DECISION and ORDER

BRENDA K. SANNES, District Judge.

I. INTRODUCTION

Plaintiff Jay Bradshaw commenced this action by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 ("Section 1983"), together with an application to proceed in forma pauperis ("IFP") and a motion for preliminary injunctive relief. Dkt. No. 1 ("Compl."); Dkt. No. 6 ("IFP Application"); Dkt. No. 4 ("Preliminary Injunction Motion").1 By Decision and Order filed on October 1, 2019, this Court granted plaintiff's IFP Application in accordance with 28 U.S.C. § 1915(g) after finding that plaintiff made a preliminary showing that he is entitled to the "imminent danger" exception, and after screening the complaint in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), dismissed certain claims and defendants from this action, and directed a response for the claims that survived sua sponte review and the Preliminary Injunction Motion. Dkt. No. 9 ("October 2019 Order").

Following service on one of the named defendants, counsel submitted an opposition to the Preliminary Injunction Motion. See Dkt. No. 16.

II. PRELIMINARY INJUNCTION MOTION

"In general, district courts may grant a preliminary injunction where a plaintiff demonstrates `irreparable harm' and meets one of two related standards: `either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party.'" Otoe-Missouria Tribe of Indians v. New York State Dep't of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (quoting Lynch v. City of N.Y., 589 F.3d 94, 98 (2d Cir. 2009) (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. Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011) (citing Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010) (internal quotation marks omitted)). 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." Cacchillo, 638 F.3d at 406 (citing Citigroup Global Mkts., 598 F.3d at 35 n.4) (internal quotation marks omitted)); see also Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995) (a plaintiff seeking a mandatory injunction must make a "clear" or "substantial" showing of a likelihood of success on the merits of his claim). The same standards used to review a request for a preliminary injunction govern consideration of an application for a temporary restraining order. Local 1814, Int'l Longshoremen's Ass'n, AFL-CIO v. New York Shipping Ass'n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992); Perri v. Bloomberg, No. 06-CV-0403, 2008 WL 2944642, at * 2 (E.D.N.Y. Jul. 31, 2008). The district court has wide discretion in determining whether to grant preliminary injunctive relief. Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 511 (2d Cir. 2005). "In the prison context, a request for injunctive relief must always be viewed with great caution so as not to immerse the federal judiciary in the management of state prisons." Fisher v. Goord, 981 F.Supp. 140, 167 (W.D.N.Y. 1997) (citing Farmer v. Brennan, 511 U.S. 825, 846-47 (1994)) (other citations omitted).

In his motion, plaintiff seeks an order directing defendants to "turn off the night light during the night hours[,]" "cease . . . banging on [plaintiff's] cell door in the night hours, and . . . feed [plaintiff] during every meal." See Preliminary Injunction Motion at 1. In his opposition to plaintiff's motion, counsel for defendant Russell argues that plaintiff's motion should be denied because (1) plaintiff has failed to make a clear showing that he is entitled to the relief requested, and (2) the portion of plaintiff's motion that seeks an Order directing defendants to feed him "during every meal" is tantamount to an improper "obey the law" request. See Dkt. No. 16 at 1-2.

The Court need not weigh into the merits of counsel's arguments because after plaintiff's motion was made, he was transferred to Southport Correctional Facility. See Dkt. No. 11. In light of plaintiff's transfer, and the absence of any credible evidence that he is likely to continue suffering the same harm that was the subject of his existing claims despite his transfer, his request for injunctive relief is moot. See Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) ("It is settled in this Circuit that a transfer from a prison facility moots an action for injunctive relief against the transferring facility."); see also Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) ("In this circuit, an inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility.").

Accordingly, for the foregoing reasons, plaintiff's motion for preliminary injunctive relief (Dkt. No. 4) is denied.

WHEREFORE, it is hereby

ORDERED that plaintiff's motion for preliminary injunctive relief (Dkt. No. 4) is DENIED; and it is further

ORDERED that the Clerk of the Court shall 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 shall serve a copy of this Decision and Order on the parties.

IT IS SO ORDERED.

Attorneys and Law Firms

*107 David M. Bernick, Dechert LLP, New York, New York (Michael S. Doluisio, Michael H. Park, Gordon Sung, Dechert LLP, Robert A. Rosette, Sarah Bazzazieh, Rosette, LLP, on the brief), for Plaintiffs-Appellants.

Steven C. Wu, Deputy Solicitor General (Barbara D. Underwood, Solicitor General, Jason Harrow, Assistant Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, New York, for Defendants-Appellees.

Before: SACK, LYNCH, and LOHIER, Circuit Judges.

Opinion

GERARD E. LYNCH, Circuit Judge:

New York's usury laws prohibit unlicensed lenders from lending money at an interest rate above 16 percent per year, and criminalize loans with interest rates higher than 25 percent per year. N.Y. Gen. Oblig. Law § 5-501(1), N.Y. Banking Law § 14-a(1), N.Y. Penal Law §§ 190.40-42. The plaintiffs are two Native American tribes, tribal regulatory agencies, and companies owned by the tribes that provide short-term loans over the internet, all of which have tripledigit interest rates that far exceed the ceiling set by New York law. When the New York State Department of Financial Services ("DFS") tried to bar out-of-state lenders, including the plaintiffs, from extending loans to New York residents, plaintiffs sought a preliminary order enjoining DFS from interfering with the tribes' consumer lending business.

Plaintiffs contended that New York had projected its regulations over the internet and onto reservations in violation of Native Americans' tribal sovereignty, which is protected by the Indian Commerce Clause of the Constitution. U.S. CONST. art. 1, § 8, cl. 3. But the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) held that plaintiffs had not offered sufficient proof that the loans fell outside New York's regulatory domain. After examining the evidence marshaled by plaintiffs in support of their motion, the District Court concluded that plaintiffs had failed to establish that the challenged loan transactions occurred on Native American soil, a fact necessary to weaken New York State's regulatory authority over them. Because this conclusion was a reasonable one, we AFFIRM the District Court's denial of plaintiffs' motion for a preliminary injunction.

BACKGROUND

This case arises from a conflict between two sovereigns' attempts to combat poverty within their borders. Native American tribes have long suffered from a dearth of economic opportunities. Plaintiffs in this case, the Otoe-Missouria Tribe of Indians, the Lac Vieux Desert Band of Lake Superior *108 Chippewa Indians, and wholly owned corporations of those tribes (collectively, "the lenders"), established intemet-based lending companies in the hopes of reaching consumers who had difficulty obtaining credit at favorable rates but who would never venture to a remote reservation. The loans were made at high interest rates, and the loans permitted the lenders to make automatic deductions from the borrowers' bank accounts to recover interest and principle. New York has long outlawed usurious loans. DFS aggressively enforced those laws in order to "protect desperately poor people from the consequences of their own desperation." Schneider v. Phelps, 41 N.Y.2d 238, 243, 391 N.Y.S.2d 568, 359 N.E.2d 1361 (1977). Thus, the tribes' and New York's interests collided.

It is unclear, however, where they collided-in New York or on a Native American reservation. The lenders assert that the challenged transactions occurred on reservations. The "loan application process" took place via "website[s] owned and controlled by the Tribe[s]." Loans were "reviewed and assessed by ... Tribal loan underwriting system[s]." Loans complied with rules developed, adopted, and administered by tribal regulatory authorities. The loans were funded out of "Tribally owned bank accounts." And each loan application notified borrowers that the contract was "governed only by the laws of [the Tribe] and such federal law as is applicable under the Indian Commerce Clause of the United States Constitution ... [and] [a]s such, neither we nor this Agreement are subject to any other federal or state law or regulation." In sum, as the Chairman of the Lac Vieux Desert Tribe explained in an affidavit, "[t]hrough technological aids and underwriting software, loans are approved through processes that occur on the Reservation in various forms."1

But loans approved on Native American reservations and other out-of-state locations flowed across borders to consumers in New York. New York borrowers never traveled to tribal lands or other jurisdictions: they signed loan contracts remotely by keying in an electronic signature. Borrowers listed their New York addresses on applications, and provided lenders with routing information for their personal bank accounts in New York. Moreover, the lenders did more than simply transfer loan proceeds into New York bank accounts. Under the terms of the loans, the lenders reached into New York to collect payments: the lenders placed a hold on borrowers' accounts that resulted in an automatic debit every two weeks over the course of many months.2 The harm inflicted by these high-interest loans fell upon customers in New York: DFS received complaints from residents faltering under the weight of interest rates as high as 912.49 percent: as one complaint explained, am attempting to get out of a hole, not dig a deeper one."

Thus, both the tribes and New York believed that the highinterest loans fell within their domain, both geographic and regulatory, and acted accordingly. The tribes re-invested profits into their communities, *109 and New York authorities began an investigation into online payday lending. In the summer of 2013, those initiatives clashed.

In August, DFS launched what the tribal lenders describe as a "market-based campaign explicitly designed to destroy Tribal enterprises," and what New York defends as a "comprehensive effort to determine how best to protect New Yorkers from the harmful effects of usurious online payday loans." At issue are two related mailings.

First, DFS sent cease-and-desist letters to thirty-five online payday lenders that it had identified as having made loans to New York residents. Its efforts were directed generally at such lenders, including not only tribal lenders, but also foreign lenders and lenders headquartered in states that do not cap interest rates on short-term loans. The letters accused lenders of "using the Internet to offer and originate illegal payday loans to New York consumers," in violation of "New York's civil and criminal usury laws." The letters instructed lenders to "confirm in writing" within fourteen days "that [they were] no longer solicit[ing] or mak[ing] usurious loans in New York."

Second, DFS wrote to the lenders' partners in the financial services industry. The lenders relied on outside banks to hold money and transfer it to customers. Those banks, in turn, depended upon an electronic wire service called the Automated Clearing House ("ACH") to move money from their coffers into borrowers' accounts, and to extract repayment from those accounts. DFS's letters solicited banks and ACH for their "cooperative effort[s]" to "stamp out these pernicious, illegal payday loans." In the letters sent to banks, DFS warned that "it [was] in ... [the] bank's long-term interest to take appropriate action to help ensure that it is not serving as a pipeline for illegal conduct." It urged the banks to "work with" the agency "to create a new set of model safeguards and procedures to choke-off ACH access" to the 35 payday lenders that had lent money to New York customers. "Doing so," the letter counseled, was "in the best interest of your member banks and their customers." The letters ended with a request that the companies meet with New York officials to discuss a cooperative "undertaking."

According to plaintiffs, DFS's outreach had immediate and devastating effects on tribal lenders. Banks and ACH abruptly ended their relationships with the lenders, stymieing their transactions not just with New York borrowers, but with consumers in every other state in the union. Without revenue from lending, the tribes faced large gaps in their budgets. According to the Chairman of the Otoe-Missouria tribe, proceeds from lending account for almost half of the tribe's non-federal income. Profits from lending have fueled expansion of tribal early childhood education programs, employment training, healthcare coverage, and child and family protection services. The Chairman of the Lac Vieux Desert tribe attested to similar fiscal reliance, noting that lending revenue supports tribal housing initiatives, youth programs, health and wellness services, and law enforcement.

Faced with crumbling businesses and collapsing budgets, plaintiffs filed suit, claiming that New York's efforts to curb the lenders' online business violated the Indian Commerce Clause of the Federal Constitution by infringing on tribes' fundamental right to self-government. Plaintiffs moved for a preliminary injunction barring DFS from further interfering with the lenders' transactions with consumers in New York and elsewhere. The District Court denied the motion. The court found *110 that the lenders had "built a wobbly foundation for their contention that the State is regulating activity that occurs on the Tribes' lands," and concluded that New York's "action [was] directed at activity that [took] place entirely off tribal land, involving New York residents who never leave New York State." Otoe-Missouria Tribe of Indians v. N.Y. State Dep't of Fin. Servs., 974 F.Supp.2d 353, 360 (S.D.N.Y.2013). Thus, the court held that New York acted within its rights to regulate business activity within the state.

This appeal followed.

DISCUSSION

I. Preliminary Injunctions: Standard for Granting, Standard of Review

A district court's denial of a motion for a preliminary injunction is reviewed for abuse of discretion. WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 278 (2d Cir.2012). In general, district courts may grant a preliminary injunction where a plaintiff demonstrates "irreparable harm'. and meets one of two related standards: "either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party." Lynch v. City of N.Y., 589 F.3d 94, 98 (2d Cir.2009) (internal quotation marks omitted). This two-track rule, however, is subject to an exception: A plaintiff cannot rely on the "fair-ground-for-litigation" alternative to challenge "governmental action taken in the public interest pursuant to a statutory or regulatory scheme." Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989) (relying on Union Carbide Agric. Prods. Co. v. Costle, 632 F.2d 1014, 1018 (2d Cir.1980) and Med. Soc'y of N.Y v. Toia, 560 F.2d 535, 538 (2d Cir.1977)). As we have explained, "[t]his exception reflects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly." Able v. United States, 44 F.3d 128, 131 (2d Cir.1995).

DFS's attempt to curb online payday lending in New York was a paradigmatic example of "governmental action taken in the public interest," Plaza Health Labs., 878 F.2d at 580, one that vindicated proven "policies implemented through legislation or regulations." Able, 44 F.3d at 131. New York's usury prohibitions date back to the late 18th century. New York enacted the current cap-16 percent interest on shortterm loans made by non-bank, unlicensed lenders—decades ago. See N.Y. Banking Law § 14-a (McKinney 2014) (noting original enactment date of Dec. 31, 1979). New York courts have consistently upheld and enforced such laws; as the New York Court of Appeals wrote in 1977, usury laws protect "impoverished debtors from improvident transactions drawn by lenders and brought on by dire personal financial stress." Schneider, 41 N.Y.2d at 243, 391 N.Y.S.2d 568, 359 N.E.2d 1361. New York regulatory authorities, both at the behest of successive Attorneys General and now the Superintendent of Financial Services,3 have pursued businesses that *111 lent money at interest rates above the legal limit. See e.g., Press Release, New York State Office of the Attorney General. Spitzer Not Preempted in Suit to Stop Illegal Payday Lending Scheme (May 28, 2004), available at http://www.ag.ny.gov/pressrelease/spitzer-notpreemptedsuit-stop-illegal-payday-lending-scheme (describing lawsuit brought by former Attorney General Eliot Spitzer). Although plaintiffs argue that New York lacks the authority to enforce its laws against tribal lenders (and they may be right in the end), there is no question as to what those laws require.

For this reason, plaintiffs must establish a likelihood of success on the merits to win injunctive relief at this early stage. Our decision in Haitian Centers Council, Inc. v. McNary, 969 F.2d 1326 (2d Cir.1992), is not to the contrary. There, we upheld an order enjoining the Immigration and Nationalization Service ("INS") from limiting Haitian asylum applicants' contact with counsel while they were detained at Guantanamo Bay. Id. at 1347. We did so even though the plaintiffs demonstrated only a fair ground for litigation rather than a likelihood of success on the merits. Id. at 1339. The government could not identify any specific statute or regulation that allowed it to deny counsel to applicants at their screening interviews—a top official had announced the policy in a memo in response to a flood of applicants following a coup. The agency sought to moor its policy choice in the "broad grant of authority in the [Immigration and Nationality Act]" to screen emigrants. Id. We deemed that too general an authority to trigger the higher standard for a preliminary injunction. Id. "We believe that in litigation such as is presented herein," we explained, "no party has an exclusive claim on the public interest." Id. The "likelihood of success" prong, we held, "need not always be followed merely because a movant seeks to enjoin government action." Id.

