10-2779-pr
Amaker v. Fischer



                          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 ANY PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 20th day of December, two thousand eleven.

PRESENT:
            JOSÉ A. CABRANES,
            ROSEMARY S. POOLER,
            RICHARD C. WESLEY,
                   Circuit Judges.
_________________________________________

ANTHONY D. AMAKER,

                    Plaintiff - Appellant,

                    v.                                           10-2779-pr

BRIAN S. FISCHER, ROBERT KIRKPATRICK, LUCIEN J.
LECLAIRE, JR., ROBERT WILLIAM SCHUMACHER, II,
W.R. SMITH, G. MONAHAN, ANTONY ANNUCCI,
COMMANDING OFFICER D. SCHERER, JANE DOE,
JOHN DOE, ET. AL., COMMANDING OFFICER J. SCHULTZ,
COMMANDING OFFICER BOB DOE, SARGEANT HARTMAN,
COMMANDING OFFICER C. JACOBS, LT. KEENAN,
SERGEANT KEOHANE, JOSEPH T. SMITH, JOHN MALY, LT.
GARDNER, SERGEANT L. NELSON, SERGEANT J. WARLAU,
EDWARDS, COMMANDING OFFICER, MS. MILLER, R.
RANDAZZO, COMMANDING OFFICER, MCGUIRE,
COMMANDING OFFICER, T. GRANT, COMMANDING OFFICER,
PELAN, LT., K. CUNNINGHAM, COMMANDING OFFICER,
CLINTON, COMMANDING OFFICER, MOSS, SERGEANT,
J. HASBROOK, COMMANDING OFFICER, JOHN DOE,
COMMANDING OFFICER., R. LAW, COMMANDING OFFICER,
R. STROKES, COMMANDING OFFICER, BEDENDYK,
COMMANDING OFFICER, D. WILKINS, LT., KRUSAN, LT.,
BROCHET, SERGEANT, K. HOETGER, COMMANDING OFFICER,
HINDLEY, COMMANDING OFFICER, D. MEIER, SERGEANT,
BRIAN MCCOLLOUGH, MS. HILL, V. RIZZO, ET AL.,

            Defendants-Appellees.
_________________________________________


FOR APPELLANT:                           Anthony D. Amaker, pro se, Attica Correctional Facility, Attica,
                                         NY.

FOR APPELLEES:                           Barbara D. Underwood, Andrea Oser, and Martin A. Hotvet, on
                                         behalf of Eric T. Schneiderman, Attorney General of the State of
                                         New York.


       Appeal from a judgment of the United States District Court for the Western District of New
York (H. Kenneth Schroeder, Jr., Magistrate Judge)1 entered June 23, 2010.

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the District Court is AFFIRMED.

       Appellant Anthony D. Amaker, pro se, a familiar litigant in this Court,2 appeals from the denial of
his motion for a preliminary injunction, a temporary restraining order, and an expedited hearing.
Amaker sought to challenge appellees’ implementation of Directive 4913 of the New York State


           1
             The parties consented to proceed before a Magistrate Judge for all proceedings pursuant to
   28 U.S.C. § 636(c).
           2
             See, e.g., Amaker v. Kelley, 399 F. App’x 688 (2d Cir. 2010); Amaker v. Haponik, 125 F. App’x 375 (2d
   Cir. 2005); Amaker v. Zon, 117 F. App’x 806 (2d Cir. 2005); Amaker v. Kelly, 115 F. App’x 104 (2d Cir. 2004);
   Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Amaker v. Hakes, 5 F. App’x 77 (2d Cir. 2001); Amaker v. Weiner,
   179 F.3d 48 (2d Cir. 1999); see also Amaker v. Goord, No. 06-cv-490 (W.D.N.Y. filed July 24, 2006) (originally
   filed as No. 06-cv-0369 in N.D.N.Y.); Amaker v. Goord, No. 06-cv-0602 (W.D.N.Y. filed Sept. 7, 2006);
   Amaker v. Goord, No. 03-cv-1003 (N.D.N.Y. filed Aug. 13, 2003); Amaker v. Goord, No. 98 Civ. 3634
   (S.D.N.Y. filed May 21, 1998); Amaker v. Coombe, No. 96 Civ. 1622 (S.D.N.Y filed Mar. 6, 1996); Amaker v.
   Artuz, No. 98 Civ. 0536 (S.D.N.Y. filed Jan. 27, 1998); Amaker v. Zon, No. 94-cv-0843 (W.D.N.Y. filed Nov.
   18, 1994); Amaker v. Hakes, No. 93-cv-840 (W.D.N.Y. filed Oct. 30, 1993); Amaker v. Adeyeye, No. 89 Civ.
   7628 (S.D.N.Y. filed Nov. 15, 1989).

