits, a preliminary injunction is unnecessary at this time.
For the foregoing reasons, plaintiff has not met the irreparable harm requirement. His request for injunctive relief is therefore denied.