This case is distinguishable from Haitian Centers Council in two respects. First, DFS acted to enforce a rule embodied in a specific statute. In contrast, the INS enforced a much more informal policy, hastily adopted without the benefit of either specific statutory instructions or regulations issued after a public notice-and-comment process. Second, New York's view of the "public interest" has been defined and reaffirmed by all three branches of government for many years. Unlike the novel issue presented by Haitian detainees seeking counsel while they awaited transfer to the continental United States, New York long ago confronted and answered the policy question posed in this case—whether businesses should be allowed to make triple-digit, short-term loans to those with an acute liquidity problem but no credit with which to solve it. Thus, "the full play of the democratic process involving both the legislative and executive branches has produced a policy in the name of the public interest embodied in a statute and implementing regulations." Able, 44 F.3d at 131. That policy is entitled to "a higher degree of deference" than a private party's position would merit, and we must be sure that, in all likelihood, New York has acted unlawfully before we substitute our judgment for that of the political branches. Id.

We recognize that the plaintiffs' argument that there are "public interests on both sides" in this case, is not without force. The tribes are independent nations, and New York's regulatory efforts may hinder the tribes' ability to provide for *112 their members and manage their own internal affairs. But as we explained in Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154 (2d Cir.2011), "[a] party seeking to enjoin governmental action taken in the public interest pursuant to a statutory or regulatory scheme cannot rely on the fair ground for litigation alternative even if that party seeks to vindicate a sovereign or public interest." Id. at 164 (holding that Oneida Nation must prove a likelihood of success on the merits to merit a preliminary injunction enjoining New York from enforcing tax scheme on the tribe's cigarette sales). Despite the possibly serious intrusion on tribal interests posed by this case, the plaintiffs must still meet the higher standard.4

II. Likelihood of Success on the Merits

Plaintiffs claim that DFS infringed upon tribal sovereignty in two ways. They argue that New York had no authority to order tribes to stop issuing loans originated on Native American reservations, and that New York regulated activity far outside its borders when it launched a "market-based campaign" to shut down tribal lending in every state in the Union. But to prove either of these claims, plaintiffs had to demonstrate that the challenged transactions occurred somewhere other than New York, and, if they occurred on reservations, that the tribes had a substantial interest in the lending businesses. As described below, the district court reasonably concluded that plaintiffs failed to do so.

A. The "Who," "Where," and "What" of the Indian Commerce Clause

Indian Commerce Clause jurisprudence balances two conflicting principles. On the one hand, Native Americans retain the right to "make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). On the other, tribes are only "semi-independent": their sovereign authority is "an anomalous one and of a complex character," McClanahan v. State Tax Comm'n of Az., 411 U.S. 164, 173, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), because tribes remain "ultimately dependent on and subject to the broad power of Congress," White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143, 100 S.Ct. 2578, 65 L.Ed.2d 665 (1980). With these two principles in mind, the Supreme Court has held that states may regulate tribal activities, but only in a limited manner, one constrained by tribes' fundamental right to self-government, and Congress's robust power to manage tribal affairs.5 *113 Id. at 142-43, 100 S.Ct. 2578. That delicate balance results in an idiosyncratic doctrinal regime, one that, as the Ninth Circuit has described, requires "careful attention to the factual setting" of state regulation of tribal activity. Barona Band of Mission Indians v. Yee, 528 F.3d 1184, 1190 (9th Cir.2008).

The breadth of a state's regulatory power depends upon two criteria—the location of the targeted conduct and the citizenship of the participants in that activity. Native Americans "going beyond the reservation boundaries" must comply with state laws as long as those laws are "nondiscriminatory [and] ... otherwise applicable to all citizens of [that] State." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) ("Mescalero I"). For example, in Mescalero I, the Supreme Court held that New Mexico could collect sales and use taxes from a ski resort owned by a Native American tribe that was located outside a reservation's borders. Id. at 149, 93 S.Ct. 1267. Every business in the state had to pay the tax, and the Indian Commerce Clause did not create an exception to that rule.

But once a state reaches across a reservation's borders its power diminishes and courts must weigh the interests of each sovereign—the tribes, the federal government, and the state —in the conduct targeted by the state's regulation. The scales will tip according to the citizenship of the participants in the conduct. As the Supreme Court explained inBracker,"[w]hen on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest." 448 U.S. at 144, 100 S.Ct. 2578. A state's interest waxes, however, if "the conduct of non-Indians" is in question. Id. A court conducts a more "particularized inquiry into the nature of the state, federal, and tribal interests at stake." Id. at 144-45, 100 S.Ct. 2578. In Bracker, the Supreme Court engaged in that "particularized inquiry" and held that Arizona could not impose fuel and use taxes on a non-Indian hauler moving timber across a reservation. Although Arizona wished to raise revenue, the federal government and the tribe's shared commitment to the continued growth and productivity of tribal logging enterprises outweighed Arizona's interest.

Thus, "the `who' and the `where' of the challenged [regulation] have significant consequences," ones that are often "diapositive." Wagnon v. Prairie Band Potawatorni Nation, 546 U.S. 95, 101, 126 S.Ct. 676, 163 L.Ed.2d 429 (2005). And even when the "who" and "where" are clear, a court must still understand "what" a regulation targets to weigh interests appropriately. A tribe's interest peaks when a regulation threatens a venture in which the tribe has invested significant resources. In New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983) ("Mescalero II"), the Supreme Court held that a state could not enforce its hunting laws against non-Indian sportsmen who hunted and fished on a reservation. Id. at 341, 103 S.Ct. 2378. The tribe had "engaged in a concerted and sustained undertaking to develop and manage the reservation's wildlife and land resources," and state regulations threatened to unsettle and supplant those investments. Id.

*114 Four years later, the Court echoed that conclusion in California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 94 L.Ed.2d 244 (1987). There, the Court permitted Native American tribes to continue operating on-reservation bingo games without complying with California's gambling restrictions, even though the tribes catered their games to non-Native American customers. The tribes had "built modern[,] ... comfortable, clean, and attractive facilities," and developed rules and procedures to ensure "well-run games." Those sunk costs were a "substantial interest" that outweighed California's interest in curbing organized crime's "infiltration of the tribal games." Id. at 219-21, 107 S.Ct. 1083.

In contrast, a tribe has no legitimate interest in selling an opportunity to evade state law. In Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), the Supreme Court held that tribal stores had to collect a state tax on cigarettes sold to non-Native American customers. Id. at 161, 100 S.Ct. 2069. All the "smokeshops offer[ed to non-member] customers, [that was] not available elsewhere, [was] solely an exemption from state taxation." Id. at 155, 100 S.Ct. 2069. "[W]hether stated in terms of pre-emption, tribal self-government, or otherwise," tribes did not have any legitimate interest in "market [ing] an exemption from state taxation to persons who would normally do their business elsewhere." Id.

Factual questions, then, pervade every step of the analysis required by the Indian Commerce Clause. A court must know who a regulation targets and where the targeted activity takes place. Only then can it either test for discriminatory laws, as in Mescalero I, or balance competing interests, as in Bracker And even if a court knows enough to trigger a weighing of competing interests, a court must still know what the nature of those interests are. Only then can it assess whether a regulation threatens a significant investment, as inMescalero II and Cabazon, or whether a tribe has merely masked a legal loophole in the cloak of tribal sovereignty, as in Colville. Given the fact-dependent nature of these inquiries, it is no surprise that, as detailed below, plaintiffs have failed to prove a likelihood of success on the merits at this early stage of the litigation.

B. The Ambiguity of Internet Loans and Cooperative Campaigns

Loans brokered over the internet seem to exist in two places at once. Lenders extend credit from reservations; borrowers apply for and receive loans without leaving New York State. Neither our court nor the Supreme Court has confronted a hybrid transaction like the loans at issue here, e-commerce that straddles borders and connects parties separated by hundreds of miles. We need not resolve that novel question today—the answer will depend on facts brought to light over the course of litigation. On the record now before us, plaintiffs have not offered sufficient proof of the "who," "where," and "what" of the challenged loans. Without knowing more facts, we cannot say that the District Court unreasonably concluded that New York regulated transactions brokered "entirely off tribal land," or that District Court erred when, relying on that conclusion, it held that New York's even-handed treatment of payday lenders did not violate the Indian Commerce Clause. Otoe-Missouria Tribe of Indians, 974 F.Supp.2d at 360.

First, plaintiffs claim that New York had no authority to demand that the lenders "cease and desist" from extending loans to New York residents. At the outset, we *115 note that even if these letters, which were sent to tribal lenders (among other payday lenders), constitute attempted regulation of onreservation activities, plaintiffs do not allege that the letters caused them harm: the damage to their business derived not from the cease-and-desist letter, which plaintiffs appear to have ignored, but from actions discussed below that allegedly caused the tribal lenders' non-tribal off-reservation banking partners to cease doing business with them.

In any event, plaintiffs provided insufficient evidence to establish that they are likely to succeed in showing that the internet loans should be treated as on-reservation activity. As the district court noted, plaintiffs "built a wobbly foundation for their contention that [New York] ... regulat[ed] activity that occur[ed] on the Tribes' lands." Id. The lenders' affidavits boldly (but conclusorily) assert that "loans are approved through processes that occur on ... Reservation[s]," but nowhere do they state what specific portion of a lending transaction took place at any facility physically located on a reservation. Plaintiffs averred that loans were processed through "website[s] owned and controlled by the Tribes," but never identified the citizenship of the personnel who manage the websites, where they worked, or where the servers hosting the websites were located. Loans were approved by a "Tribal loan underwriting system," a vague description that could refer to the efforts of Native American actuaries working on a reservation, but could also refer to myriad other "systems"—software developed and administered by an off-site company, paid consultants located anywhere in the world, or any number of other arrangements. Loans were funded out of "Tribally owned bank accounts," but those accounts were apparently held in, and perhaps funded by, non-tribal banks: the necessary involvement of non-tribal financial institutions is the very basis of plaintiffs' claim that their business collapsed when banks pulled out of the payday lending business after receiving New York's letter. Thus, even if we agreed that New York customers traveled elsewhere when they opened an internet browser, the lenders failed to establish where those customers metaphorically went, and who exactly approved their loans.

The complexities introduced by modern electronic commercial transactions also weaken plaintiffs' arguments. Much of the commercial activity at issue takes place in New York. That is where the borrower is located; the borrower seeks the loan without ever leaving the state, and certainly without traveling to the reservation. Even if we concluded that a loan is made where it is approved, the transaction New York seeks to regulate involves the collection as well as the extension of credit, and that collection clearly takes place in New York. The loan agreements permit the lenders to reach into the borrowers' accounts, most or all of them presumably located in New York, to effect regular, automatic wire transfers from those accounts to make periodic payments on the loans.

A court might ultimately conclude that, despite these circumstances, the transaction being regulated by New York could be regarded as on-reservation, based on the extent to which one side of the transaction is firmly rooted on the reservation. Because significant aspects of the transaction and its attendant regulation are distinctly not located on-reservation, however, ambiguities in the record about those portions of the transaction that purportedly are loom all the larger.6

*116 Given this decidedly ambiguous and insufficient record as to the details of the purportedly on-reservation portions of the loan transactions, plaintiffs insist that the courts' traditional "on-or-off reservation" analysis is an "overly-simplistic" approach to the "modern world of e-commerce." It is enough, plaintiffs argue, that tribes bear the "legal burden of the regulation," and, with that in mind, they contend that the court should proceed directly to the interest balancing prescribed in Bracker.

As discussed above, Supreme Court precedent that we are not free to disregard directs us to make the initial inquiry into the location of the regulated activity. Even assuming that the electronic nature of the transaction at issue here would permit us to distinguish those cases and proceed to interest balancing, plaintiffs have not provided sufficient evidence of what we would weigh were we to adopt that test. At first blush, the tribal lenders' payday loans resemble the Colville tribes' tax-free cigarettes: Tribes profit from leveraging an artificial comparative advantage, one which allows them to sell consumers a way to evade state law.7 In theory, the tribes may have built the electronic equivalent of "modern[,] ... comfortable, clean, attractive facilities" like the ones in Cabazon, and they may have "engaged in a concerted and sustained undertaking to develop and manage" limited capital resources as the tribe did in Mescalero II. But the record does not reflect any such "substantial interest." Cabazon, 480 U.S. at 220, 107 S.Ct. 1083. As noted above, it is not entirely clear just what the lenders have virtually "built," and in any event the record contains no information about the extent of investment that was required.8

Second, plaintiffs claim that DFS infringed upon tribal sovereignty by launching *117 a "national campaign" with the "express purpose of destroying out-of-state tribal businesses." That claim rests on equally tenuous ground: Read in their strongest form, DFS's letters requested that ACH and banks stop processing payday loans made to New York customers. But, again assuming that New York's letters requesting that banks and ACH cooperate with DFS constitute regulation, that effort was directed to those aspects of online lending that are remote from the reservation. The direct force of DFS's request fell upon parties located far from a reservation, on financial institutions that plaintiffs themselves claim are indispensable outside partners.

For DFS's "campaign" to have run afoul of the Indian Commerce Clause, the lenders must demonstrate that DFS treated financial intermediaries as a proxy for Native American tribes. To do so, plaintiffs would have to show that DFS acted with the intent of regulating tribes, or that its outreach had that effect. New York's alleged efforts to influence the banks and ACH can hardly be considered discriminatory, or specifically aimed at tribal lenders, as the state asked that the banks and ACH stem loans made by any online lender. The letters targeted a diverse group of lenders, the majority of whom had no affiliation with Native American tribes. If DFS cast a broad net with the ulterior motive of ensnaring just the tribes, that intent was certainly well-hidden.

It is not clear, moreover, that the DFS letters required the banks and ACH to take any particular action. To be sure, the letters contained a few ominous turns of phrases; they requested that financial institutions "choke-off ACH access" and "stamp out ... pernicious, illegal payday loans." But the letters also concluded with soft requests, asking for a simple meeting to explore "cooperation." It is impossible to know what this ambiguous tone, at once bombastic and conciliatory, implies about DFS's intent to take regulatory action to coerce the banks and ACH to act.

Nor is it clear that New York's actions would have had any different effects if the tribal lenders had not been explicitly identified by DFS. New York's usury laws apply to all lenders, not just tribal lenders, and DFS's letters to the banks and ACH made clear that New York regulators disapproved of the facilitation by banks of high-interest payday lending from outside the state. The Indian Commerce Clause has no bearing on New York's efforts to discourage banks from cooperating with non-Indian payday lenders.9 Because it is not clear why the banks and ACH reacted as they did to DFS's letters, it is uncertain that they would have continued to do business with tribal lenders if DFS had cited *118 only the general problem of payday lending.

