# Opinion

> District Court, N.D. New York · November 5, 2025

URL: https://www.frixlaw.com/law-library/cases/11198142

## Case

- **Full name:** Julio Isley Smith, et al. v. John Doe #1, et al.
- **Court:** District Court, N.D. New York
- **Decided:** November 5, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JULIO ISLEY SMITH, et al.,

Plaintiffs, 9:25-CV-0765
(BKS/MJK)
v.

JOHN DOE #1, et al.,

Defendants.

APPEARANCES:

JULIO ISLEY SMITH
Plaintiff, pro se
99-A-6505
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458

BOBBY R.HUNT
Plaintiff, pro se
10-B-3300
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458

PEDRO JIMINEZ
Plaintiff, pro se
19-A-3130
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458

BENITO ABREU
Plaintiff, pro se
19-A-2737
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458
BLAIR BRETTON
Plaintiff, pro se
19-A-2952
Eastern NY Correctional Facility
Box 338
Napanoch, NY 12458

BRENDA K. SANNES
Chief United States District Judge

DECISION AND ORDER
I. INTRODUCTION
On June 16, 2026, pro se plaintiffs Julio Isley Smith ("Smith"), Bobby R. Hunt ("Hunt"),
Pedro Jiminez ("Jiminez"), Benito Abreu ("Abreu"), and Blair Bretton ("Bretton") commenced
this action by filing a complaint. Dkt. No. 1 ("Compl."). Smith also filed a motion to appoint
counsel (Dkt. No. 2) and a motion for preliminary injunctive relief (Dkt. No. 3).
In a Decision and Order filed on July 29, 2025 (the "July 2025 Order"), this Court
advised that, for any plaintiff to proceed with this case, he must, within thirty (30) days
from the filing date of this Decision and Order, either (a) pay the Court's filing fee of four
hundred and five dollars ($405.00) in full, or (b) submit a properly completed and signed in
forma pauperis ("IFP") application. Because plaintiffs are incarcerated, any IFP application
must be certified or accompanied by appropriate account statements, and submitted with a
signed inmate authorization form reflecting his consent to pay the $350.00 filing fee over
time, in installments. Dkt. No. 4 at 4. The Court cautioned that if any plaintiff failed to comply
with the terms of the July 2025 Order, within the time period specified, that plaintiff would be
dismissed from this action without prejudice without further Order of this Court. Id.
Compliance or non-compliance, with the July 2025 Order by each plaintiff is discussed
below.
II. FILING FEE REQUIREMENTS
A. Hunt, Jiminez, Abreu, and Bretton

Hunt, Jiminez, Abreu, and Bretton have wholly failed to comply with the July 2025
Order. Consequently, Hunt, Jiminez, Abreu, and Bretton are dismissed as plaintiffs herein,
and the Clerk shall edit the docket to reflect their dismissal.
B. Smith
Smith submitted an IFP Application (Dkt. No. 5) and an inmate authorization form (Dkt.
No. 7). "28 U.S.C. § 1915 permits an indigent litigant to commence an action in a federal
court without prepayment of the filing fee that would ordinarily be charged." Cash v.
Bernstein, No. 09-CV-1922, 2010 WL 5185047, at *1 (S.D.N.Y. Oct. 26, 2010). "Although an
indigent, incarcerated individual need not prepay the filing fee at the time of filing, he must
subsequently pay the fee, to the extent he is able to do so, through periodic withdrawals from

his inmate accounts." Id. (citing 28 U.S.C. § 1915(b) and Harris v. City of New York, 607
F.3d 18, 21 (2d Cir. 2010)).
Upon review of Smith's IFP Application, the Court finds that he has demonstrated
sufficient economic need. See 28 U.S.C. § 1915(a)(2). Smith also filed the inmate
authorization form required in this District. Dkt. No. 6. Accordingly, the Court grants Smith's
IFP Application. Having found that Smith meets the financial criteria for commencing this
action IFP, and because Smith seeks relief from an officer or employee of a governmental

3
entity, the Court must consider the sufficiency of the allegations set forth in the complaint in
light of 28 U.S.C. §§ 1915(e) and 1915A.
III. SUFFICIENCY OF THE COMPLAINT
A. Governing Legal Standard

Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff
seeks to proceed in forma pauperis, "the court shall dismiss the case at any time if the court
determines that – . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief." 28 U.S.C. § 1915(e)(2)(B).
Similarly, under 28 U.S.C. § 1915A, a court must review any "complaint in a civil action
in which a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity" and must "identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or . . . seeks monetary relief from a defendant who is

immune from such relief." 28 U.S.C. § 1915A(b).
Additionally, when reviewing a complaint, the Court may also look to the Federal Rules
of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading
which sets forth a claim for relief shall contain, inter alia, "a short and plain statement of the
claim showing that the pleader is entitled to relief." See Fed. R. Civ. P. 8(a)(2). The purpose
of Rule 8 "is to give fair notice of the claim being asserted so as to permit the adverse party
the opportunity to file a responsive answer, prepare an adequate defense and determine
whether the doctrine of res judicata is applicable." Hudson v. Artuz, No. 95 Civ. 4768, 1998

4
WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, No. 95-
CV-0063 (TJM), 162 F.R.D. 15, 16 (N.D.N.Y. June 23, 1995) (other citations omitted)).
A court should not dismiss a complaint if the plaintiff has stated "enough facts to state
a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court should construe the
factual allegations in the light most favorable to the plaintiff, "the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions." Id. "Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rule 8
"demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id.
Thus, a pleading that contains only allegations which "are so vague as to fail to give the
defendants adequate notice of the claims against them" is subject to dismissal. Sheehy v.

Brown, 335 Fed. App'x 102, 104 (2d Cir. 2009).
The Court will construe the allegations in the complaint with the utmost leniency. See,
e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that a pro se litigant's complaint is
to be held "to less stringent standards than formal pleadings drafted by lawyers.").
B. Summary of the Complaint1

1 The complaint includes exhibits. See Dkt. No.1-2. To the extent that the exhibits are relevant to the incidents
described in the complaint, the Court will consider the documents. See Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 47 (2d Cir. 1991) (the complaint is deemed to include any written instrument attached to it as an
exhibit or any statements or documents incorporated in it by reference).
5
The complaint asserts allegations of wrongdoing at Eastern New York Correctional
Facility ("Eastern NY C.F."). The following facts are set forth as alleged by plaintiff in his
complaint.
On February 12, 2025, plaintiff was transported to Ellenville Regional Hospital for a

CAT scan for nasal issues and an ultrasound for pelvis pain. Compl. at 4. Plaintiff was
advised that he had an appointment for his nasal issues and required surgery. Id.; Dkt. No. 3
at 2.
From February 17, 2025 until March 10, 2025, defendants John Doe Eastern NY C.F.
employee ("Doe Employee") and Correction Officer John Doe ("CO Doe") "executed" an
illegal strike. Compl. at 1-3.
Due to the strike, plaintiff was not provided with previously scheduled physical therapy
services for injuries that cause him "severe pain" and his nasal appointment and surgery
were not scheduled. Compl. at 4; Dkt. No. 3 at 2. Plaintiff, who claims he is serving 38 years
for "crimes [he] did not commit," was unable to access the law library or pick up necessary

stationary supplies. Id. at 5; Dkt. No. 3 at 2. For five weeks, plaintiff was unable to join and
congregate with Muslims during Ramadhan. Id. For twenty-five to thirty days, plaintiff was
not permitted to bathe, barbershop services were suspended, there was no hot water in
rooms and no "clean up." Compl. at 4; Dkt. No. 3 at 1. For more than thirty days, plaintiff
was denied recreation. Id.

6
Construed liberally2, the complaint contains the following: (1) First Amendment free
exercise claims; (2) Eighth Amendment conditions-of-confinement claims; and (3) Eighth
Amendment deliberate medical indifference claims. See generally Compl. Plaintiff seeks
monetary damages See id. at 6. For a complete statement of plaintiff's claims and the facts

he relies on in support of those claims, reference is made to the complaint.
C. Analysis
Plaintiff brings this action pursuant to Section 1983, which establishes a cause of
action for " 'the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws' of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F.Supp. 537,
573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting
42 U.S.C. § 1983)) (footnote omitted). "Section 1983 itself creates no substantive rights, [but]
. . . only a procedure for redress for the deprivation of rights established elsewhere." Sykes
v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S.
808, 816 (1985)).

"Personal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under [Section] 1983." Wright v. Smith, 21 F.3d 496,
501 (2d Cir. 1994). As the Supreme Court has noted, a defendant may only be held

2 The Court is mindful of the Second Circuit's instruction that a pleading by a pro se litigant must be construed
liberally and interpreted to raise the strongest arguments that it suggests. See, e.g., Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district
courts" that a pro se plaintiff's pleadings must be construed liberally); Phillips v. Girdich, 408 F.3d 124, 130 (2d
Cir. 2005) ("We leave it for the district court to determine what other claims, if any, [plaintiff] has raised. In so
doing, the court's imagination should be limited only by [plaintiff's] factual allegations, not by the legal claims set
out in his pleadings."); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("[W]e read [a pro se litigant's]
supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest.").

