Tito v. State of New Hampshire, et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Albert Tito
v. 	Civil No. 18-cv-025-SM
State of New Hampshire1
REPORT AND RECOMMENDATION
Before 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
1The court has construed the pleadings as intending to name
the following defendants to Tito’s claims: New Hampshire State
Prison (“NHSP”) Warden Michael Zenk; NHSP Sgt. Gary Lydick, NHSP
Corrections Officer (“CO”) Farradon Young, CO Geoffrey Boffitto,
and CO Jason Caruso; Mental Health Provider Barry Zani; Director
of Medical and Forensic Services Paula Mattis; Secure Housing
Unit (“SHU”) CO Salse, SHU CO T. Miller, and Close Custody Unit
(“CCU”) CO Bazile, whose first names are unknown; and an unnamed
NHSP dental health provider.
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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.
Discussion
I. 	Standard Regarding Hearing
The 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
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excessive force in violation of his federal rights.
The 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.
II. 	Standard for Preliminary Injunction
“‘A 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
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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. 2006).
“A 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”
(citation omitted)).
Tito’s 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
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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.
Defendant 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.
Plaintiff 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
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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.
Although 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 F.3d at 162 (“Irreparable harm most often
exists where a party has no adequate remedy at law.”).
Accordingly, the district judge should deny both the motion
for a preliminary injunction (Doc. No. 2) and the request for
preliminary injunctive relief set forth in Document No. 6. 	The
denial of plaintiff’s requests for such relief should be without
prejudice to plaintiff’s ability to file a new motion for a
preliminary injunction, in which he would need to show that all
of the prerequisites to obtaining such relief are satisfied, in
light of the present conditions of his incarceration at NCF.
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Conclusion
For the foregoing reasons, the magistrate judge recommends
that the district judge: 	(1) deny both the motion for a
preliminary injunction (Doc. No. 2) and the request for such
relief set forth in Document No. 6, based on the record before
the court, without prejudice; and (2) deny, as moot, plaintiff’s
motion (Doc. No. 9) for a hearing and for expedited relief.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen day period may be extended
upon motion. 	Failure to file objections within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 16 , 2018
cc: 	Albert Tito, pro se
Anthony Galdieri, Esq.
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