Thus, it is not clear what to infer, if anything, from the decisions made by ACH and other banks. Although it is possible that the companies believed that they had to comply with DFS's agenda, it is equally possible that they simply made an independent calculation that the benefits of avoiding potential violations of New York law outweighed the benefits of doing business with payday lenders in general or with tribal lenders in particular. It is far from clear that the banks and ACH would have continued to do business with plaintiffs if DFS had simply requested that they drop their business relationships with payday lenders in general.

In sum, the record presented to the district provided ambiguous answers to what are fundamentally factual questions. With the benefit of discovery, plaintiffs may amass and present evidence that paints a clearer picture of the "who," "where," and "what" of online lending, and may ultimately prevail in this litigation. But at this stage, the record is still murky, and thus, the District Court reasonably held that plaintiffs had not proven that they would likely succeed on the merits.

CONCLUSION

For the foregoing reasons, we AFFIRM the District Court's denial of plaintiffs' motion for a preliminary injunction.

Attorneys and Law Firms

*402 Kevin A. Luibrand, Albany, NY, for Plaintiff-Appellant.

*403 Robert P. Charrow (Laura Metcoff Klaus, Cynthia E. Neidl, on the brief), Greenberg Traurig LLP, Washington, D.C., for Defendant-Appellee.

Before: WESLEY, CHIN, and LOHIER, JR., Circuit Judges.

Opinion

WESLEY, Circuit Judge:

Plaintiff-Appellant Angeline Cacchillo appeals from an October 22, 2010 order of the United States District Court for the Northern District of New York (McAvoy, I) denying Cacchillo's motion for a preliminary injunction for lack of standing. For the reasons stated below, we find that Cacchillo has standing to pursue a preliminary injunction and that her claim, contrary to Defendant-Appellee Insmed Inc.'s ("Insmed") suggestion, is ripe for review. We nevertheless AFFIRM because Cacchillo has not met her burden to obtain the preliminary injunction because she has not shown the requisite likelihood of success on the merits.

Background

Cacchillo suffers from Type 1 Myotonic Muscular Dystrophy ("MMD1"). From February 2008 to August 2008, Cacchillo took Insmed's drug IPLEX while participating in a clinical trial for NIMD1 patients. Cacchillo felt her condition greatly improved while on IPLEX and brought this action in part because she hopes to resume taking IPLEX.

The Food and Drug Administration ("FDA) has not approved IPLEX for general use. As a result, Cacchillo cannot resume IPLEX treatment unless she receives a special authorization—known as a "compassionate use" exception— from the FDA. Cacchillo contends that before she may file a compassionate use application, Insmed—as the manufacturer of IPLEX—must provide her with a form to be forwarded to the FDA stating that Insmed will provide Cacchillo with IPLEX in the event her application is approved. Insmed has refused to participate in this process. Further complicating matters, IPLEX is no longer produced, only limited stores of IPLEX remain and, according to Insmed, all remaining IPLEX has been committed to patients with amyotrophic lateral sclerosis ("ALS").

Cacchillo asserts that Insmed agreed to support her FDA compassionate use application and is now in breach of that agreement. Cacchillo commenced this action asserting claims pursuant to 42 U.S.C. § 1983 and New York State common law challenging Insmed's refusal to support her application. Cacchillo moved for a preliminary injunction requiring Insmed to:

Insmed opposed the motion, arguing, among other things, that Cacchillo lacked standing to pursue a preliminary injunction because her injury cannot be redressed when the remaining stores of IPLEX have already been committed to ALS patients. The district court agreed and denied Cacchillo's motion.

On appeal, Insmed contends that Cacchillo cannot establish either standing or ripeness to pursue a preliminary injunction. *404 We disagree, but nevertheless affirm the district court's opinion on the ground that Cacchillo has not shown that she is likely to succeed on the merits.1

Discussion

A. Standing

Generally, "[s]tanding is a federal Cacchillo's injury is unquestionably caused by Insmed. jurisdictional question `determining the power of the court to entertain the suit.' Carver v. City of New York, 621 F.3d 221, 225 (2d Cir.2010) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In particular, "a plaintiff must demonstrate standing for each claim and form of relief sought." Baur v. fneman, 352 F.3d 625, 642 n. 15 (2d Cir.2003). Thus, in order to seek injunctive relief, a plaintiff must show the three familiar elements of standing: injury in fact, causation, and redressability. Summers v. Earth Island Inst., 555 U.S. 488, 129 S.Ct. 1142, 1149, 173 L.Ed.2d 1 (2009) (citation omitted). We review the legal questions of whether a plaintiff has standing de novo. Shain v. Ellison, 356 F.3d 211, 214 (2d Cir.2004).

A plaintiff's burden to demonstrate standing increases over the course of litigation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. When a preliminary injunction is sought, a plaintiff's burden to demonstrate standing "will normally be no less than that required on a motion for summary judgment." Lujan v. Nat'l Wildlife Fed'n (Lujan I), 497 U.S. 871, 907 n. 8, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Accordingly, to establish standing for a preliminary injunction, a plaintiff cannot "rest on such `mere allegations,' [as would be appropriate at the pleading stage] but must `set forth' by affidavit or other evidence `specific facts,' which for purposes of the summary judgment motion will be taken to be true." Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal citation omitted).

Here, Cacchillo's injury in fact is that in breach of an alleged agreement between herself and Insmed, she has not received Insmed's support in preparing her compassionate use application. As set forth in Cacchillo's affidavit, this injury is concrete and particularized: Cacchillo seeks a specific document from Insmed that she contends is required for her compassionate use application. This injury is actual, and not conjectural or hypothetical, because Cacchillo does not have the document to which she currently claims entitlement. Insmed's lack of support is no less an injury because Cacchillo additionally hopes to receive both Insmed's support and, ultimately, FDA approval. Cacchillo does not have a document from Insmed because Insmed has declined to provide it.

Finally, Cacchillo's injury is redressable because she seeks relief directly from Insmed that is within the court's authority to order. See Sprint Commc'ns Co. v. APCC Servs., Inc., 554 U.S. 269, 273-74, 128 S.Ct. 2531, 171 L.Ed.2d 424 (2008) (defining redressability as an inquiry asking whether "it is `likely' and not `merely speculative' that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit" (some internal quotation marks omitted)). Cf. *405 Allen v. Wright, 468 U.S. 737, 758, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (finding redressability lacking where it was "entirely speculative" whether respondents' desired remedy —an injunction against the IRS—would remedy their alleged injury—failure of their children to receive a desegregated public education). Here, the court could redress Cacchillo's injury directly by ordering specific performance on the alleged underlying contract. That is, the court could redress Cacchillo's failure to receive the document from Insmed by ordering Insmed to provide her with the document.

In opposition, Insmed argues that Cacchillo's injury is not redressable because the court cannot order Insmed to provide Cacchillo with a document stating that Insmed will provide her with IPLEX when all of the remaining IPLEX has already been promised to ALS patients. Yet, whether Insmed has any unallocated IPLEX or whether Cacchillo's claim to IPLEX supercedes that of the ALS patients are both questions that go to the merits of Cacchillo's claims, not her standing to bring those claims. If we accepted Insmed's invitation to view the alleged unavailability of IPLEX as a barrier to redressability, then Insmed's mere assertion that it cannot supply IPLEX would deprive the court of jurisdiction to assess the validity of Insmed's defenses. Redressability does not permit us to wade so deeply into the merits. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (explaining that the "nonexistence of a cause of action [is not a] proper basis for a jurisdictional dismissal").

Based on the foregoing, Cacchillo has standing to pursue her motion for a preliminary injunction.

B. Ripeness

Insmed also contends that Cacchillo's claims are not ripe. We disagree.

Ripeness "is peculiarly a question of timing." Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). A claim is not ripe if it depends upon "contingent future events that may not occur as anticipated, or indeed may not occur at all." Id. at 580-81, 105 S.Ct. 3325.

In addition to requiring a commitment from Insmed to supply her with IPLEX if her compassionate care application is approved, Cacchillo's compassionate care application requires a physician to agree to act as Cacchillo's sponsor and investigator. See 21 C.F.R. §§ 312.3 (defining "sponsor" and "investigator"), 312.305 (setting forth the current requirements for a compassionate use application). Insmed argues that Cacchillo's claim is not ripe because she does not have a sponsor or investigator. Yet, Cacchillo avers in her Complaint that two doctors are "ready and eager to commence and support [her] compassionate use application." Insmed has produced no evidence to the contrary. As a result, Cacchillo's claim for a preliminary injunction is ripe for our consideration.

C. Merits Analysis

Although the district court denied Cacchillo's motion for lack of standing, we may affirm its decision "on any ground supported by the record."2 NXIVM Corp. v. Ross Inst., 364 F.3d 471, 476 (2d Cir.2004).

A party seeking a preliminary injunction must show "(a) irreparable *406 harm and (b) either (1) likelihood of success on the merits 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. FCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir.2010). The burden is even higher on a party like Cacchillo that seeks "a mandatory preliminary injunction that alters the status quo by commanding some positive act, as opposed to a prohibitory injunction seeking only to maintain the status quo." Id. at 35 It 4 (internal quotation marks omitted). 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." Id. (internal quotation marks omitted).

Here, even assuming Cacchillo has established that she will suffer irreparable harm, she has not met her burden to show that she has a likelihood of success on the merits. Cacchillo's claims hinge on Insmed's alleged promise to support Cacchillo's compassionate use application. Yet, Cacchillo has no evidence that such an agreement existed beyond her own vague recollection. Cacchillo has not described in any detail what exactly Insmed allegedly promised her; Cacchillo asserts only that (1) on its webpage, "Insmed stated that it supported clinical trial subjects' compassionate use applications;" and (2) a clinical research coordinator not employed by Insmed "told [Cacchillo] that Insmed would support [Cacchillo's] application."

Cacchillo's description of the alleged agreement is problematic for at least three reasons. First, Cacchillo's recollection of the contents of Insmed's website is belied by Insmed's exhibits showing that its website contained no such statements. Second. Cacchillo offers no theory of agency by which the clinical research coordinator's alleged statement would be binding upon Insmed. See Restatement (Second) of Agency § 27 cmt. b (explaining that only a principal's acts—and not those of an agent—may create apparent authority). Third. Cacchillo's vague descriptions of the alleged agreement, without more, strongly suggest that Cacchillo is not likely to establish that Insmed agreed to support her compassionate use application even if, as happened in the present case, Insmed concluded that the drug at stake is ineffective and better allocated to other patients.

Based on the foregoing, Cacchillo has not met her burden to establish that she is entitled to a mandatory preliminary injunction.

Conclusion

For the foregoing reasons, the order of the district court is hereby AFFIRMED.

Attorneys and Law Firms

Anthony Perri, Flushing, NY, pro se.

Johana Castro, Mary Theresa O'Flynn, Corporation Counsel of the City of New York, New York, NY, for Defendants.

MEMORANDUM AND ORDER

AMON, District Judge.

*1 Plaintiff Anthony Perri brought this pro se action pursuant to 42 U.S.C. § 1983 and state tort law alleging that the defendants violated his federal constitutional and state law rights by using excessive force during his detention, by exhibiting deliberate indifference to his medical needs, by intentionally inflicting emotional distress upon him, and by maintaining a custom, policy, and practice that resulted in the violation of these rights. The claims arise out of events taking place in the aftermath of his October 11, 2003 arrest for Assault in the Third Degree, Endangering the Welfare of a Child, and Harassment in the Second Degree. By motion filed on December 27, 2007, Perri seeks a preliminary injunction and/or temporary restraining order to enjoin what he refers to as the "illegal units" of the New York City Police Department from killing him or his two cats by "poison, gunshot, fire, [g]as, explosive device ... [o]r any other act of sabatoge, subterfuge, or, terrorism." (Mot. for Prelim. Injunction (PI Mot.") at 1.) He also seeks to enjoin these "illegal units" from entering his apartment, eavesdropping on his phone calls, from using his neighbors and familiy for the purposes of threatening or harassing him, and from vandalizing his property. (PI Mot. at 1-2.) He also seeks a preliminary injunction "No cut off Federal funding of these illegal units of N.Y.P.D. officers." (PI Mot. at 2.) The Court referred Perri's motion to Magistrate Judge Lois Bloom for a Report and Recommendation (R & R), which she issued on May 27, 2008, recommending that it be denied. Perri filed timely objections dated June 11, 2008. For the reasons that follow, the Court hereby adopts Magistrate Judge Bloom's R & R.

I. Standard of Review

Magistrate Judge Bloom's recommendation that the Court deny Perri's motion for a preliminary injunction is reviewed de novo. See 28 U.S.C. § 636(b)(1).

II. Discussion

As Magistrate Judge Bloom correctly noted, "`[a] party seeking a preliminary injunction must establish irreparable harm and either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in its favor.' (R & R at 2 (quoting Green Party of New York State v. New York State Bd. of Elections, 389 F.3d 411, 418 (2d Cir.2004) and citing Fed.R.Civ.P. 65).) She further noted that a movant must demonstrate irreparable harm before the other requirements are analyzed, and that, in order for harm to be irreparable, it must be non-compensable by an award of monetary damages. (R & R at 2 (citing Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir.2002) and Wisdom Import Sales Co., L.L.C. v. Labatt Brewing Co., Ltd., 339 F.3d 101, 113-14 (2d Cir.2003).) The R & R concludes that Perri's allegations-which consist of unsupported and bizarre allegations regarding the acts of the so-called "illegal units of the NYPD"—do not establish that he is in danger of irreparable harm. Moreover, Magistrate Judge Bloom concludes that although the allegations in the Third Amended Complaint were sufficient to survive the defendants' motion to dismiss, Perri has not demonstrated a likelihood of success on the merits. Accordingly, she concludes that he has not established that he is entitled to injunctive relief and recommends that the Court deny the motion.

*2 In his objections to the R & R, Perri fails to discuss the legal standards applicable to his motion. Instead, he continues to make allegations regarding the actions of the "illegal units" that are not only unsupported but also have nothing to do with the subject matter of this lawsuit.1 Magistrate Judge Bloom was correct to conclude that these allegations do not suffice to establish irreparable harm.

Moreover, as Magistrate Judge Bloom pointed out, and Perri failed to dispute, although his Third Amended Complaint passed muster under the liberal pleading standards of Federal Rule of Civil Procedure 8(a), he has failed to establish a likelihood of success on the merits of his lawsuit. He has used this docket number to submit periodic filings he tends to call "The Perri Report," with content similar to that in his objections to the instant R & R. Those filings, like the instant objections, deal not with the merits of his lawsuit, but rather contain a litany of sensational allegations pertaining not only to the NYPD, but also to various arms of government, both state and federal. Accordingly, Perri has not established that he is entitled to a preliminary injunction, because his allegations of irreparable harm are unsupported and bizarre and because he has established neither a likelihood of success on the merits nor serious questions regarding the merits and a balance of hardships tipping decidedly in his favor.

I. Conclusion

Magistrate Judge Bloom's R & R is hereby adopted. Peni's motion for a preliminary injunction is denied.

SO ORDERED.