7
accountable for his actions under Section 1983. See Iqbal, 556 U.S. at 683 ("[P]etitioners
cannot be held liable unless they themselves acted on account of a constitutionally protected
characteristic.").
In order to prevail on a Section 1983 cause of action against an individual, a plaintiff

must show “a tangible connection between the acts of a defendant and the injuries suffered."
Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). This is true even for supervisory officials.
See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) ("There is no special rule for
supervisor liability."). "[A] plaintiff must plead and prove 'that each Government-official
defendant, [including supervisors,] through the official's own individual actions, has violated
the Constitution.' " Id. (quoting Iqbal, 556 U.S. at 676).
1. Claims Against City of New York
The Court notes that plaintiff identifies no connection between the City of New York
and the facts alleged in the complaint, thus, the claims against the City of New York are
subject to dismissal. It is well-settled that municipal liability may not be founded solely on a

municipality's employment of a tortfeasor; in other words, the municipality may not liable
pursuant to Section 1983 under the theory of respondeat superior. Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691 (1978). Rather, for the City of New York to be held liable under
Section 1983, plaintiff must allege that the unconstitutional actions were taken pursuant to an
official municipal policy, custom or practice. Monell, 436 U.S. at 690-91; Vann v. City of New
York, 72 F.3d 1040 (2d Cir. 1995).
Construing plaintiff's pro se pleading liberally, the complaint cannot plausibly be read

8
to allege a policy, custom or practice that would support municipal liability on the part of the
City of New York. The complaint is devoid of any specific facts suggesting that a municipal
custom or policy led to a violation of plaintiff's rights. See Velasquez v. City of N.Y., No. 12-
CV-4689, 2012 WL 5879484, at *4 (E.D.N.Y. Nov. 21, 2012) (holding that the plaintiff did not

"allege any facts from which this Court can construe any allegation of a failure of the City of
New York policymakers to properly train or supervise their subordinates amounting to
'deliberate indifference' to the rights of those who come in contact with their employees").
Accordingly, plaintiff's claims against the City of New York are dismissed without
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state
a claim upon which relief may be granted.
2. Constitutional Claims
a. Applicable Law
The First Amendment to the United States Constitution guarantees the right to free
exercise of religion. See U.S. Const. amend. I; Cutter v. Wilkinson, 544 U.S. 709, 719

(2005). As is true with regard to the First Amendment generally, the free exercise clause
applies to prison inmates, subject to appropriate limiting factors. See Ford v. McGinnis, 352
F.3d 582, 588 (2d Cir. 2003) (holding that "[p]risoners have long been understood to retain
some measure of the constitutional protection afforded by the First Amendment's Free
Exercise Clause" (citing Pell v. Procunier, 417 U.S. 817, 822 (1974)).
"In the prison context, however, 'the right to free exercise of religion' is balanced
against 'the interests of prison officials charged with complex duties arising from

9
administration of the penal system.'" Kravitz v. Purcell, 87 F.4th 111, 128 (2d Cir. 2023)
(quoting Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990)). Thus, "an infringement of
the free exercise of religion [may be] permissible . . . if it is 'reasonably related to legitimate
penological interests.'" Id. (quoting Benjamin, 905 F.2d at 574). "[T]o assess a free exercise

claim, a court must determine (1) whether the practice asserted is religious in the person's
scheme of beliefs, and whether the belief is sincerely held; (2) whether the challenged
practice of the prison officials infringes upon the religious belief; and (3) whether the
challenged practice of the prison officials furthers legitimate penological objectives." Id.
(alterations adopted) (quoting Farid v. Smith, 850 F.2d 917, 926 (2d Cir. 1988)).
While the United States Constitution " 'does not mandate comfortable prisons,' . . .
neither does it permit inhumane" treatment of those in confinement. Farmer v. Brennan, 511
U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). "To
demonstrate that the conditions of confinement constitute cruel and unusual punishment, the
plaintiff must satisfy both an objective test and a subjective test." Jolly v. Coughlin, 76 F.3d

468,480 (2d Cir. 1996) (citation omitted).
To satisfy the objective element, "the plaintiff must demonstrate that the conditions of
his confinement result 'in unquestioned and serious deprivations of basic human needs.' "
Jolly, 76 F.3d at 480 (citation omitted). "[T]he inmate must show that the conditions, either
alone or in combination, pose an unreasonable risk of serious damage to his health." Walker
v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citation omitted). Conditions that are restrictive
and harsh are an element of the penalty that criminal offenders pay to society for their
offenses. See Rhodes, 452 U.S. at 347.

