14-720-cv
Perez v. Arnone


                       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 ASUMMARY ORDER@).
A PARTY CITING TO 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
23rd day of January, two thousand fifteen.

PRESENT:
            ROBERT A. KATZMANN,
                  Chief Judge,
            AMALYA L. KEARSE,
            REENA RAGGI,
                  Circuit Judges.
_____________________________________

Ometrius Perez,
                        Plaintiff-Appellant,
                  v.                                                        14-720

Leo Arnone, Department of Correction, Connecticut, Patz, Captain, Wanda White-Lewis, Karen
Danis, Coleman, Doctor, Guadaprama, Baker, Roy, Byers, Nuzzo, Johnson, Correctional
Managed Health Care, Michael Desena, Brian Hicock, Smyth, Doctor, Steve Swan, Erfe, Ballaro,
Pluszynski, Reid, Brown, Correctional Enterprises of Connecticut, Angel Quiros, Rikel Lightner,
Alexander, Lieutenant, Blanchard, CTO.

                  Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                                     Ometrius Perez, pro se, Newtown,
                                                             CT.

FOR DEFENDANTS-APPELLEES:                                    Matthew B. Beizer, Assistant
                                                             Attorney General, Office of the
                                                             Attorney General, Hartford, CT.
        Appeal from an order of the United States District Court for the District of Connecticut

(Bryant, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED in part and VACATED in part, the

appeal is DISMISSED in part for lack of jurisdiction, and the action is REMANDED for further

proceedings consistent with this order.

        Appellant Ometrius Perez, proceeding pro se, appeals from so much of the district court’s

orders as denied his motions for a preliminary injunction and for entry of default judgment. We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.

        We do not have jurisdiction to consider an interlocutory appeal from the denial of a motion

for default judgment. See In re Wills Lines, Inc., 227 F.2d 509, 511 (2d Cir. 1955). Accordingly,

insofar as Perez appeals from the denial of his motions for default judgment, the appeal is

dismissed for lack of jurisdiction.

        We review the denial of injunctive relief for abuse of discretion. Kamerling v. Massanari,

295 F.3d 206, 214 (2d Cir. 2002). A party seeking a preliminary injunction altering the status quo

must establish: (1) a substantial likelihood of success on the merits; (2) irreparable harm; (3) that

the balance of equities tips in his favor; and (4) that an injunction is in the public interest. See

New York Progress and Protection PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013). Irreparable

harm is “the single most important prerequisite for the issuance of a preliminary injunction.” Bell

& Howell: Mamiya Co. v. Masel Supply Co. Corp., 719 F.2d 42, 45 (2d Cir. 1983) (internal

quotation omitted). ‘“The existence of factual disputes necessitates an evidentiary hearing . . .
before a motion for a preliminary injunction may be decided.”’ Kern v. Clark, 331 F.3d 9, 12 (2d

Cir. 2003) (quoting Commodity Futures Trading Comm’n v. Incomco, Inc., 649 F.2d 128, 131 (2d

Cir. 1981)).

         Here, the district court properly denied relief on Perez’s medical claims because Perez

provided no evidence that the defendants failed to give him appropriate medical treatment.

However, the court erred in ruling that Perez’s transfer to a new correctional facility mooted his

claim as to the conditions of his confinement, and in failing to hold an evidentiary hearing with

respect to whether he was deprived of meaningful access to prison library services.

    I.      Access to Prison Library Services

         To establish a violation of Title II of the Americans with Disabilities Act, 43 U.S.C. §

12131 et seq. (“ADA”), a plaintiff must prove: “(1) that he is a ‘qualified individual’ with a

disability; (2) that he was excluded from participation in a public entity’s services . . . ; and (3) that

such exclusion or discrimination was due to his disability.” Hargrave v. Vermont, 340 F.3d 27,

34-35 (2d Cir. 2003). A state prison’s law library constitutes a public service under the ADA.