                                                        2
Department of Correctional Services (“DOCS”), which limits the amount of property (including legal
papers) an inmate may possess in his cell.

                                               BACKGROUND

        We assume the parties’ familiarity with the underlying facts, procedural history of the case, and
issues on appeal.

         Briefly, in 2009, Amaker, pro se and incarcerated, filed an amended complaint pursuant to 42
U.S.C. § 1983, alleging violations of his constitutional rights by officials of the New York State
Department of Correctional Services (“DOCS”) (jointly, “appellees”). Generally, Amaker asserted that
appellees had retaliated against him for having successfully obtained, in December 2007, a preliminary
injunction in the District Court, which enjoined DOCS employees from: (1) prohibiting Amaker and
other members of the Nation of Islam from attending Nation of Islam services and classes on account
of their dreadlocks; and (2) punishing the members of the Nation of Islam for refusing to cut their hair
or refusing to change their religious affiliations to Rastafarian in accordance with DOCS’ policy.3



         As relevant here, Amaker alleged that an officer had told him that DOCS was “going to do
something about [his] legal property,” and that “[DOCS] Commissioner Fischer ha[d] put out a
memorandum to change the amount of property[,] including legal property [, that an inmate may possess
in his cell].” Am. Compl. ¶ 49. He asserted that this would impose a burden on him because he had
“several [pending] federal litigations [and New York] court of claims actions requiring discovery.” Id.
Amaker further stated that “Mr. Fischer is telling prisoners they will only be allowed one duffel bag of
active legal work,” which was an arbitrary rule implemented in “retaliation against civil litigations,” and
that his legal paperwork concerning his criminal conviction alone “cover[ed] over one duffel bag.” Id.

          In January 2010, Amaker moved for a preliminary injunction, a temporary restraining order,
and an expedited hearing, in which he sought to restrict appellees from limiting his legal work product
to one duffel bag. Although Amaker referred to Directive 4913 as retaliatory, his sole argument was that
Directive 4913 was unconstitutional because it burdened his access to the courts and was unrelated to
institutional safety or any correctional goal. Amaker referenced two pending appeals before this Court
that he asserted would be prejudiced by Directive 4913: (1) Amaker v. Goord, 09-2993-pr; and (2) Amaker
v. Goord, 07-1007-pr.




           3
               In June 2010, the District Court made the injunction permanent.

                                                        3
        In opposition, appellees argued that Amaker’s motion should be denied because he could not
demonstrate “a likelihood of success on the merits,” as: (1) Directive 4913 did not impede Amaker’s
access to the courts; and (2) their implementation of Directive 4913 was not in retaliation for Amaker’s
success in obtaining the December 2007 preliminary injunction. ROA doc. 80 at 9–14.

        The Magistrate Judge denied Amaker’s motion for a preliminary injunction,4 finding that
Amaker had failed to meet the standard for a preliminary injunction because he could not demonstrate
that he would be irreparably harmed absent the injunction, and, even if he was able to demonstrate
irreparable harm, it was unlikely that he would succeed on the merits of his claim.

         With respect to the issue of irreparable harm, the Magistrate Judge found that there was “no
evidence that [Amaker] ha[d] suffered an actual injury as a result of DOCS’ Directive 4913,” noting that
he would “not credit [Amaker’s] complaint that he has been completely deprived of his legal materials
when that deprivation stems from his own refusal to cull one draft bag of legal materials from his five
draft bags of legal materials.” ROA doc. 87 at 11–12. The Magistrate Judge went on to state that “[a]ny
claim that one draft bag of legal materials is insufficient to allow [Amaker] to meaningfully prosecute his
legal claims is completely speculative pending [his] good faith attempt to do so.” Id. at 12.



         Additionally, the Magistrate Judge determined that Amaker was unlikely to succeed on the merits
of his claim because Directive 4913 “was reasonably related to DOCS’ legitimate interest in maintaining
prison security and protecting inmates from health and safety risks.” Id. Specifically, the Magistrate
Judge explicitly noted that it was rational for DOCS to conclude that five draft bags of legal materials
could: (1) pose a fire hazard; (2) impede DOCS’ efforts to control contraband; and (3) impose
administrative burdens on DOCS during an inmate’s transfer to a different facility. Id. Moreover, the
Magistrate Judge stated that DOCS had balanced inmates’ right of access to the courts with its legitimate
penological interests “by allowing inmates to possess an additional draft bag of personal property to
accommodate legal materials pertaining to active legal matters.” Id. Additionally, the Magistrate Judge
stated that Directive 4913 “appears to permit inmates to choose between legal materials and other
personal property with respect to the four draft bags DOCS will transfer at state expense should the
fifth draft bag prove insufficient.” Id. at 13. In conclusion, the Magistrate Judge ordered that Amaker
be “afforded sufficient opportunity to sort through his five draft bags of legal materials to cull one draft
bag of legal materials to retain and to dispose of the remaining materials in accordance with . . . DOCS
Directive 4913.” Id. The Magistrate Judge’s order was entered on June 23, 2010.