10
With respect to the subjective element, plaintiff must "demonstrate that the defendants
imposed those conditions with 'deliberate indifference.' " Jolly, 76 F.3d at 480 (citation
omitted). To constitute deliberate indifference, "[t]he prison official must know of, and
disregard, an excessive risk to inmate health or safety." Walker, 717 F.3d at 125.

b. Analysis
Even assuming plaintiff plead a viable free exercise claims and alleged facts that
satisfied the objective prong of an Eighth Amendment analysis, the complaint lacks facts
indicating that defendants were personally involved or responsible for decisions related to
plaintiff's religious practices or plaintiff's conditions of confinement.
With respect to plaintiff's claims against defendants John Doe Commissioner and John
Doe Superintendent, "[l]iability based solely [. . .] due to a failure to supervise, without more,
constitutes precisely the type of vicarious, respondeat superior liability that Iqbal and Tangreti
eliminate." Myers on behalf of Est. of Myers v. Davenport, No. 1:21-CV-0922 (LEK/CFH),
2022 WL 3017367, at *4 (N.D.N.Y. July 29, 2022) (citation omitted). In this case, the

complaint is devoid of any allegations which plausibly suggest that the Commissioner and
Superintendent directly participated in any alleged constitutional violation or that they were
present or otherwise involved in any constitutional violation. In the absence of some tangible
connection between the Commissioner and Superintendent and any constitutional violations,
the claims against the Commissioner and Superintendent must be dismissed. See O'Brien v.
City of Syracuse, No. 5:22-CV-948 (MAD/TWD), 2023 WL 6066036, at *19 (N.D.N.Y. Sept.
18, 2023) (citing, inter alia, Robinson v. Graham, No. 20-CV-1610, 2021 WL 2358415, *3
(N.D.N.Y. June 9, 2021) (dismissing claim against supervisor for failure to train and manage

11
staff as "reminiscent of a 'supervisor liability' theory of liability for Section 1983 claims that is
no longer available" after Tangreti), reconsideration denied, 2024 WL 4252052 (N.D.N.Y.
Sept. 20, 2024).
Similarly, with respect to plaintiff's claims against Doe Employee and CO Doe, the

complaint lacks any facts suggesting that defendants were personally involved in decisions
related to plaintiff's religious practice and conditions of confinement. Indeed, plaintiff does not
allege that defendants were present, or aware, of any alleged constitutional violations.
Moreover, plaintiff's sweeping and general allegations fail to sufficiently identify the specific
involvement these defendants. Plaintiff claims "defendants [. . .] conspired to plan and
execute an illegal strike" see Compl. at 3, without specifying which particular individual did
what. "[P]laintiff cannot rely on a group pleading against all defendants without making
specific individual factual allegations." 5465 Route 212, LLC v. New York State Dep't of
Transportation, No. 1:19-CV-01510 (BKS/DJS), 2020 WL 6888052, at *9 (N.D.N.Y. Nov. 24,
2020); see also Lawson v. Ruskin, No. 08-CV-321, 2008 WL 1902218, at *2 (E.D.N.Y. Apr.

25, 2008) (explaining that "lumping all Defendants [. . .] together without specifying what
actions were taken, and by whom, to violate his rights" was insufficient to meet pleading
requirements) (citation omitted).
As discussed supra, to state a cognizable Section 1983 claim, a complaint must allege
the personal involvement of each of the defendants. Additionally, Rule 8 of the Federal Rules
of Civil Procedure mandates that a complaint include sufficient allegations to provide "each
defendant fair notice of what the plaintiff's claim is and ground upon which it rests." Atuahene
v. City of Hartford, 10 Fed. App'x 33, 34 (2d Cir. 2001) (internal quotation marks omitted); see