See generally Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 210-11 (1998).

Exclusion may be demonstrated by showing that the defendants failed to provide an “otherwise

qualified plaintiff with disabilities ‘meaningful access’ to the program or services sought.”

Henrietta D. v. Bloomberg, 331 F.3d 261, 282-83 (2d Cir. 2003).

         The district court stated that there were no facts in dispute with respect to the issue of

Perez’s access to prison library services, and denied him relief based on its acceptance of the

defendants’ contention that they had already adequately accommodated Perez’s disability in this

regard. However, Perez has identified disputed issues of fact that require a remand for an


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evidentiary hearing. See Fengler v. Numismatic Americana, Inc., 832 F.2d 745, 747-48 (2d Cir.

1987) (remanding for evidentiary hearing). Perez provided evidence that the defendants deprived

him of a computer, word processing programs for the visually impaired, adequate writing tools,

envelopes for the blind, and an electronic magnifier. He also provided evidence that the

Department of Corrections (“DOC”) deprived him of large print texts despite DOC regulations

requiring that these materials be made available, and disputed the DOC’s assertion, in response to

Perez’s preliminary injunction motion, that it had provided an electronic magnifier. Although the

defendants provided evidence that they were working on providing word processing programs,

there are factual issues as to whether the programs have been, or even could be, made

meaningfully available to Perez. Nor does the defendants’ attempt to cure moot the claim.

Reforms taken under the pressure of litigation do not moot claims for injunctive relief unless

“subsequent events make it absolutely clear that the allegedly wrongful behavior could not

reasonably be expected to recur.” Parents Involved in Community Schools v. Seattle Sch. Dist.

No. 1, 551 U.S. 701, 719 (2007) (quotation and alteration omitted). “The existence of [these]

factual disputes necessitates an evidentiary hearing . . . .” Kern, 331 F.3d at 12 (internal quotation

marks omitted). Accordingly, we vacate the district court’s order in part and remand for an

evidentiary hearing on the issue of Perez’s access to prison library services.


   II.      Conditions of Confinement

         Perez’s claims with respect to his requests for a single cell are not mooted by his

subsequent transfer to a new facility. Perez alleged that the problem with double-celling persisted

at his new facility, and the DOC Commissioner, a named defendant, has the power to implement

the requested relief. See Davis v. New York, 316 F.3d 93, 99 (2d Cir. 2002) (injunctive relief not

                                                  4
mooted by transfer where prisoner complained that the problem persisted after transfer). Further,

Perez provided evidence that he was diagnosed with PTSD and an anxiety disorder; that he had a

single cell designation in New York prior to his transfer to Connecticut because of his mental

health issues; that the DOC’s own regulations require screening to determine whether

double-celling is appropriate for inmates with mental health problems; and that he filed numerous

grievances complaining that double-celling exacerbated his suicidal tendencies. The defendants

did not contest these allegations, state whether any evaluations had been done, or address whether

Perez was likely to succeed on an Eighth Amendment claim. Although double-celling is not a per

se Eighth Amendment violation, a full factual record is necessary to determine whether

double-celling a particular inmate is unconstitutional. See generally Walker v. Schult, 717 F.3d

119, 129 (2d Cir. 2013). Accordingly, the district court’s order is vacated in part and remanded

for reconsideration on the issue of Perez’s request for a single cell.

   III.      Medical Claims

          The district court properly denied Perez preliminary injunctive relief for medical treatment

of his wrist and knee. Perez provided no evidence – other than unsupported assertions – that the

defendants failed to provide appropriate medical treatment. See New York City Environmental

Justice Alliance v. Giuliani, 214 F.3d 65, 72-73 (2d Cir. 2000) (affirming denial of injunctive relief

because plaintiffs failed to present evidence on which district court could conclude a likelihood of

success).




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       We have considered all of Perez’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM in part, VACATE in part, and DISMISS in part, and REMAND the

action for further proceedings consistent with this order.

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




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