REPORT AND RECOMMENDATION

BLOOM, United States Magistrate Judge.

Plaintiff, Anthony Perri, brings this pro se action pursuant to 42 U.S.C. § 1983 ("§ 1983"), alleging that on or around October 11, 2003, defendants used excessive force during his detention and were deliberately indifferent to his medical needs, thereby violating his constitutional rights. Plaintiff also alleges that defendants intentionally inflicted emotional distress upon him. By motion filed December 28, 2007, plaintiff seeks a preliminary injunction and a temporary restraining order to enjoin various police officers from, among other things, killing him, entering his apartment, eavesdropping on his phone calls, using his neighbors, landlord, or landlord's family to threaten or harass him, and to cut off funding of such "illegal units of N.Y.P.D." See docket entry 104. The Honorable Carol B. Amon referred plaintiff's motion to me for a Report and Recommendation in accordance with 28 U.S.C. § 626(b). For the following reasons, plaintiff's motion should be denied.

DISCUSSION

A party seeking a preliminary injunction must establish irreparable harm and either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidely in its favor." Green Party of New York State v. New York State Bd. of Elections, 389 F.3d 411, 418 (2d Cir.2004); Fed.R.Civ.P. 65. A movant must show irreparable harm before the other requirements for a preliminary injunction will be considered. Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir.2002). The Second Circuit has defined "irreparable harm" as "certain and imminent harm for which a monetary award does not adequately compensate," noting that "only harm shown to be non-compensable in terms of money damages provides the basis for awarding injunctive relief." Wisdom Import Sales Co., L.L.C. v. Labatt Brewing Co., Ltd., 339 F.3d 101, 113-14 (2d Cir.2003); see also Kamerling, 295 F.3d at 214 ("To establish irreparable harm, a party seeking preliminary injunctive relief must show that there is a continuing harm which cannot be adequately redressed by final relief on the merits and for which money damages cannot provide adequate compensation." (internal quotation omitted)). The same standards govern consideration of an application for a temporary restraining order. See Therrien v. Martin, No. 3:07cv-1285 (JCH), 2007 WL 3102181, at *5 (D.Conn. Oct. 19, 2007).

*3 In the underlying incident, which happened in October 2003, plaintiff was arrested, taken to the 109th precinct, had a panic attack, was taken to the hospital (after allegedly being dropped face-down as a test by the police and EMS workers of whether he was really suffering from an attack or was faking his symptoms), was taken back to the precinct, and ultimately was released. Plaintiff's third amended complaint alleges that he is an "emotionally disturbed person" ("EDP") and that the City has a policy, custom, or practice that constitutionally fails to afford proper treatment to EDPs when arrested.

Here, plaintiff seeks a "Praliminary [sic] injunction/Temporary Restraining Order"

Docket entry 104 at 1(A)-(E).

These conclusory allegations do not meet the requirements for preliminary injunctive relief. See Kamerling, 295 F.3d at 214 (noting that preliminary relief cannot be founded on "remote or speculative" harms). Plaintiff's belief that he is being followed and is in constant danger does not demonstrate irreparable harm. Plaintiff's self-description that he is emotionally disturbed has led to his filing this motion as well as another case that was dismissed. See Perri v. City of New York, et al., No. 08-cv-451 (ARR)(LB), slip op. at 6 (E.D.N.Y. Feb. 15, 2008) (denying injunctive relief and dismissing plaintiff's action against the "illegal units of the N.Y.P.D." as frivolous and on "the level of the irrational or the wholly incredible.") (quoting Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992)). See also Neitzke v. Williams, 490 U.S. 319, 325-28, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (defining as factually frivolous and therefore dismissible sua sponte claims encompassing "fanciful," "fantastic," or "delusional" allegations); Shoemaker v. U.S. Dept. of Justice, 164 F.3d 619, 1998 WL 681274, at *2 (2d Cir.1998) ("A case is frivolous when it presents `clearly baseless' factual contentions.") (quoting Neitzke, 490 U.S. at 327) (unpublished opinion).

*4 Plaintiff fails to connect defendants to the harm he alleges and makes only conclusory allegations. Although the Court denied the motion to dismiss the underlying complaint herein, it is respectfully recommended that plaintiff's motion for a preliminary injunction should be denied as he has not established irreparable harm and a likelihood of success on the merits.1

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made within the ten-day period. Failure to file a timely objection to this Report generally waives any further judicial review. Marcella v. Capital Dist. Physician's Health Plan, Inc., 293 F.3d 42 (2d Cir.2002); Small v. Sec'y of Health and Human Services, 892 F.2d 15 F.2d Cir.1989): see Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

SO ORDERED.

Attorneys and Law Firms

*507 Stephen T. Mitchell, New York, NY, for plaintiffappellant.

Jonathan A. Fields (Mary Schuette and Eva Martinez, on the brief), New York, NY, for defendants-appellees.

Before: SOTOMAYOR and KATZMANN, Circuit Judges, and CEDARBAUM, District Judge.*

Opinion

SOTOMAYOR, Circuit Judge.

Plaintiff-appellant Matricia Moore ("plaintiff" or "Moore") appeals from a judgment entered in the United States District Court for the Southern District of New York (Michael B. Mukasey, J.) denying her motion for an order to show cause seeking a preliminary injunction pursuant to Federal Rule of Civil Procedure 65. *508 Plaintiff also appeals the denial of an evidentiary hearing on her motion for preliminary relief. Because we agree with the district court that there is no evidence that defendants have intimidated plaintiff or other witnesses from participating in litigation, we hold that the court did not abuse its discretion in denying preliminary relief or the request for an evidentiary hearing.1

BACKGROUND

Plaintiff, an African-American woman, filed a motion for preliminary injunctive relief in October 2003 in connection with two discrimination lawsuits before the United States District Court for the Southern District of New York. The first of these lawsuits, filed in September 2000 against Consolidated Edison Corp. ("Con EC), alleged violations of the Family and Medical Leave Act, see 29 U.S.C. § 2601 et seq., and 42 U.S.C. § 1981, as well as violations of New York State Executive Law § 296. Plaintiff filed the second lawsuit in February 2003 against her supervisor at Con Ed, John Morrill (collectively with Con Ed, "defendants") alleging violations of 42 U.S.C. § 1981, New York Executive Law § 296 and New York City Administrative Code § 8-502.2

The alleged conduct underlying the complaints involved years of racially and sexually offensive misconduct. For example, according to plaintiff, her white male supervisor spoke to her about sexual fantasies involving plaintiff and told her on one occasion that "back in the old days you would be having my baby." Plaintiff further alleges that defendants attempted to derail her career at the company after she complained about unlawful discrimination by refusing to assist her professional development, sabotaging her work and giving her an unjustifiably poor performance review. In one performance evaluation in the record, the employer criticized plaintiff for "perpetuating her claims of harassment and discrimination," which in the employer's view evinced an objective "to undermine the morale of [the] department, and to cause division in the office." The report referred to the discrimination claims as "unsubstantiated" and warned that [u]ntil [plaintiff's] attitude changes ... there will be no opportunity for future development in this organization." The evaluation also criticized plaintiff for being antagonistic at work, causing disruptions, disrespecting internal procedures, failing to respond *509 promptly to requests from her managers and failing to complete projects assigned to her. The report described plaintiff's contributions to the department as "immaterial at best."

Shortly after receiving this negative evaluation, plaintiff sought a preliminary injunction enjoining defendants from "seeking to intimidate" her as a witness in federal civil rights litigation "by unlawfully disciplining her and terminating her from employment." She contended that defendants were threatening her and retaliating against her because she had agreed to serve as a witness in other cases against Con Ed. She alleged that the defendants sought to cause her "permanent harm" at a time when she suffered post-traumatic depression —a condition for which Con Ed had allegedly been found responsible in a workers' compensation proceeding. As part of her effort to secure a preliminary injunction, plaintiff also requested a hearing so that the district court would be "presented with a full and fair account of the defendants' efforts to intimidate witnesses."

The district court denied plaintiff's motion on October 31, 2003. Chief Judge Michael B. Mukasey rejected the request for a preliminary injunction primarily on the ground that plaintiff did not demonstrate irreparable injury. He further rejected the request for a hearing, holding that "[a]bsent any issue to try, there is no occasion for a hearing." Shortly after the district court denied the preliminary injunction, defendants terminated plaintiff's employment. Plaintiff filed a timely appeal.

DISCUSSION

We address first an Article III jurisdictional issue.3 Both parties agree that shortly after the district court denied the preliminary injunction, defendants terminated plaintiff's employment. This raises the issue of mootness, because "`[i]n general, an appeal from the denial of a preliminary injunction is mooted by the occurrence of the action sought to be enjoined.' Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir.1998) (quoting Bank of New York Co. v. Northeast Bancorp, Inc., 9 F.3d 1065, 1067 (2d Cir.1993)); see Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 69 (2d Cir.2001) ("[I]f the plaintiff loses standing at any time during the pendency of the proceedings in the district court or in the appellate courts, the matter becomes moot, and the court loses jurisdiction.").

A possible exception to this rule exists, however, where a court can feasibly restore the status quo. See Garcia v. Lawn, 805 F.2d 1400, 1402-04 (9th Cir.1986) (holding that appeal from the denial of preliminary injunction was not rendered moot by the termination of appellant's employment, because the court retained the power to reinstate the employment); Bastian v. Lakefront Realty Corp., 581 F.2d 685, 691 (7th Cir.1978) (holding that appeal from denial of preliminary injunction is not rendered moot where district court has power to restore status quo); see also Garcia, 805 F.2d at 1403 ("[T]he question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief."). This *510 Court has reserved the question of whether to recognize such an exception to the mootness doctrine. See Savoie v. Merchs. Bank, 84 F.3d 52, 59 n. 5 (2d Cir.1996) (citing Bank of New York Co., 9 F.3d at 1067); see also Knaust, 157 F.3d at 88 n. 1. We now hold that under the facts of the instant case, such an exception exists.

The occurrence of the action sought to be enjoined normally moots the request for preliminary injunctive relief because this Court has `no effective relief to offer'" once the action has occurred. Id. at 88 (quoting CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 621 (1st Cir.1995)). In this case, however, we do not lack the ability to offer effective relief, because an order of injunctive relief requiring reinstatement of plaintiff could negate or at least substantially mitigate the adverse effects of one of the "irreparable harms" the plaintiff fears—the intimidation of witnesses in her ongoing litigation against defendants— by signaling to employees that defendants may not legally fire them for offering to testify in a discrimination suit. See Holt v. Conti Group, Inc., 708 F.2d 87, 90-91 (2d Cir.1983) (holding that a district court may in some circumstances grant a preliminary injunction ordering that a defendant in a discrimination case reinstate a plaintiff employee who has already been fired if court finds that defendant's firing of plaintiff presents risk of intimidating other employees from testifying against defendant). Under these circumstances, the typical concerns requiring a dismissal on mootness grounds do not apply. Compare, e. g., United States v. Ciccone, 312 F.3d 535, 544 (2d Cir.2002) (dismissing an appeal as moot because "it would be impossible for the Court "to grant any effectual relief whatever" to the appealing party (emphasis added) (citation and internal quotation marks omitted)).4 We therefore hold that the instant appeal is not moot.

We turn next to the merits of plaintiff's request for preliminary injunctive relief. District courts may ordinarily grant preliminary injunctions when the party seeking the injunction demonstrates (1) that he or she will suffer irreparable harm absent injunctive relief, and (2) either (a) that he or she is likely to succeed on the merits, or (b) "`that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party.'" No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir.2001) (per curiam) (quoting Otokoyama Co. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir.1999)). Such relief, however, "`is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'" Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (emphasis and citation omitted). Where there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992); see also Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees & Rest. *511 Employees Int'l Union, 239 F.3d 172, 177 (2d Cir.2001). The district court has wide discretion in determining whether to grant a preliminary injunction, and this Court reviews the district court's determination only for abuse of discretion. See Green Party of N.Y. v. N.Y. State Bd. of Elections, 389 F.3d 411, 418 (2d Cir.2004); Columbia Pictures Indus., Inc. v. Am. Broad. Cos., 501 F.2d 894, 897 (2d Cir.1974).

The district court denied plaintiff's motion for a preliminary injunction on the ground that there was no showing of irreparable injury. Specifically, the court held that "the performance evaluation in question does not itself cause irreparable injury, nor does it threaten termination." The district court held in the alternative that even if termination did occur, "any resulting injury" would be "fully compensable in money damages." Finally, the court added that the "suggestion of irreparable psychological harm [was] sheer speculation," and that "even assuming arguendo that the threat of harm to third parties may be considered," plaintiff lacked third party standing to sue on others' behalf.

We affirm the district court's conclusions that the negative evaluation was insufficient to demonstrate irreparable harm and that the claim of psychological harm was too speculative to warrant preliminary relief. While claims of emotional and physical harm may in some circumstances justify preliminary injunctive relief, see Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 333 (2d Cir.1995), the district court did not abuse its discretion in rejecting such claims here. See Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir.2002) (noting that preliminary relief cannot be founded on "remote or speculative" harms); see also Guitard v. United States Secy of Navy 967 F.2d 737, 742 (2d Cir.1992) ("[T]he injuries that generally attend a discharge from employment —loss of reputation, loss of income and difficulty in finding other employment—do not constitute the irreparable harm necessary to obtain a preliminary injunction." (citing Sampson v. Murray 415 U.S. 61, 89-92, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974))). We also affirm the court's holding that the alleged harm to third parties did not provide plaintiff a basis for a preliminary injunction in this case. Even if Moore had standing to raise the rights of other employees, there was no evidence to support her allegation that she was being intimidated from testifying on her co-workers' behalf.5 On the contrary, plaintiff had been an active participant in litigation against Con Ed for several years.

To the extent that the district court implied in its order that injuries resulting from retaliatory termination are always compensable in money damages, we disagree. As we held in Holt, "[a] retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights under *512 the [law] or from providing testimony for [a] plaintiff in [his or] her effort to protect [his or] her own rights. These risks may be found to constitute irreparable injury."6 708 F.2d at 91. The district court's suggestion to the contrary, however, does not provide a ground for reversal here, because plaintiff did not offer any evidence that witnesses in this case would be intimidated from testifying on plaintiffs' behalf. See id. (holding that there was no presumption of irreparable injury in retaliatory discharge cases). Though the negative employment evaluation sharply criticizes plaintiff for her participation in the litigation, plaintiff did not allege that other employees were aware of this evaluation, much less intimidated by it. Nor did plaintiff allege that she herself was intimidated from participating in litigation against defendants. Thus, while a retaliatory discharge may in some cases intimidate witnesses and thereby inflict irreparable harm, see id., the district court did not abuse its discretion in concluding that there was no risk of such irreparable harm presented here.

Because the record is devoid of any evidence of witness intimidation, we also affirm the district court's denial of an evidentiary hearing on the motion for preliminary relief. See Charette v. Town of Oyster Bay 159 F.3d 749, 755 (2d Cir.1998) (noting that an evidentiary hearing is not required when, inter alia, disputed facts are amenable to complete resolution on a paper record).