12
Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995). As presently plead, plaintiff's allegations
are simply too vague to provide any sort of notice of a claim against any particular defendant.
See Atuahene, 10 Fed. App'x at 34 ("By lumping all the defendants together in each claim
and providing no factual basis to distinguish their conduct, [the plaintiff]’s complaint failed to

satisfy th[e] minimum standard [set forth in Rule 8].").
For the foregoing reasons, plaintiff's claims are dismissed without prejudice pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim.
IV. DISMISSAL WITH LEAVE TO AMEND
Plaintiff's complaint fails to state one or more claims upon which relief may be granted
by this Court. However, in light of his pro se status, plaintiff will be afforded the opportunity to
file an amended complaint. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d
Cir. 1999).
Plaintiff is advised that any amended complaint will completely replace the prior
complaint in the action, and that no portion of any prior complaint shall be incorporated into

the amended complaint by reference. Any amended complaint must contain a caption that
clearly identifies, by name, each individual that plaintiff is suing in the present lawsuit and
must bear the case number assigned to this action. The body of plaintiff's amended
complaint must contain sequentially numbered paragraphs containing only one act of
misconduct per paragraph. Thus, plaintiff should include separate paragraphs in his
amended complaint for each alleged constitutional violation, with each paragraph specifying
(i) the alleged act of misconduct; (ii) the date on which such misconduct occurred; (iii) the
names of each and every individual who participated in such misconduct; (iv) where

13
appropriate, the location where the alleged misconduct occurred; and (v) the nexus between
such misconduct and plaintiff's civil and/or constitutional rights.
Plaintiff is forewarned that, if he fails to submit an amended complaint within thirty (30)
days of the filing date of this Decision and Order, the Court will, without further order, dismiss

this action without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A for failure to
state a claim upon which relief may be granted.
V. MOTION FOR COUNSEL
Plaintiff moves for assignment of counsel. See Dkt. No. 2.
Plaintiffs bringing civil actions have no constitutional right to the appointment of
counsel. See, e.g., United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981). However,
pursuant to 28 U.S.C. § 1915(e), the court may request an attorney to represent an indigent
party. 28 U.S.C. § 1915(e)(1) (authorizing the court to "request an attorney to represent any
person unable to afford counsel."). Courts cannot utilize a bright-line test in determining
whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin,

114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of factors must be carefully
considered by the court in ruling upon such a motion:
[The Court] should first determine whether the indigent's position
seems likely to be of substance. If the claim meets this threshold
requirement, the court should then consider the indigent's ability to
investigate the crucial facts, whether conflicting evidence
implicating the need for cross examination will be the major proof
presented to the fact finder, the indigent's ability to present the
case, the complexity of the legal issues and any special reason in
that case why appointment of counsel would be more likely to lead
to a just determination.

14
Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge v.
Police Officers, 802 F.2d 58, 61 (2d Cir. 1986)) (internal quotation marks omitted). This is not
to say that all, or indeed any, of these factors are controlling in a particular case. Rather,
each case must be decided on its own facts. Velasquez v. O'Keefe, No. 93-CV-1449 (TJM)

899 F.Supp. 972, 974 (N.D.N.Y. Oct. 16, 1995) (citing Hodge, 802 F.2d at 621). The Court
must consider the issue of appointment carefully because "every assignment of a volunteer
lawyer to an undeserving client deprives society of a volunteer lawyer available for a
deserving cause." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989).
Since plaintiff has failed to establish that his claim is likely to be of substance, the
Court denies his motion for appointment of counsel without prejudice. After the Court has
accepted an amended complaint for filing, defendants have responded to the allegations in
plaintiff’s amended complaint, and the parties have undertaken discovery, plaintiff may
choose to file a new motion for appointment of counsel, at which time the Court may be better
able to determine whether such appointment is warranted in this case. Plaintiff is advised

that any future motion for appointment of counsel must be accompanied by documentation
that substantiates his efforts to obtain counsel from the public and private sector. See
Terminate Control Corp., 28 F.3d at 1341; Cooper, 877 F.2d at 172, 174. Thus, plaintiff's
motion for the appointment of counsel is denied without prejudice.
VI. MOTION FOR PRELIMINARY INJUNCTION
Plaintiff moves for an order restraining defendants from causing "further duress" and
from depriving plaintiff of recreation, showers, and religious services. Dkt. No. 3.

