Morales v. NH Attorney General et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Irvin Morales
v. 	Civil No. 17-cv-234-SM
New Hampshire Attorney General
Joseph Foster et al.1
REPORT AND RECOMMENDATION
Pro se plaintiff Irvin Morales has filed a motion for a
preliminary injunction (Doc. No. 4), which has been referred to
this magistrate judge for a report and recommendation. 	The
claims in the complaint (Doc. No. 1) challenge the validity of a
group strip search that occurred after a December 2014 holiday
event at the New Hampshire State Prison. 	The relief sought in
the motion for a preliminary injunction (Doc. No. 4) is an order
preventing the New Hampshire State Prison from transferring
Morales in retaliation for his litigation of this action, or
providing him with transportation to each hearing in this case
if he is transferred.
1Plaintiff names as defendants: (former) New Hampshire
Attorney General Joseph Foster; (former) New Hampshire
Department of Corrections Commissioner William Wrenn;
Christopher Kench; Colon Forbes; (former) New Hampshire State
Prison Warden Richard Gerry; Jean Carrol; Jon Fouts; Corrections
Officer Greenwood, whose first name is unknown; unnamed NHSP
officers, who plaintiff identifies as John Does 1-11; and Kelly
Jardine.
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Discussion
“‘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). 	The likelihood
of success and irreparable harm are the factors that weigh most
heavily in the analysis. 	See Esso Std. Oil Co. v. Monroig–
Zayas, 445 F.3d 13, 18 (1st Cir. 2006); see also 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
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., 445 F.3d at 18.
“Irreparable harm most often exists where a party has no
adequate remedy at law.” 	Charlesbank Equity Fund II, Ltd.
P’ship v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004).
“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.” 	Id.
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Morales has claimed that he is at risk of a transfer to
another facility, and he seeks an injunction that prohibits a
transfer or requires the New Hampshire Department of Corrections
to transport him to hearings in this case. 	Morales points to no
specific information in his case that suggests he is at risk of
being transferred in retaliation for litigating this matter, and
to no information at all suggesting that he would not be
transported as necessary for hearings in the case. 	Rather,
Morales generally asserts, without any evidence or affidavit to
support the assertion, that the prison has a history of
transferring inmates who file lawsuits against prison officials.
Morales bases his motion on unsubstantiated fears and
speculation, which do not suffice to establish a likelihood of
irreparable harm. 	Preliminary injunctive relief is not
warranted. 	Accordingly, the district judge should deny
Morales’s request for a preliminary injunction (Doc. No. 4),
without prejudice to his ability to file a new motion for a
preliminary injunction if a change in his circumstances warrants
such relief.
Conclusion
For reasons stated above, the district judge should deny
Morales’s motion for a preliminary injunction (Doc. No. 4),
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without prejudice. 	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
January 25, 2018
cc: 	Irvin Morales, pro se
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