*513 In her brief on appeal, plaintiff also includes claims under 42 U.S.C. § 1985(2) and (3), as well as under 18 U.S.C. § 1512. Plaintiff did not include these claims in her complaint or in her motion for preliminary relief; nor did the district court discuss them. We therefore do not address them. See Sniado v. Bank Austria AG, 378 F.3d 210, 213 (2d Cir.2004).

CONCLUSION

For the foregoing reasons, the judgment of the district court denying preliminary injunctive relief and an evidentiary hearing is AFFIRMED.

Attorneys and Law Firms

*142 Glenn Edward Murray, Buffalo, NY, Thomas T. McVami, Westhampton Beach, NY, for Plaintiffs.

William Lonergan, Asst. Atty. Gen., Buffalo, NY, Andrew Lipkind, Williamsville, NY, Patrick B. Curran, Damon & Morey, Buffalo. NY, Robert C. Mulvey, Ithaca, NY, Brian J. O'Donnell, Rowley, Forrest, O'Donnell & Beaumont, Albany, NY, Mark D. Grossman, Niagara Falls, NY, Richard J. Barnes, Morris. Cantor. Barnes & Goodman, Buffalo, NY, Corey Hogan, Corey J. Hogan & Associates, Amherst, NY Cheryl Smith Fisher, Buffalo, NY, Denise O'Donnell, Acting U.S. Atty., Buffalo, NY Lawrence J. Vilardo, Mark Richard Uba, Connors & Vilardo, Buffalo, NY, Mark R. Walling, Watson. Bennett, et al., Buffalo, NY, Brian J. O'Donnell, *143 Rowley, Forrest, O'Connell & Beaumont, Albany, NY, Kevin S. Casey, Hite & Casey, Albany, NY, Michael Sawicki, Buffalo, NY, for Defendants.

DECISION AND ORDER

ARCARA, District Judge.

INTRODUCTION

On July 18, 1996, plaintiffs, Amy Fisher ("Fisher"), an inmate at the Albion Correctional Facility ("Albion"), and her mother Roseann Fisher ("Mrs.Fisher"), commenced this action in the Eastern District of New York. The case was subsequently transferred to this Court.

Plaintiffs allege that, while Fisher has been incarcerated in Albion, she has been raped and sexually abused by several correction officers. They claim that they complained about the correction officers' conduct to various officials in the New York State Department of Correctional Services ("DOCS"), but their complaints were not acted upon, and Fisher was, in fact, retaliated against as a result of the complaints. Plaintiffs' complaint asserts claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2(a); the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. § 651 et seq.; the Copyright Revision Act of 1976, 17 U.S.C. § 101 et seq.; the New York State Constitution; N.Y. Exec. L. § 290; and the New York common law. Plaintiffs seek compensatory and punitive damages, declaratory judgment and injunctive relief.

The defendants in this case are Glenn S. Goord, the Acting Commissioner of DOCS and former Deputy Commissioner; Thomas A. Coughlin, III, former Commissioner of DOCS: Philip Coombe, former Assistant Deputy Commissioner and Acting Commissioner of DOCS; Anthony J. Annucci, Deputy Commissioner and Counsel of DOCS; Anginell Andrews, Superintendent of Albion: Gary Stevens, Deputy Superintendent of Albion: Brian Malone, Inspector General ("IG") of DOCS: Barbara D. Leon, an IG investigator; Martin Kearney, Acting Captain at Albion: and Robert Schwartz, Gary DiSalvo,1 Frederick Hemley, Ira Stiles, Michael Galbreath, Dean A. Schmidt,2 Bruce Kuttner, Richard Shimley, Mark Taylor, and Dean Thomas,3 all of whom are present or former correction officers at Albion.4

After the case was transferred to this Court, plaintiffs moved for a temporary restraining order ("TRO"), pursuant to Fed.R.Civ.P. 65, requiring the defendant prison officials to surrender Fisher to the United States Marshal for the Western District of New York for the purpose of transporting her to the Danbury Federal Correctional Institute in Danbury, Connecticut ("Danbury"), where she would be incarcerated during the pendency of this litigation.5 Oral argument was held on the TRO motion on July 26, 1996. The Court denied the motion orally from the bench and scheduled a date for a preliminary injunction hearing.

On August 9, 1996, plaintiffs filed their motion for a preliminary injunction, seeking: (1) an order requiring that Fisher be transferred to Danbury during the pendency of this action: and (2) an order requiring defendant Kuttner to provide a blood sample. Because *144 plaintiffs had problems effecting service upon all the defendants, the original date for the preliminary injunction hearing had to be adjourned. Plaintiffs subsequently reported to the Court that they had not effected service on defendant Kuttner, but agreed to proceed with the preliminary injunction hearing on the condition that Kuttner would not be bound by any injunction issued.6

In light of plaintiffs' request that the Court order Fisher transferred to a federal correctional facility, and because neither the United States nor the Federal Bureau of Prisons ("FBP") is a named party in this action, the Court contacted the United States Attorney's Office and alerted it to the situation. The United States requested and was granted permission to appear milieus curiae. The United States argues that the relief requested by plaintiffs, i.e., transfer to a federal facility pending resolution of this case, is improper and contrary to 18 U.S.C. § 3626(a), because the prospective relief extends further than necessary to correct the alleged wrong. The United States also argues that the Court lacks authority to order FBP to accept a state prisoner into its custody under the circumstances present here.

In response to the position of the United States, plaintiffs argue, inter alia, that 18 U.S.C. § 3626 is unconstitutional. Accordingly, pursuant to 28 U.S.C. § 2403, the Court has issued an order allowing the United States to intervene regarding the question of the constitutionality of 18 U.S.C. § 3626. However, because the Court's decision on the instant motion is not based on 18 U.S.C. § 3626, the Court has not required, up to this point, any additional briefing on the issue of the constitutionality of the statute.

The Court held a hearing on plaintiffs' preliminary injunction motion on September 24, 25, 26, 27 and 30, and October 21, 22 and 23, 1996. In addition to the evidence offered at the hearing, the parties offered various affidavits and exhibits. Following the hearing, the parties were given an opportunity to brief their respective positions, and oral argument was held on December 3, 1996.

After carefully considering the evidence adduced at the hearing and the various affidavits and exhibits, reviewing the submissions of the parties, and hearing argument from counsel, the Court denies plaintiffs' motion for a preliminary injunction. The following constitutes the Court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).

FINDINGS OF FACT

I. General Background

Plaintiff Amy Fisher is currently an inmate at Albion, serving a sentence of five to fifteen years for assault in the first degree. The criminal case resulting in her incarceration received extensive media coverage, which resulted in Fisher, herself, attaining significant notoriety.

Albion is a women's medium security facility located in Albion, New York, about midway between Buffalo and Rochester. Fisher has been housed at Albion since December 1992, except for two brief periods when she was transferred to the Bedford Hills Correctional Facility ("Bedford Hills"), located in Westchester County, so that she could attend other court proceedings downstate.

Fisher claims that throughout the time she has been incarcerated at Albion, she has been raped and sexually abused by several of the defendant correction officers. She claims that she complained about her treatment to DOCS authorities, including the Superintendent at Albion and the DOCS IG, but they took no action on her complaints and, in fact, retaliated against her by confining her in Albion's special housing unit ("SHU").

In general, defendants deny Fisher's allegations of rape and sexual abuse. Defendants Galbreath, DiSalvo, and Hemley have submitted sworn affidavits denying Fisher's allegations of rape and sexual abuse. Defendant Schwartz testified at the hearing that he never had any sexual relations with *145 Fisher. The defendant prison officials deny that Fisher was placed in SHU for retaliatory purposes, and claim instead that Fisher was initially placed in SHU for disciplinary reasons after she violated a rule of inmate behavior by sending "love letters" to a correction officer, and that she was placed in involuntary protective custody ("IPC") in SHU following her disciplinary confinement in order to protect her from other inmates.

II. Plaintiffs' Witnesses7

A. Hearing Testimony of Amy Fisher8

1. Schwartz

Plaintiff Amy Fisher testified that she arrived at Albion in December 1992. Hearing Transcript ("T.") 12. About two weeks after her arrival, she first met defendant Schwartz, who was a sergeant at Albion. T. 8. She testified that Schwartz called her to the grievance office in B block, introduced himself, and told her he wanted to talk to her. T. 12-13. Fisher testified that Schwartz was "very nice" and asked her how she was getting along at Albion. T. 12-13.

Fisher testified that, initially, she talked to Schwartz only about once or twice a week, but as things progressed, she got to know him better and they talked every day. T. 14. She testified that Schwartz spoke to her about the relationship between imnates and correction officers, and told her that "it's always good to have friends wherever you go and, you know, that he's my friend and that he wants to make sure that I'm all right. And, if I have a problem, to come to him." T. 14. She stated that Schwartz told her that she would have to behave and cooperate, and that if she did not, the correction officers would not help her or protect her from other inmates. T. 15.

Fisher testified that Schwartz told her about misbehavior reports (called "tickets") and that if she were to get a number of tickets, the parole board would not grant her parole. T. 16-17. She said that he explained to her that "the system is like a game, and if you play their game, you'll go home, if you buck the system or you don't cooperate and play their game, they keep you longer and they may make your life miserable while they're keeping you. They don't protect you." T. 17.

Fisher testified that for about five or six months, Schwartz was "just [her] friend." T. 17. She thought he "was really nice" and she felt safe. T. 17. She testified that Schwartz took care of tickets she received from other correction officers and resolved problems she had with other correction officers. T. 17-18. Fisher testified that, during this five or six-month period, she had no sexual contact with Schwartz. T. 19. She further testified, however, that in the summer of 1993 she had sexual relations with Schwartz on two or three occasions in the administration building at Albion. T. 19.

While testifying, Fisher never used the word "rape" to describe her sexual interactions with Schwartz. She also never stated that Schwartz forced, threatened or coerced her to have sex with him. Nor did she state that she refused to have sex with him, or that she told him no. In fact, she admitted that she did not resist Schwartz. T. 249-50. She never tried to fight him off, scream or yell. T. 21.

Fisher testified that, in September 1993, she was transferred to Bedford Hills, and returned to Albion at the end of November 1993. T. 21. When asked whether she had any further physical contact with Schwartz after returning from Bedford Hills, she answered, "I can't even answer honestly. I don't remember. I don't know why I don't know. I just don't." T. 22. Fisher testified that her relationship with Schwartz changed after she returned from Bedford Hills. T. 22. She tried to distance herself from him by not talking to him or being friendly toward him. T. 22-23. She testified that Schwartz initially expressed concern, but then became jealous and asked her if she was involved with another correction officer. T. 23. She testified that Schwartz would pull her hair, make her talk to him, ask her if she loved him, scream at her, and make her *146 repeat over and over again love you, I love you, Bobby, things like that." T. 23. Fisher testified that this happened on more than one occasion and made her feel scared. T. 23-24. She testified that the reason she ended her relationship with Schwartz was because "when I was away from him I really—I didn't miss him." T. 24.

Fisher testified that, through her attorney, she reported Schwartz' conduct to officials at Albion. T. 24. She spoke to the DOCS IG in January 1994 and the next day Schwartz was transferred. T. 25. Fisher testified that after she complained in January 1994, "[her] life became unbearable and [she] didn't report anything again for quite a while." T. 176.

2. Hemley

Fisher testified that after she returned to Albion from Bedford Hills in November 1993, she had sexual relations with defendant Hemley, a correction officer at Albion, on three occasions. T. 29-37. The first time she had sexual relations with Hemley was at the end of November or the beginning of December 1993. She testified that Hemley came by her bed during the night, put his hand over her mouth and told her to be quiet. He then motioned to her to come with him and directed her to go into the staff bathroom. She testified that, once in the bathroom, Hemley started kissing her and [she] ended up having sex with him." T. 29.

Fisher testified that the second occasion occurred in January 1994. T. 34. Once again, Hemley approached her during the night and they had sexual relations. T. 34-35. With regard to the second occasion, Fisher testified, "I don't know why I did it, I just did it because I did it. I didn't think about it. I didn't want to do it, but felt like—like I just—if I didn't do it, he wouldn't be my friend anymore." T. 36. Fisher testified that after the second occasion, she was "a little uncomfortable with it." T. 29.

Fisher testified that when she reported Schwartz to the DOCS IG in January 1994, as discussed above, the IG asked her if she ever had sexual relations with any other correction officer and she told him "yes, Officer Hemley." T. 38. Fisher testified that she had sexual relations with Hemley a third time, on or about April 15, 1994. T. 36. She stated that she had sex with him because "[she] didn't know how to say no." T. 29.

While testifying, Fisher never used the word "rape" to describe her sexual interactions with Hemley. She also never stated that Hemley forced, threatened or coerced her to have sex with him. Nor did she state that she refused to have sex with him, or that she told him no. In fact, she admitted that she did not resist Hemley. T. 252-53. She did not try to fight Hemley off, scream or yell. T. 33. When asked why not, she responded, [b]ecause he always acted like he was our friend and everything and I just—I liked it that he was my friend and, you know, he was there and he used to joke and play with us and I just—I don't know. I didn't know how to—like I just wanted him to be my friend." T. 34.

3. Shimley

Fisher testified that she first met defendant Shimley in 1993. T. 38. Shimley was the correction officer in charge of the gym at Albion during the day shift. T. 38. Fisher testified that, at first, Shimley "was really nice and polite." T. 60. She testified that at the end of 1994, or the beginning of 1995, Shimley showed her pictures of himself in which he was naked or semi-naked.9 T. 51-53.

Fisher testified that her relationship with Shimley changed in about February 1995. T. 60. At that point, Shimley became angry with her. T. 57-60. Fisher testified that from February to May 1995, Shimley routinely called her names, such as "whore" and "slut," and exposed himself to her and asked her to perform sexual acts. T. 58-60. Fisher testified that in May or the beginning of June 1995, Shimley called her into the recreation office, grabbed her arm and tried to *147 write on it with a permanent black marker. T. 47-48. She asked him what he was doing and he said he was going to "brand" her a "slut." T. 47. She then pulled away and left the area. T. 48.

Fisher testified that sometime in July 1995, she was required to report to the gym as part of a fire drill. T. 48. She had just gotten out of the shower and reported wearing only her bathrobe. T. 48. Fisher testified that Shimley walked up to her, grabbed her breast and "twisted it real hard." T. 48. Fisher also testified that in November 1995, Shimley kicked her in the shin. T. 62-63.

Fisher testified that she reported her problems with Shimley to prison authorities at Albion in the fall of 1995. T. 61-63. Her complaints were forwarded to the DOCS IG, and she spoke with IG investigator Leon about Shimley in December 1995. T. 61-63.

4. DiSalvo

Fisher testified that she first met defendant DiSalvo, a correction officer at Albion, in January 1993, when she was placed in protective custody in SHU. T. 65. She testified that while in SHU, DiSalvo kept coming to her door and demanding that she give him her autograph. T. 66. Fisher testified that when she refused. DiSalvo called her names and made sexual comments to her. T. 66. Fisher testified that she reported DiSalvo's conduct to prison authorities. T. 66.