15
Preliminary injunctive relief "is an extraordinary and drastic remedy, one that should
not be granted unless the movant, by a clear showing, carries the burden of persuasion."
Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510 (2d Cir. 2005) (quoting
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). "[T]his circuit has required a party seeking

a preliminary injunction to show: (a) irreparable harm and (b) either (1) a substantial
likelihood of success on the merits of the claim, or (2) sufficiently serious questions going to
the merits to make them a fair ground for litigation and a balance of hardships tipping
decidedly toward the party requesting the preliminary relief." Citigroup Global Mkts., Inc. v.
VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35, 38 (2d Cir. 2010) (internal
quotation marks omitted). However, when the moving party seeks a "mandatory injunction
that alters the status quo by commanding a positive act," the burden is even higher. N.Y.
Civil Liberties Union v. N.Y. City Transit Auth., 684 F.3d 286, 294 (2d Cir. 2011). Thus, 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." Citigroup Global Mkts., 598 F.3d at 35 n.4 (internal
quotation marks omitted). "The district court has wide discretion in determining whether to
grant a preliminary injunction." Moore, 409 F.3d at 511.
"To prevail on a motion for preliminary injunctive relief, the moving party must establish
a relationship between the injury claimed in the motion and the conduct giving rise to the
complaint." Levesque v. Clinton County, No. 10-CV-787 (DNH/DEP), 2012 WL 6948779, at
*11 (N.D.N.Y. Dec. 28, 2012) (citing inter alia Omega World Travel, Inc. v. Trans World
Airlines, 111 F.3d 14, 16 (4th Cir. 1997) (holding that a preliminary injunction may not be

16
issued to prevent an injury or harm which was not caused by the wrong claimed in the
underlying action); see also Allen v. Brown, No. 96-CV-1599 (RSP/GJD), 1998 WL 214418,
*4 (N.D.N.Y. Apr. 28, 1998) (denying request for injunctive relief where allegations in
application were unrelated to claims asserted in the complaint and, thus, plaintiff "failed to

establish either a likelihood of succeeding on the merits of his underlying claim, or sufficiently
serious questions going to the merits of such claim and a balance of hardships tipping
decidedly toward" him).
Here, as plaintiff seeks a mandatory injunction, he must meet the higher standard and
establish a clear or substantial likelihood of success of show that extreme or very serious
damage would result in the absence of the requested relief. See Tom Doherty Assocs., Inc.
v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995).
Construing plaintiff's motion in the light most favorable to him as a pro se litigant, the
Court finds that he has failed to substantiate any allegations of irreparable harm with
evidence in admissible form. At this juncture, plaintiff has failed to assert any viable cause of

action and all allegations in the complaint have been dismissed. Moreover, in his motion for
injunctive relief, plaintiff fails to provide any specific facts establishing the likelihood of
success on the merits or extreme or serious damage.
For the foregoing reasons, plaintiff's motion for preliminary injunctive relief is denied.
VI. CONCLUSION
WHEREFORE, it is hereby

17
ORDERED that Hunt, Jiminez, Abreu, and Bretton are terminated as plaintiffs herein
for their failure to comply with the July 2025 Order. The Clerk shall amend the docket
accordingly; and it is further
ORDERED that Smith's IFP Application (Dkt. No. 5) is GRANTED; and it is further

ORDERED that the Clerk provide the Superintendent of the facility, designated by
plaintiff as his current location, with a copy of his Inmate Authorization Form, and notify the
official that this action has been filed and that plaintiff is required to pay the Northern District
of New York the statutory filing fee of $350.00 in installments, over time, pursuant to 28
U.S.C. § 1915; and it is further
ORDERED that the Clerk of the Court provide a copy of plaintiff's Inmate Authorization
Form to the Financial Deputy of the Clerk's Office; and it is further
ORDERED that if plaintiff wishes to proceed with this action, he must file an amended
complaint as set forth above within thirty (30) days from the date of the filing of this Decision
and Order; and it is further

ORDERED that, if plaintiff timely files an amended complaint, this matter be returned
to the Court for further review; and it is further
ORDERED that if plaintiff fails to timely file an amended complaint as directed above,
the Clerk shall enter judgment indicating that the action is DISMISSED without prejudice
without further order of this Court pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b)(1) for failure to state a claim upon which relief may be granted and for failure to
comply with this Decision and Order. In that event, the Clerk is directed to close this case;
and it is further

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ORDERED that plaintiffs motion for counsel (Dkt. No. 2) is DENIED; and it is further
ORDERED that plaintiffs motion for preliminary injunctive relief (Dkt. No. 3) is
DENIED; and it is further
ORDERED that the Clerk provide plaintiff with copies of the unpublished decisions
cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d
76 (2d Cir. 2009) (per curiam); and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff, together
with a copy of the complaint.
Dated: November 5, 2025

Brenda K. Sannes
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11198142. Public record. Not legal advice.