            4
               The Magistrate Judge did not expressly address Amaker’s request for a hearing or temporary
    restraining order.

                                                       4
         Amaker timely filed a notice of appeal on July 8, 2010. See ROA docs. 87, 92. On appeal,
Amaker contends that the district court “abused it[s] discretion by not following [this Court’s]
precedents that the confiscation of [his] legal work product . . . was an extraordinary matter of law” and
“[t]hat free speech and freedom of expression to legal work product is a substantive right . . . not
subject[] to procedural manners of blocking or hindering the right to petition the court [for] redress of
grievance[s] protected by the First Amendment.” Appellant’s Br. at 2. Specifically, he asserts that
Directive 4913 was aimed toward stopping the “expression of speech to a legal forum,” id. at 13;
conflicted with DOCS regulations; amounted to content and viewpoint discrimination; and was arbitrary
and irrational, as it was based on “an exagger[a]ted response to control litigation,” id. at 11. He states
that he “was subjected to retaliation for getting the preliminary injunction in the first place,” but does
not elaborate how the implementation of Directive 4913 was retaliatory. Id. at 8.



                                                DISCUSSION

        “We review a district court’s decision to grant or deny a preliminary injunction for abuse of
discretion.” Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011) (citation omitted).

         A party seeking a preliminary injunction must generally establish (1) irreparable harm and (2)
either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of
his claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in
favor of the moving party. However, where, as a here, “[a] party seek[s] to enjoin ‘governmental action
taken in the public interest pursuant to a statutory or regulatory scheme[,]’ [he] cannot rely on the ‘fair
ground for litigation’ alternative even if [he] seeks to vindicate a sovereign or public interest,” but “must
establish a likelihood of success on the merits.”5 Id. (quoting Monserrate v. N.Y. State Senate, 599 F.3d
148, 154 (2d Cir. 2010)).
                                             I. Irreparable Harm
         For purposes of this appeal, we assume, arguendo, that Amaker could demonstrate irreparable
       6
harm. The implementation of Directive 4913 directly limited Amaker’s speech—that is, it is not

            5
              Appellees assert that the relief sought by Amaker should be characterized as a
    mandatory injunction, which would require him to meet an even higher burden. See Cacchillo v. Insmed, Inc.,
    638 F.3d 401, 406 (2d Cir. 2011). “A mandatory preliminary injunction should issue only upon a clear
    showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will
    result from a denial of preliminary relief.” Id. (citation and internal quotation marks omitted). We need not
    decide whether Amaker’s requested relief would be properly characterized as a mandatory injunction,
    inasmuch as he failed to meet the lower “likelihood of success on the merits” standard.
            6
              The Magistrate Judge concluded that Amaker could not demonstrate irreparable harm
    because the deprivation of his legal papers stemmed from “his own refusal to cull one draft bag of legal

                                                        5
disputed that DOCS officials directly limited the amount of legal papers he could possess in his cell and
confiscated his legal papers because he exceeded the allowable quantity. Irreparable harm may normally
be presumed under such circumstances. See, e.g., Bronx Household of Faith v. Bd. of Educ. of City of N.Y.,
331 F.3d 342, 349 (2d Cir. 2003) (“Where a plaintiff alleges injury from a rule or regulation that directly
limits speech, the irreparable nature of the harm may be presumed.”); N.Y. Magazine, a Div. of Primedia
Magazines, Inc. v. Metro. Transp. Auth., 136 F.3d 123, 127 (2d Cir. 1998) (“The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” (internal
citation and quotation marks omitted)).

                                                     II. Merits

        A.       Denial-of-Access-to-Courts Claim

        It is well established that prisoners have a constitutional right to access the courts. Bounds v.
Smith, 430 U.S. 817, 821 (1977). “The right of access to the courts requires that prisoners defending
against criminal charges or convictions (either directly or collaterally) or challenging the conditions of
their confinement . . . not be impeded from presenting those defenses and claims for formal
adjudication by a court.” Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir. 2004). We need not decide
whether Amaker is likely to succeed on his claim that the implementation of Directive 4913 interfered
with his right to access the courts because he has failed to establish standing for this claim.