Fisher testified that she did not see DiSalvo again until September 1994. T. 67. She testified that, at that time, she asked DiSalvo for a roll of toilet tissue so that she could cover the window to her cubicle while she was using the toilet, but DiSalvo refused and stared at her through the window while she was using the toilet. T. 68. Fisher testified that she told DiSalvo to leave her alone, but he told her that she had gotten him into trouble when she complained about his previous conduct in January 1993, and called her a "bitch." T. 69.

Fisher testified that, on October 14, 1994, she was raped by DiSalvo in a stairwell at Albion. T. 71-72, 253. She testified that she did not fight or scream, but did resist and told DiSalvo to stop. T. 72, 254. She testified that nobody else witnessed the incident. T. 172. Fisher admitted that she never brought this incident to the attention of anyone at Albion or DOCS. T. 73. When asked why not, she stated lbjecause I told my attorney who was representing me at the time, because I was trying to bring about a lawsuit like this at that time." T. 73.

5. Kuttner

Fisher testified that she first met defendant Kuttner, a correction officer at Albion, in May 1993. T. 107. She testified that, on July 26, 1995. she had sexual relations with Kuttner. T. 108-09. She stated that she was

T. 108-09. Fisher and Kuttner then had sex. T. 109-10.

While testifying, Fisher never used the word "rape" to describe her sexual encounter with Kuttner. She also never stated that Kuttner forced, threatened or coerced her to have sex with him. Nor did she state that she refused to have sex with him, or that she told him no. She testified that she did not try to stop Kuttner and never tried to fight him off, yell or scream. T. 109, 255. When asked whether she wanted to have sex with Kuttner, she testified, [n]ot really, no, I was just, you know, he was joking with me and I thought it was a joke and I went in there and it wasn't a joke and I didn't know how to get out of it." T. 110. When asked whether she thought she could have fought him off, she responded, probably could have screamed or something, I don't know, I didn't think about it at the time." T. 110.

Fisher testified that she brought the incident regarding Kuttner to the attention of prison authorities at Albion in the beginning *148 of April 1996, approximately nine months after the incident occurred, and that a representative from the IG's office came to speak to her about the incident at the end of April 1996.10 T. 110-11.

6. Schmidt

Fisher testified that she came to know defendant Schmidt while he was working as a correction officer at Albion. T. 111-12. Fisher testified that, at approximately 3:00 p.m. on April 8, 1996, she was ordered to go to the library to pick up legal mail. T. 115. She was told that the order came from Schmidt. T. 115.

Fisher testified that when she went to the library at 3:00 p.m. to pick up her legal mail, she was accompanied by inmate Lillian Nieves. T. 192, 296. Fisher testified that she and Nieves were good friends. T. 182, 297. They lived together, did everything together, talked together every day, and confided in each other. T. 181, 192. Fisher admitted that she told Nieves on numerous occasions that she wanted to get out of Albion, but denied telling Nieves that she had a "plan" for getting out. T. 181-82. Fisher did admit, however, that she had a "plan" to get out of Albion by filing a lawsuit. T. 182. Fisher also admitted that, on the way to the library, she and Nieves had a conversation, but denied that she ever discussed with Nieves a "plan" to "set up" Schmidt so that she could get out of Albion. T. 192-93. Fisher testified that Nieves was no longer her friend because Nieves had made up lies about her, manipulated the system for favors at Albion, and lied about her in a formal affidavit. T. 183.

Fisher testified that, when she arrived at the library at 3:00 p.m., Schmidt told her that he was busy and that she should return at 8:00 p.m. T. 116. Fisher testified that she returned to the library at 8:00 p.m., but Schmidt told her she would have to wait. T. 118. At approximately 8:30 p.m., Schmidt let all the other inmates, except Fisher, out of the library. T. 118-19. Fisher testified that she then asked Schmidt for her legal mail, but he replied, "come on, you know you don't have any legal mail," and started making sexual comments to her. T. 119. Fisher testified that she tried to walk out of the library, but Schmidt grabbed her and stated that "it would be a shame" if he had to call-in and report that she was hiding in the library and tried to assault him. T. 120. Fisher testified that Schmidt then raped and sodomized her. T. 121, 256. Later that evening, after the incident, she spoke with Nieves about it. T. 295, 298-99.

When receiving legal mail, inmates are required to sign a log book. Although Fisher initially denied signing the log book on April 8, 1996, T. 272, she later admitted that she had signed the book. T. 274. See Defendants' Exhibit 13. Fisher testified that even though she signed the log book that day, she did not receive legal mail. She explained that she was "just playing around" when she wrote her name at the top of the page of the log book. T. 274, 281.

Fisher testified that she reported the incident involving Schmidt to prison authorities at Albion a few days after it happened.11 T. 122, 202. She did not report the rape to Albion medical personnel. T. 203. Fisher testified that, in late April 1996, she spoke with IG investigator Leon about the incident. T. 123-24.

7. Thomas

Fisher testified that she first met defendant Thomas in March 1995. T. 128. He was the night-shift housing officer in her cell block. T. 128. Fisher testified that in September 1995, she awoke one night and found Thomas stroking her hair. T. 129. She found it irritating and told him to stop. T. 184-85. She testified that this happened again on a number of other occasions. T. 130. She further testified that at the end of December 1995, or possibly January 1996, Thomas came into her cubicle while she was asleep and began kissing her. T. 131-32. She stated that, at first, she did not realize *149 what was happening and kissed him back until she finally woke up. T. 132. She testified that she never brought Thomas' conduct to the attention of anyone at Albion or DOCS. T. 133. Fisher testified that she was not scared of Thomas. T. 184.

8. Bailey

Fisher testified that shortly after arriving at Albion in 1992 or 1993, she met correction sergeant William Bailey.12 T. 261. She testified that over the years they got to know each other better and became close in 1995. T. 262. She described their relationship as a "personal ... [and] loving friendship," but nonsexual. T. 262. Fisher stated that she wrote Bailey "many, many letters." T. 259. In particular, she admitted writing two letters to Bailey in May 1996, about one month after the incident involving defendant Schmidt, in which she expressed her strong feelings toward Bailey. T. 257, 260-61, 268, 300. See Defendants' Exhibit 4 at pp. 7-9. These letters are now in the possession of DOCS. T. 260. In one letter, dated May 1, 1996, Fisher states, miss you a lot [and] wish that you could be here with me. I'd make you lie down next to me so I could fall asleep on your chest." She states later in the same letter, love you Billy." Both letters are signed, "love me." The Court finds that these letters can best be described as "love letters" from Fisher to Bailey. Indeed, Fisher admitted at the hearing that she was in love with Bailey. T. 300.

9. Other Complaints/Grievances

Fisher testified that she was placed in disciplinary confinement in SHU from June 26, 1996 to August 26, 1996, for writing the love letters to Bailey.13 T. 134-35, 268, 270, 300-02. While in disciplinary confinement in SHU, she was locked in her cell for 23 hours a day and was allowed only one hour a day of recreation outside. T. 135. She was allowed a shower every other day and her meals were provided to her in her cell. T. 135.

Fisher testified that, while she was in disciplinary confinement in SHU, she was not allowed to recreate with other inmates. T. 136-39. She testified that it was her experience that other inmates in SHU were allowed to recreate together. T. 137-39. She was told that Superintendent Andrews had ordered that she must recreate alone. T. 136, 138-39. She testified that her one hour of recreation was spent in a large recreation yard that all the other inmates in SHU were allowed to use, but at a different time. T. 139.

Fisher testified that she filed a formal grievance complaint, through the inmate grievance office, about the requirement that she recreate alone. T. 139. See Defendants' Exhibit 37. She testified that after she filed her grievance, she was no longer allowed to recreate in the large recreation yard, but was forced to use a smaller area behind her cell, and that she was still required to recreate alone. T. 139-40. Fisher testified that she filed another grievance regarding this same issue. T. 140. She testified that she eventually received a reply from Superintendent Andrews stating that the Superintendent felt that, due to Fisher's published allegations,14 it was more prudent to have her recreate alone. T. 141.

Fisher testified that at the end of 60 days of disciplinary confinement, she was not released *150 from SHU. T. 141. Instead, her status was changed to IPC and she remained in SHU. T. 141. Fisher testified that Captain Sherlock, a prison official at Albion, filled out an IPC form stating that other inmates in the general population could or would cause her harm. T. 141. While in IPC, Fisher was allowed one hour of recreation and two hours of television a day. T. 142. She was also allowed to have her personal property with her, including her clothes and cosmetics, and ten minutes a day for telephone calls. T. 142, 144. Fisher testified that, while she was in SHU, attempts were made by prison officials to tape record her telephone calls. T. 144-50. See Defendants' Exhibit 2 (Memorandum to Watch Commander from Correction Officer Hurcarella, dated September 4, 1996, describing unsuccessful attempt to tape record one of Fisher's phone calls). Fisher testified that while she was confined in SHU, she was denied virtually all human contact. T. 151. Fisher admitted, however, that while in IPC, she specifically asked not to recreate with the only other inmate in protective custody, inmate Figueroa. T. 312. See Defendants' Exhibit 28. Fisher explained that she did not want to recreate with Figueroa because Figueroa was a friend of Nieves, and she did not want to be placed in a position where Figueroa could say something about her that was not true.15 T. 351.

Fisher testified that she was assaulted by other inmates at Albion on at least three occasions. On August 11, 1993, she was punched in the mouth by another inmate. On September 15, 1993, another inmate tried to strangle her in the phone room. On September 23, 1994, another inmate punched her while she was sleeping. T. 173-74.

Fisher testified that in mid-1994, while at Albion, she received a tattoo on her right shoulder that says "Sexy." T. 203-04.

Fisher testified that she wants to be transferred to another correctional facility, regardless of its location.16 T. 154-55.

After observing Fisher's demeanor while testifying, and carefully listening to and considering her testimony, the Court finds that she is not a credible witness. Many of her answers to simple, straightforward questions were evasive and nonresponsive. Her testimony was also inconsistent at times. For example, she initially testified that she was planning to bring a lawsuit as early as 1994. Later, however, she testified that she did not plan to bring a lawsuit until April or May 1996.

Fisher's testimony about the alleged rapes was uncorroborated. Plaintiffs did not present any other witnesses to the alleged rapes.17 Nor did they offer any other physical evidence to support Fisher's testimony. Further, Fisher's testimony was contradicted in many important aspects by other witnesses, especially by Nieves, whom the Court found to be a credible witness.

In the Court's view, Fisher did not come across as someone who suffered a series of rapes. This view is based on a number of factors. First, Fisher's testimony regarding the rape allegations was very matter of fact and general in nature. Second, her descriptions of some of the sexual encounters, even if taken as true, could only reasonably be described as consensual. Third, at the same time Fisher was allegedly being sexually *151 abused by correction officers at Albion, she received a tattoo saying "Sexy." Fourth, only a month after an alleged rape by a correction officer, Fisher was writing love letters to another officer. This conduct—receiving the tattoo and writing the love letters—would appear to be inconsistent with someone who was being raped and sexually abused by correction officers.

Simply put, the Court finds Fisher's allegations of rape to be highly suspect and unsupported by the record currently before the Court. The evidence tends to show that this lawsuit is part of a "plan" by Fisher to make false allegations against correction officers in order either to obtain a transfer out of Albion to a facility closer to home, or to assist her somehow in obtaining parole.

B. Hearing Testimony of Dr. Charles Patrick Ewing18

Charles Patrick Ewing, Ph.D., was called as an expert witness by plaintiffs regarding Fisher's current mental state. Dr. Ewing is both a lawyer and a psychologist whose clinical practice consists primarily of doing evaluations of individuals who are involved in litigation and testifying as an expert witness. T. 316-17.

Dr. Ewing testified that, in preparation for his evaluation of Fisher, he "quickly" reviewed her medical records and proceeded to interview her. T. 320. Dr. Ewing only reviewed Fisher's medical records for the period of her incarceration and did not review any of Fisher's mental health records. T. 318-19. He interviewed Fisher on August 21, 1996, at Albion, for approximately three hours. T. 317, 320.

Dr. Ewing testified that he did a history and a mental status examination of Fisher. T. 320. He testified that Fisher related to him a history of being physically, sexually and psychologically abused as a child. T. 321, 325. She also related a history of having been a witness to many instances of domestic violence as she was growing up. T. 325. Fisher went on to relate the history of her relationship with a man that led to the difficulties that she had with the law and her criminal acts. T. 325. She then related a history of being raped, sexually abused and sexually harassed at Albion. T. 325. Fisher told Dr. Ewing that many of her problems at Albion stemmed from her notoriety. T. 326.

Dr. Ewing testified that Fisher appeared to him to be depressed. T. 328. Fisher indicated to him that she does, from time to time, think of suicide, but has no immediate plans to kill herself. Fisher told him that unless she was moved from her present situation, that being disciplinary confinement in SHU, she would eventually take her own life. T. 328. Dr. Ewing candidly admitted, however, that he was not an expert in the area of the effects of solitary confinement. T. 329-30.

Dr. Ewing testified that his diagnosis of Fisher's clinical condition, at the time he interviewed her, was that of major depressive disorder. T. 333-34. Dr. Ewing testified that Fisher told him that she feared remaining in solitary confinement and that she would lose her mind and ultimately take her own life if she remained there. T. 334. Dr. Ewing also testified, however, that Fisher did not express to him any specific fears related to the things that allegedly happened to her at Albion. T. 334-35.

The Court does not find the testimony of Dr. Ewing to be persuasive. His opinion that Fisher suffered from major depressive disorder appeared to be based almost exclusively on his interview with Fisher. Unlike defendants' expert, Dr. Ciccone, Dr. Ewing failed to examine any of Fisher's numerous mental health records, which date back several years. Further, although Dr. Ewing testified that Fisher's depressed mental state was related to her confinement in SHU, he admitted that he was not an expert in the mental health effects of solitary confinement. The Court does not question Dr. Ewing's qualifications and skills, but nevertheless finds his opinion in this case to be less than thorough, because it was based only on a "quick" review of her medical records and a *152 three-hour interview, and not on a full review of her entire mental health history.

C. Hearing Testimony of Roseann Fisher19

Plaintiff Roseann Fisher testified that she is the mother of plaintiff Amy Fisher. Mrs. Fisher lives in Merrick, New York, on Long Island. She testified that she first visited her daughter in Albion in December 1992. T. 389-90. She stated that in February 1993, she saw a television program showing footage of Fisher's living area at Albion. T. 390. The program also showed other inmates making threats against Fisher. T. 390. Mrs. Fisher said that she lodged a complaint about this incident through Fisher's attorney. T. 391, 393. She testified that she received a response from DOCS, stating that it was inappropriate to have allowed the television cameras into Fisher's living area, and that it would not happen again. T. 393.

Mrs. Fisher testified that in May 1993, she first met defendant Schwartz during a visit with Fisher at Albion. T. 393. She testified that she met Schwartz again in June 1993, when he invited himself to join them during a visit. T. 395.

