     08-4350-pr
     Johnson v. Connolly



                           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 .


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 25 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                         Chief Judge,
 8                ROGER J. MINER,
 9                RICHARD C. WESLEY,
10                         Circuit Judges.
11
12
13       - - - - - - - - - - - - - - - - - - - -X
14       JOHNATHAN JOHNSON,
15
16                    Plaintiff-Appellant,
17
18                    -v.-                                         08-4350-pr
19
20       B. CONNOLLY, Doctor; MILES, Nurse; N.
21       SMITH, Nurse; JOHN BURGE,
22       Superintendent; LUCIEN LeCLAIRE, JR.;
23       BRIAN FISCHER; ATKINSON, Nurse;
24       MULVERHILL, Nurse; N. BEZIO; THERESA
25       KNAPP-DAVID,
26
27                    Defendants-Appellees,


                                                  1
 1
 2   JOHN ALVES, Doctor, JOHN & JANE DOES,
 3   CLASSIFICATION AND MOVEMENT,
 4
 5            Defendants.
 6
 7   - - - - - - - - - - - - - - - - - - - -X
 8
 9   FOR APPELLANT:    Johnathan Johnson, pro se, Malone, NY.
10
11   FOR APPELLEES:    Andrew B. Ayers, Assistant Solicitor
12                     General (Denise A. Hartman, Assistant
13                     Solicitor General, on the brief), for
14                     Andrew Cuomo, Attorney General of the
15                     State of New York, Office of the Attorney
16                     General, Albany, NY.
17
18        Appeal from an order of the United States District
19   Court for the Northern District of New York (McAvoy, J.).
20
21        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22   AND DECREED that the judgment of the district court be
23   AFFIRMED.
24
25        Johnathan Johnson appeals from an August 21, 2008 order
26   of the United States District Court for the Northern
27   District of New York (McAvoy, J.), which denied his motion
28   for a preliminary injunction. Johnson sought transfer to a
29   more secure facility based on his concerns about his safety
30   and the safety of his family members during prison visits.
31   We assume the parties’ familiarity with the underlying
32   facts, the procedural history, and the issues presented for
33   review.
34
35        “We review the denial of a preliminary injunction for
36   abuse of discretion.” Lynch v. City of N.Y., 589 F.3d 94,
37   99 (2d Cir. 2009). Ordinarily, “a party seeking a
38   preliminary injunction [must] show (a) irreparable harm and
39   (b) either (1) likelihood of success on the merits or (2)
40   sufficiently serious questions going to the merits to make
41   them a fair ground for litigation and a balance of hardships
42   tipping decidedly toward the party requesting the
43   preliminary relief.” Citigroup Global Markets, Inc. v. VCG
44   Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d
45   Cir. 2010) (internal quotation marks omitted); see
46   also id. at 38 (upholding this “venerable standard for

                                  2
 1   assessing a movant’s probability of success on the merits”).
 2   However, a party seeking “a ‘mandatory’ injunction--that is,
 3   as in this case, an injunction that will alter rather than
 4   maintain the status quo--. . . must meet the more rigorous
 5   standard of demonstrating a ‘clear’ or ‘substantial’
 6   likelihood of success on the merits.” Doninger v. Niehoff,
 7   527 F.3d 41, 47 (2d Cir. 2008).
 8
 9        Liberally construed, Johnson’s motion asserts a
10   violation of the Eighth Amendment based on purported
11   deliberate indifference to inmate safety. See Farmer v.
12   Brennan, 511 U.S. 825, 857 (1994) (“The Eighth Amendment
13   guarantees each prisoner that reasonable measures will be
14   taken to ensure his safety.”). As explained in this Court’s
15   order denying Johnson’s previous motion for a preliminary
16   injunction in the same underlying action, Johnson v. Miles,
17   355 F. App’x 444, 446 (2d Cir. 2009), this alleged violation
18   of a constitutional right satisfies Johnson’s burden to
19   demonstrate irreparable harm, see Statharos v. N.Y. City
20   Taxi and Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999)
21   (“Because plaintiffs allege deprivation of a constitutional
22   right, no separate showing of irreparable harm is
23   necessary.”).
24
25        Nevertheless, we find no abuse of discretion in the
26   district court’s denial of a preliminary injunction, because
27   Johnson failed to demonstrate a clear or substantial
28   likelihood of success on the merits of his Eighth Amendment
29   claim. “The test for deliberate indifference is twofold.
30   First, the plaintiff must demonstrate that he is
31   incarcerated under conditions posing a substantial risk of
32   serious harm. Second, the plaintiff must demonstrate that
33   the defendant prison officials possessed sufficient culpable
34   intent.” Hayes v. N.Y. City Dep’t of Corrections, 84 F.3d
35   614, 620 (2d Cir. 1996). Even assuming that Johnson’s
36   allegations regarding the May 2008 incident demonstrate that
37   the prison visitation protocols pose “a substantial risk of
38   serious harm,” Johnson failed to demonstrate that any prison
39   official “possessed sufficient culpable intent.” Id. “[A]
40   prison official has sufficient culpable intent if he has
41   knowledge that an inmate faces a substantial risk of serious
42   harm and he disregards that risk by failing to take
43   reasonable measures to abate the harm.” Id. We conclude
44   that reasonable measures were taken to abate any such harm
45   based on (i) the investigation of the May 2008 incident,
46   (ii) the monitoring of inmates and visitors during visits,


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 1   and (iii) Johnson’s designation to the secure Special
 2   Housing Unit.
 3
 4        We have considered all of Johnson’s arguments on this
 5   appeal and find them to be without merit. Accordingly, the
 6   order of the district court is hereby AFFIRMED.
 7
 8
 9                              FOR THE COURT:
10                              CATHERINE O’HAGAN WOLFE, CLERK
11




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