        To establish standing for a claim for the denial of access to the courts, an inmate must show that
he has suffered an “actual injury” traceable to the challenged conduct of prison officials—that is, that a
“nonfrivolous” legal challenge to his judgment of conviction or conditions of confinement “had been
frustrated or was being impeded” due to the actions of prison officials. Lewis v. Casey, 518 U.S. 343,
351–53, 355 (1996).

         Amaker failed to show he suffered an “actual injury” as a result of the personal property
limitation placed on him by DOCS’s policy. Amaker conclusorily asserts that he “has already suffered
prejudice because an appeal was dismissed for not having the necessary low[er] court’s proceedings on
[a] prior motion to dismiss[] and summary judgment,” and that legal papers were unavailable to him in
“an appeal after a trial.” Although he does not specify what appeal was dismissed, he is presumably
referring to his appeal in Amaker v. Goord, 09-2993-pr, from a judgment in an unrelated action he had
brought in the Northern District of New York, an appeal that was dismissed by this Court in February
2011 after Amaker failed to file his appellate brief.



    materials from his five draft bags of legal materials.”

                                                              6
        In asserting that he was prejudiced, Amaker makes no attempt to show that his appeal docketed
under 09-2993-pr, or any other pending litigation, had any merit. Cf. Cochran v. Morris, 73 F.3d 1310,
1317 (4th Cir. 1996) (en banc) (explaining that, in asserting a denial-of-access-to-courts claim, a plaintiff
cannot rely on “conclusory allegations”). Nor did he make such a showing before the District Court.
Accordingly, notwithstanding Amaker’s challenges to the implementation of Directive 4913, the
Magistrate Judge did not err or “abuse his discretion,” see Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)
(explaining “abuse of discretion”), in declining to grant a preliminary injunction insofar as Amaker’s
motion was predicated on a denial-of-access-to-courts claim, as he failed to establish standing to assert
such a claim.

        B.      Retaliation

         “Prisoners, like non-prisoners, have a constitutional right of access to the courts and to petition
the government for the redress of grievances, and prison officials may not retaliate against prisoners for
the exercise of that right.” Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). “But because prisoner
retaliation claims are easily fabricated, and accordingly pose a substantial risk of unwarranted judicial
intrusion into matters of general prison administration, [the Court is] careful to require non-conclusory
allegations.” Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal citation and quotation marks
omitted). To establish a retaliation claim, the prisoner “bears the burden of showing, first, that he
engaged in constitutionally protected conduct and, second, that the conduct was a substantial or
motivating factor for the adverse actions taken by prison officials.” Id.

         Although Amaker asserted a retaliation claim before the District Court, he makes no non-
conclusory argument about his retaliation claim on appeal and does not elaborate as to how the
implementation of Directive 4913 was in retaliation for successfully obtaining a December 2007
preliminary injunction. Consequently, any potential retaliation claim is deemed waived. See LoSacco v.
City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (“[The Court] need not manufacture claims of error for
an appellant proceeding pro se.”); see also Fed. R. App. P. 28(a)(9)(A) (noting that an appellant’s brief must
contain the “appellant’s contentions and the reasons for them, with citations to the authorities and parts
of the record on which the appellant relies”); Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005)
(deeming issue waived where appellant “devote[d] only a single conclusory sentence” to that issue).



                                                III. Hearing

          “A determination not to hold an evidentiary hearing is reviewed for abuse of discretion.” United
States v. Amico, 486 F.3d 764, 779 (2d Cir. 2007). Notwithstanding Amaker’s concerns about appellees’
alleged non-compliance with the December 2007 preliminary injunction, he has not shown that an

                                                      7
evidentiary hearing would help resolve any material factual issues related to his present request for
injunctive relief concerning the implementation of Directive 4913. See Maryland Cas. Co. v. Realty Advisory
Bd. on Labor Relations, 107 F.3d 979, 984 (2d Cir. 1997) (“[T]here is no hard and fast rule in this circuit
that oral testimony must be taken on a motion for a preliminary injunction or that the court can in no
circumstances dispose of the motion on the papers before it.” (internal quotation marks omitted)). In
the circumstances presented here, there was no abuse of discretion in the decision of the Magistrate
Judge to deny Amaker’s motion without a hearing.



                                            CONCLUSION

        We have considered all of Amaker’s claims on appeal and find them to be without merit. For
the reasons stated above, the order of the District Court is hereby AFFIRMED.




                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




                                                    8