Mrs. Fisher testified that, in the summer of 1993, Fisher told her for the first time that she had a sexual relationship with Schwartz. T. 494-95, 595. Fisher told her that when she first got to Albion, Schwartz befriended her and, eventually, the relationship progressed to the point where she had sex with him. T. 595. Mrs. Fisher testified that there came a point, however, when Fisher no longer wanted to continue the relationship. T. 596. Mrs. Fisher admitted that Fisher never used the word "raped" when describing her relationship with Schwartz. T. 596. Mrs. Fisher testified that Fisher told her that she was afraid of Schwartz because he had a bad temper, and that she felt trapped by Schwartz and could not get away from him. T. 597. Mrs. Fisher testified that she was furious when Fisher told her about her relationship with Schwartz. T. 598. She contacted her attorney and immediately formulated a "plan" to get Fisher out of Albion. T. 491-94, 521, 598-99. She did not, however, at least at this point, contact or complain to anyone at Albion or DOCS about Schwartz. T. 521, 598.

Mrs. Fisher testified that Fisher was transferred from Albion to Bedford Hills at the beginning of September 1993, and that a few days later, she, Mrs. Fisher, received a telephone call from Schwartz. T. 398, 423-24. Mrs. Fisher testified that she never asked Schwartz to call her and was "surprised," "shocked," and "taken completely off balance" by his call. T. 399. Mrs. Fisher stated that, during this telephone call, Schwartz introduced himself, explained who he was, asked how Fisher was doing at Bedford Hills, and told her that he cared a great deal about Fisher. T. 399. Despite being "taken completely off balance," Mrs. Fisher tried to tape record this call, but was unsuccessful. T. 424, 438-39, 525.

Mrs. Fisher testified that she continued to receive telephone calls from Schwartz from September 1993 until just before Fisher was transferred back to Albion from Bedford Hills in mid-November 1993. T. 400. She stated that there were approximately twenty-two calls in all. T. 400. Mrs. Fisher testified that all the calls were initiated by Schwartz and that he always called her from a pay phone. T. 400. Mrs. Fisher testified that, during this time, she discussed the telephone calls with her attorney and received direction, guidance and instructions from him. T. 490, 532, 613. He told her it was a good idea to keep Schwartz calling and to tape record his calls. T. 554, 613.

Mrs. Fisher testified that she tape recorded several, but not all, of the telephone calls she received from Schwartz. T. 399, 424, 439. She did not record approximately eight of the calls. T. 439. She could not recall the dates of the unrecorded calls. T. 439-40. The tape recorded telephone conversations were not offered by the plaintiffs at the hearing, but the Court directed that the tapes be produced.20 Twelve tapes consisting *153 of fourteen telephone calls were played in Court during the hearing. These tapes consisted of telephone calls from Schwartz to Mrs. Fisher on September 13, 17, 24 and 26: October 3, 6, 11, 12 or 13, 18, 22 and 26 and November 8, 9 and 11, 1993.21 Plaintiffs' Exhibits 15-26.

Plaintiffs' complaint characterizes the telephone calls from Schwartz to Mrs. Fisher as "harassing and foreboding" and as constituting "deliberate threats and intimidation." Complaint at ¶¶ 82, 283(a). The complaint also alleges that Schwartz told Mrs. Fisher that

Complaint at ¶ 83. The complaint further alleges that Schwartz communicated to Mrs. Fisher that she should not inform prison officials that he was contacting her or retaliation would be inflicted upon Fisher. Complaint at ¶ 85. At the hearing, Mrs. Fisher repeated these allegations about, and characterizations of, the Schwartz telephone calls. T. 552, 569, 576, 620, 623.

After carefully reviewing the tape recorded conversations, the Court finds that the plaintiffs' complaint and Mrs. Fisher's testimony totally mischaracterize the nature and content of the telephone calls from Schwartz to Mrs. Fisher. No reasonable person, after having listened to these tapes, could possibly characterize them as harassing, foreboding, intimidating, or threatening in nature. Indeed, rather than being intimidating or threatening, Schwartz sounds like a lovesick school boy, pining for his sweetheart and boasting to her mother about what a great guy he is. Although Schwartz' conduct in making the telephone calls to Mrs. Fisher was unquestionably inappropriate and in violation of the rules regarding correction officer contact with inmates and their families, T. 707, there is no indication that he made the calls for the purpose of threatening or intimidating the plaintiffs. Nor do these tapes in any way corroborate Fisher's claims that she was raped by Schwartz.

What the tapes do show is a devious, sordid and calculated "plan" by plaintiffs to set up Schwartz for the purpose of forcing a transfer of Fisher to a prison closer to home. Their scheme was to encourage Schwartz to call and to tape record his calls for use as leverage in gaining a transfer. In fact, the tapes themselves reveal, to some extent, plaintiffs' actual motivation. During one call, Mrs. Fisher, even though she knows she is being recorded, cannot help but complain about the distance she must travel in order to visit Fisher at Albion, and comment on how much easier it would be to make the much shorter trip to Bedford Hills to visit her. During another call, Mrs. Fisher states that she likes Bedford Hills better than Albion, because there are less "hassles" there. T. 608-11.22

On the tapes, Mrs. Fisher gives every indication of encouraging and welcoming Schwartz' calls. Throughout their conversations, Schwartz repeatedly asked Mrs. Fisher if his calls to her were bothering her and if she wanted him to stop. T. 553, 614, 618. She always said no and encouraged him to continue calling. T. 548, 602. She even told him at one point that she was "thrilled" that he called. T. 547-48. During the September 17th call, he asked her if it bothered her to talk about the parole board and she said, "no, I like hearing about this." T. 594. Later in *154 the same conversation, he asked her if she was sure he was not being a nuisance and she assured him he was not, asking that he "please call." During the October 22nd call, Mrs. Fisher stated to Schwartz that she thought it was a "good idea" that he was calling. Mrs. Fisher admitted that she lied to Schwartz to get him to keep calling. T. 578-79. For example, she told Schwartz that Fisher had asked about him when, in fact, she had not.

Mrs. Fisher also encouraged Schwartz to write to Fisher. For instance, during the September 17th call, she told him that he should write Fisher a letter, because Fisher was not satisfied with her mother carrying messages. Even after Schwartz sent Fisher a card, Mrs. Fisher continued telling him that Fisher wanted a personal letter from him.

Plaintiffs' complaint completely distorts the October 22nd call, which contains the conversation regarding the term "the burn." Rather than a foreboding or intimidating conversation calculated to intimidate Mrs. Fisher, the tape reveals that the conversation about "the burn" was initiated and invited by Mrs. Fisher. Schwartz' description of "the burn" was in response to Mrs. Fisher's questioning and her direction of the conversation. His description of "the burn" was not of correction officers fabricating complaints, but of them choosing not to ignore actual infractions. The tape of the October 22nd call clearly shows that certain statements allegedly made by Schwartz and purportedly quoted in the complaint, for example "living hell," were actually made by Mrs. Fisher.23 T. 566-67, 569. The tape also shows that Schwartz' reference to "pain," quoted in the complaint, was with regard to male inmates at Attica and was not directed at Fisher or the other female inmates at Albion.

Another example of the distortion contained in plaintiffs' complaint is the allegation that Schwartz referred to Fisher by demeaning names such as "gerbil." Complaint at ¶ 81. During the October 3rd call, Schwartz explained to Mrs. Fisher that "gerbil" was a term of affection that he used for Fisher because she had wanted a pet gerbil while she was at Albion. Clearly, Schwartz was not using the term "gerbil" in a demeaning way and Mrs. Fisher knew or should have known that at the time she filed her complaint.

Schwartz repeated several times during the telephone conversations that he never had any physical or sexual involvement with Fisher. During one conversation, he stated, "the most we've ever done is shake hands." During another conversation about media reports that Fisher was pregnant, Schwartz stated that if the media was blaming him for impregnating Fisher, it would be "an immaculate conception."24 Although Schwartz did ask Mrs. Fisher on several occasions to tell Fisher that he loved her and to give her his love, there is no admission or indication on the tapes that he had a sexual relationship with Fisher.

In sum, it is clear from Mrs. Fisher's testimony, the instructions she received from her attorney, and the tenor of her conversations with Schwartz, that she was trying to set up Schwartz in order to further her "plan" to have Fisher transferred to a closer facility. Ironically, during one telephone call, Mrs. Fisher stated that "betrayal is a hurtful thing," to which Schwartz replied, "I won't betray her, I'm as loyal as a puppy."

Mrs. Fisher testified that the calls from Schwartz stopped after Fisher returned to Albion on or about November 15, 1993. T. 484. Mrs. Fisher testified that she and her attorney met with DOCS IG Brian Malone in *155 January 1994, at her attorney's office. T. 484-88. At the meeting, Mrs. Fisher complained to Malone about Schwartz' relationship with her daughter and the telephone calls from Schwartz. T. 486, 502-04. She told Malone that Fisher and Schwartz had a "sexual relationship as well as a coercive relationship" and that Fisher no longer wanted Schwartz to be around her. T. 488. Mrs. Fisher told Malone that she wanted Fisher transferred out of Albion in order to "break up the relationship." T. 487-88.

Mrs. Fisher brought with her to the meeting with Malone the tape recordings of her telephone conversations with Schwartz. T. 503. Malone asked Mrs. Fisher to give him the originals of all the tapes, but Mrs. Fisher refused because Malone would not give her adequate assurances that Fisher would be safe from retaliation. T. 504-06, 544.

In November 1995, Mrs. Fisher called Albion complaining that Fisher had been kicked by defendant Shimley. T. 508. According to Mrs. Fisher, Fisher was subsequently interviewed by a person from the IG's office. T. 508. Mrs. Fisher testified that, in January 1996, she called IG Malone about the Shimley incident. Mrs. Fisher continued to maintain contact with Malone throughout the Spring of 1996. T. 513. Her last call to Malone was in April 1996. T. 514.

After observing Mrs. Fisher's demeanor while testifying, and carefully listening to and considering her testimony, the Court finds that she is not a credible witness. Her answers to questions, especially on cross-examination, were evasive and nonresponsive, sometimes to the point of refusing to answer the question at all. T. 577. On numerous occasions it appeared that Mrs. Fisher feigned being unable to understand simple, straightforward questions put to her by defense counsel. T. 556-57, 562-63, 577, 657-58. She had no such trouble understanding similar questions put to her by her own attorneys.

The tape recorded conversations between Mrs. Fisher and Schwartz show that Mrs. Fisher can be a devious, cunning and calculating person, who has the ability to lie convincingly, even under difficult and pressured circumstances. Her lack of credibility is also reflected by her complaint in this case. As discussed above, several statements of purported fact included in the complaint by Mrs. Fisher are not supported by the evidence adduced at the hearing. For example, her description of Schwartz' calls as "harassing and foreboding" is spurious. In fact, her mischaracterization of the content and nature of these telephone calls is so blatant that it clearly must have been intentional.

The Court finds that Mrs. Fisher's true motivation in this case is to have her daughter transferred out of Albion to a prison closer to their home because it will be more convenient and may perhaps hasten her daughter's parole. To accomplish this goal, she, her daughter and their attorney concocted a "plan" to set up Schwartz by asking him to call Mrs. Fisher and then recording his conversations with her.

D. Hearing Testimony of Robert Schwartz

Plaintiffs called defendant Robert Schwartz, who testified that he has been a correction officer for DOCS for fifteen years and a sergeant since 1988. T. 706-07. Schwartz testified that he first met Fisher six or seven weeks after she arrived at Albion. T. 682. He stated that, when Fisher arrived at Albion, she was viewed as a "novelty" by some of the inmates and a "freak" by others. T. 683.

Schwartz testified that he never had sex with Fisher. T. 703. He stated that he thought of himself as "more of a father figure" to Fisher and that she came to him for advice. T. 706. He denied that he ever felt "in love" with Fisher or that he was infatuated with her. T. 693, 701. Schwartz testified that he was never alone with Fisher while she was at Albion, i.e., where he could not be seen by others in the prison. T. 687, 1209-10.

Schwartz admitted that he made telephone calls to Mrs. Fisher during the time Fisher was being held in Bedford Hills in 1993. The day before Fisher was transferred to Bedford Hills, she asked him to telephone her mother. T. 1 208-09. Schwartz admitted that he improperly obtained Mrs. Fisher's *156 telephone number from the DOCS computer. T. 1 206-08. Schwartz viewed his telephone calls to Mrs. Fisher as "two adults having a conversation about a child." T. 692. When he was talking to Mrs. Fisher, he asked for a photograph of Fisher because Fisher told him that she wanted him to have one. T. 701-02. Schwartz testified that, during the time in question, he was drinking too much and was on prescription drugs. T. 702. He always called from a pay phone because he did not want his family or DOCS to find out that he was calling. T. 703. Schwartz also admitted that he wrote a letter to Fisher while she was at Bedford Hills and that such conduct was "dead wrong." T. 694-95, 707.

Schwartz testified that there came a time while Fisher was at Bedford Hills that he became aware of allegations that she was pregnant. T. 687. He read these allegations in the local newspaper. T. 687. Schwartz testified that a tabloid newspaper called Albion and mentioned that he was suspected of impregnating Fisher. T. 687-89. Schwartz then called Mrs. Fisher in order to try to assure her that he had not had a sexual relationship with Fisher. T. 689-90.

During his testimony, Schwartz defined the term "the burn" as follows:

T. 696-97.

Schwartz testified that, in January 1994, he was questioned by IG Malone and another IG investigator about his relationship with Fisher. T. 678-79. Schwartz admitted to Malone that he had written a letter to Fisher and that he had called Mrs. Fisher. T. 707-08. As a result, he was transferred out of Albion. T. 707. Schwartz testified that he again spoke with IG Malone and several other investigators at the IG office in Albany, at the end of March, or in April 1994, about Fisher. T. 675. He was questioned under oath about his relationship with Fisher and his telephone conversations with her mother. T. 675-76.

After observing Schwartz' demeanor while testifying, and carefully listening to and considering his testimony, the Court finds that, for the most part, he is a credible witness. His testimony appeared to be consistent with statements he made on the tapes of his telephone calls to Mrs. Fisher, especially his description of the term "the bunt" Schwartz admitted that his conduct was inappropriate, but consistently denied that he had any sexual relations with Fisher. The part of his testimony that the Court finds suspect is his denial that he was infatuated or in love with Fisher. The tapes tend to show that he was, at least, infatuated with Fisher.

III. Defendants' Witnesses

A. Hearing Testimony of Lillian "Lucky" Nieves25

At the time of the hearing, Lillian "Lucky" Nieves was an inmate at Albion. T. 779. She was confined at Albion as a result of a felony drug conviction in the State of New York. T. 779,81 8-1 9. Nieves testified that she has two felony convictions. T. 816.

Nieves testified that she first met Fisher in 1994 when they were housed in the same housing block at Albion. T. 780-81. At that time, Nieves was at Albion on a parole violation. *157 T. 780. Nieves testified that, in 1994, she associated and spoke with Fisher, but they did not confide in each other. T. 781.

Nieves testified that she returned to Albion in 1995 after a new conviction. T. 781. At that time, she was housed in a cubicle directly across from Fisher and they became "very, very close." T. 781. She stated that she and Fisher "shared everything. Our clothing, our footwear, food, everything." T. 781. Nieves testified that Fisher was like her "little sister." T. 782, 846. Nieves testified that Fisher had a difficult time with other inmates and that she sometimes had to protect Fisher from being beaten up by the other inmates. T. 782-83, 846.

Nieves described Fisher as "very flirtatious" and "conniving." T. 790. She stated that Fisher "has her way of getting around people regardless of what sex they are, man or woman." T. 790. Nieves also described Fisher as "very theatrical ... she dramatized everything." T. 803. At one point, Nieves testified that Fisher is "supposed to become a movie star, this is her debut right here, you're going to see this in the movies." T. 859. Nieves also implied that Fisher is promiscuous. She stated that Fisher "has sex with everything that moves." T. 845. She also stated, with regard to Fisher, that "[y]ou can't rape the willing." T. 828. Nieves testified that Fisher's inmate "lover" in Albion was a woman nicknamed "Sexy."26 T. 905.

Nieves testified that she and Fisher knew everything about each other and that the dominant topic of their conversations was getting out of Albion. T. 783. Nieves testified that Fisher's "biggest worry" was going before the parole board at Albion. T. 783. She stated that Fisher felt that there was more of a chance of being denied parole at Albion than there would be at another prison. T. 783.

Nieves testified that Fisher came up with a "plan" for getting out of Albion in order to avoid the Albion parole board. T. 784-85, 859. Nieves testified that she discussed the "plan" with Fisher in January 1996. T. 785-86. Fisher told her that, about a year earlier, she had sex with a correction officer, defendant Kuttner, and was able to get his semen on her underwear. T. 786. Fisher never told or indicated to Nieves that Kuttner raped her. T. 789, 868. Fisher told her that she smuggled the underwear out of Albion through a visitor and had it sent to a laboratory for DNA testing. T. 785-86. Fisher hoped that, when the underwear came back testing positive for semen, she would be given an administrative move. T. 785-87. However, Fisher became impatient because the "plan" wastaking too long. T. 786-87. Fisher told Nieves that she needed to obtain additional semen from another correction officer so that she could claim that she was raped. T. 787. Fisher told Nieves that she needed another "vie" or victim. T. 787-88. In other words, she was going to have sex with another correction officer in order to obtain more semen. T. 788. Fisher identified defendant Thomas as a possible "victim." T. 789. Nieves testified that she did not think Fisher would target Sergeant Bailey because she was "intrigued" and "infatuated" with him. T. 789, 888.

Nieves testified that, on April 8, 1996, Fisher accompanied her to the library. T. 791. On the way, Fisher told Nieves that defendant Schmidt was on duty at the library and that he was going to be her "victim," the one from whom she would obtain the semen. T. 791. Nieves objected to Fisher's plan, because, in her view, Schmidt was "disgusting." T. 792. Fisher explained to her that she had to do it because she was losing her mind, and did not want to go before the parole board at Albion. T. 792.

Nieves testified that when they entered the library, Fisher went over and sat on Schmidt's desk and conversed with Schmidt the entire time they were in the library-about a half hour. T. 793-96. On their way back to the housing area from the library, Fisher told Nieves that she was going to return to the library that evening when everybody was gone in order to obtain semen from Schmidt. T. 796.

*158 Nieves testified that she saw Fisher again at approximately 9:00 p.m. that evening and Fisher was "heated, angry." T. 798. Fisher told her that she had returned to the library and had sexual relations with Schmidt, but failed to obtain any semen from him. T. 798. Fisher further told her, however, that despite her failure to obtain semen, she would go ahead with her "plan" and claim that she was raped by Schmidt. T. 798. Nieves testified that she told Fisher that she did not want to become involved in her "plan," and when she refused to assist Fisher, Fisher falsely reported to correction officers that Nieves had stolen some of her personal belongings. T. 826-27. See Defendants' Exhibit 36 (Inmate Claim Form from Fisher, dated July 9, 1996). Nieves admitted that she felt animosity toward Fisher as a result of Fisher's false accusations against her. T. 897.

Nieves discussed several other instances of Fisher making false accusations against other inmates. T. 800-03. Nieves testified that Fisher admitted to her that she had planted contraband on other inmates. T. 902-03.

Nieves testified that she is a heroin addict and that, in the summer of 1996, she received a Tier III disciplinary ticket for testing positive for drugs. T. 820-21. Nieves testified that she received 90 days "in lock" as a result of that violation, but did not serve the entire time because she informed on another inmate (not Fisher). T. 823-25. Nieves testified that she was promised nothing in exchange for her testimony at the preliminary injunction hearing.27 T. 807.

After observing Nieves' demeanor while testifying, and carefully listening to and considering her testimony, the Court finds that she is a credible witness. Despite her criminal history, her drug addiction and her admitted animosity toward Fisher, the Court finds that Nieves answered questions truthfully and that her testimony was corroborated by other evidence, including the testimony of Fisher herself. Fisher admitted that Nieves was a close friend and that she had confided in her. She also admitted that Nieves accompanied her to the library on April 8, 1996, the date she was allegedly raped by Schmidt.

For the most part, Nieves' testimony was both internally consistent and consistent with other evidence adduced at the hearing. While there may have been present some motive for Nieves to lie, the Court does not believe that she did so. Nieves' description of Fisher as "flirtatious," "conniving," "theatrical," and promiscuous is consistent with her description of Fisher's "plan" to be transferred from Albion. Simply put, the Court finds Nieves to be a believable witness and credits her version of events.

B. Hearing Testimony of Dr. John Patrick Fernandez28

Dr. John Patrick Fernandez testified that he has been the Health Services Director at Albion for approximately 25 years. T. 907. As the Health Services Director, Dr. Fernandez delivers direct patient care and acts as supervisor and administrator for the remainder of the Health Services Department at Albion. T. 907.

Dr. Fernandez testified about the procedures used at Albion for inmates to receive medical care. T. 908-09. In particular, he testified about the health services provided to inmates confined in SHU or protective custody at Albion. T. 909. In SHU, a nurse makes rounds every day and checks each inmate and, once a week, a physician makes rounds as well. T. 909-10.

Dr. Fernandez described Fisher's current medical condition as good. T. 908. He testified *159 that Fisher's medical records did not reflect any weight loss, and that the last time her weight was taken, it was exactly the same, 100 pounds, as when she entered the facility in 1992. T. 913-14. Dr. Fernandez testified that Fisher has refused to be weighed since August 1996. T. 924.

Dr. Fernandez testified that Fisher never reported any rape to the Medical Services Department. T. 913. Dr. Fernandez testified that one of his nurses did happen to see a program on television about Fisher's allegations of rape, and, in response, the Medical Services Department ordered Fisher to be seen by a gynecologist to determine whether anything should be done. T. 922. Dr. Fernandez testified that a routine examination of Fisher was done to determine whether she had contracted any sexually transmitted diseases, but no other recommendations were forthcoming from the gynecologist because of the remoteness of the event. T. 923. Dr. Fernandez testified that the medical department did not offer any rape counseling to Fisher. T. 923.

C. Hearing Testimony of Captain John M. Sherlock

Captain John M. Sherlock testified that he has been employed by DOCS for over 21 years and is currently assigned to Albion. T. 932-33. Sherlock testified twice at the hearing on two consecutive days, October 22 and 23, 1996.

Sherlock testified that, after Fisher filed her lawsuit, prison authorities at Albion took several steps to ensure her safety. T. 942-43. First, Fisher was placed in IPC in SHU.29 Second, the Superintendent of Albion issued a "no entry" order prohibiting the defendant correction officers in this case from entering SHU. Third, the Superintendent required a daily memorandum on Fisher's activities. T. 950-51. The memoranda detail Fisher's activities for each specific day in chronological order.

Sherlock explained that SHU is a group of cells designated by the facility Superintendent and approved by DOCS to house special categories of inmates, including inmates in disciplinary confinement, inmates who have requested PC, inmates who have been ordered into IPC, and administratively segregated inmates. T. 934. Sherlock further explained that IPC is ordered when prison security authorities feel that an inmate will be in danger in the general population, but the inmate herself refuses to go into PC. T. 935. Once an inmate is placed in IPC, the inmate's status is reviewed every 30 days by a three-member committee composed of an executive team member, a counselor and a security supervisor. T. 971. Before the inmate is released from IPC, the three member committee has to satisfy itself that placing the inmate into the general population will not place her in jeopardy above and beyond the norm associated with that environment. T. 972.

On August 26, 1996. Superintendent Andrews told Sherlock to "get up to speed on Inmate Fisher." T. 1025. He understood this to mean that he should read all the material that was available to him regarding Fisher so he could make a recommendation to Andrews regarding Fisher's security status. T. 1020-25. Andrews provided Sherlock with a copy of an affidavit of Lillian Nieves in this case and a copy of the Times article. T. 969.1020-25. See Item No. 9, Exhibit 4. After reviewing these materials, Sherlock recommended that Fisher be placed in IPC, because he was concerned about her safety in the general population. T. 969, 1019, 1026, 1028, 1031. In particular, Sherlock was concerned about allegations by inmate Nieves in her affidavit to the effect that Fisher had "set up" other inmates. T. 1019. Sherlock explained that such accusations could have a "very negative effect on an inmate's position in general population," and create a potential danger for the inmate. T. 1019, 1031. Sherlock was also concerned about two statements attributable to Fisher that appeared in the Times article. The first statement was to the effect that Fisher suffers from a so-called "pin cushion" or target effect in the general population due to her *160 notoriety. T. 1027, 1053. The second statement was a derogatory comment by Fisher about an inmate at Bedford Hills. T. 1027, 1053. Sherlock testified that these three points—Nieves' allegations that Fisher set up other inmates and the two statements in the New York Times article—together formed the basis of his IPC recommendation. T. 1027. Sherlock's IPC recommendation was reviewed and upheld by the IPC hearing officer. T. 968.

Sherlock testified that, whether the statements in Nieves' affidavit and the Times article were true was irrelevant; what was relevant was the inmate population's perception of Fisher. T. 1037-38. If the inmate population felt that the statements by, or about, Fisher were true, such statements could cause retaliation against Fisher and endanger her safety, regardless of whether the statements were in fact true.30 T. 1038.

Sherlock testified that, while Fisher was in disciplinary confinement in SHU, prior to being placed in IPC, Superintendent Andrews ordered that Fisher should recreate alone. T. 1061. See Plaintiffs' Exhibit 3 (memorandum from Superintendent Andrews to Fisher, dated August 5, 1996, stating, "in response to your published allegations of physical retaliation, it is deemed prudent that your physical contacts be limited to accommodate your perception of your increased need to insure your safety."). While in IPC, however, Fisher was allowed three hours of recreation a day and was allowed to co-mingle and recreate with other IPC and PC inmates. T. 969. Sherlock testified that he had seen Fisher recreate with other inmates while she was in IPC. T. 970. At one point, only Fisher and another inmate named Figueroa were in either IPC or PC status, but Fisher refused to recreate with Figueroa. T. 970. Fisher wrote a letter to the Deputy Superintendent asking to recreate separately from Figueroa and that request was granted. T. 970. Sherlock testified that while Fisher was in SHU, her telephone conversations were tape recorded in order to determine whether she felt that she was in danger from other inmates. T. 1089-91. Sherlock indicated that it was not unusual for prison officials to tape record inmate telephone calls for investigative purposes. T. 1089-91.

Sherlock testified that he continued to research the issue of Fisher's safety over the following 30-day review period and that the Deputy Superintendent of Security at Albion, Donald Wolfe, interviewed several people regarding the issue. T. 1031. After the initial review period, Sherlock determined that there was nothing precluding Fisher from returning to the general population upon the next review. T. 973, 1031-32. He explained that inmate Nieves had been transferred to Taconic immediately following her testimony at the hearing so that: (1) Fisher could reenter the general population; and (2) Nieves could attend a drug rehabilitation program at Taconic. T. 973. Sherlock explained that Fisher could not be released from IPC to the general population prior to Nieves' transfer because they were placed on a separation list as a result of a formal request, approved by DOCS, to separate the two inmates. T. 973-74. Once Nieves was transferred, Fisher could reenter the general population. T. 974. Sherlock testified that all transfer requests go through the guidance and counseling part of the facility. Thus, he was unaware of who made the decision or when the decision was made to transfer Nieves. T. 977-78.

Sherlock testified that he had no information that Fisher was in any danger of retaliation from correction officers as a result of her allegations against the defendants in this action. T. 111 8. He also testified that he had no information that Fisher was presently at risk from any staff personnel or other inmates. T. 1099.

Sherlock testified that he knew of no evidence of any sexual abuse of Fisher by correction officers. T. 1086. Sherlock testified that if an inmate's complaint about a correction officer or another inmate is corroborated *161 by an initial investigation, then the facility will do a further investigation. Sherlock further stated, however, that if the accusation is a rape, corroboration is unlikely unless a report of the rape is made close in time to the event. T. 1093. Sherlock explained that, before ordering an inmate transferred based on allegations against a correction officer, those allegations must be substantiated through investigation. Otherwise, inmates would be able to manipulate the system simply by making unsubstantiated, uncorroborated claims of abuse. T. 1085-86.

During the first day of his testimony, Sherlock stated that Fisher was going to be released from IPC into the general population, and that she was going to be treated just like any other inmate at Albion. T. 991. He testified that there were going to be no special arrangements made to prevent her from having contact with the defendant correction officers in this case and that she could potentially be required to commingle with them. T. 991-92. When Sherlock was recalled to testify the next day, however, he stated that, after consultation with Superintendent Andrews and Deputy Superintendent of Security Wolfe following his testimony the previous day, a special policy would be implemented to limit Fisher's contacts with the defendant correction officers. T. 1288. Sherlock testified that the following measures would be taken upon Fisher's release from IPC: (1) a supervisor of a higher rank would be present if it were necessary for a defendant to come in contact with Fisher; (2) Fisher would be housed in one of the housing blocks where none of the defendants work; and (3) Fisher would be assigned to a job on the grounds crew, which promotes high visibility to both staff and inmates. T. 1289-90.

D. Hearing Testimony of Michael Urban

Michael Urban testified that he is employed by DOCS as an assistant IG and is in charge of the central monitoring unit. In that capacity, he and his staff monitor all high profile inmates within DOCS. T. 1127. Urban testified that he also acts as a liaison for outside law enforcement agencies and does intelligence work within DOCS. T. 1127.

Urban testified that an inmate is classified as a central monitoring case ("CMC") based on a number of criteria, which may include high publicity, high notoriety, the nature of the instant offense, or any other circumstance that would require that the inmate be given special attention or monitoring by DOCS. T. 1127-28. He further testified that CMC's are broken down into two categories, A and B. T. 1128. Fisher was designated as a CMC A. T. 1128. Urban testified that, because Fisher is a CMC A, he must give approval for any transfer or movement of Fisher external to the facility. T. 1128-29. For example, if Fisher is to be transferred to another correctional facility, or from Albion to the courthouse for a hearing, Urban must be notified and must approve the move. T. 1129.

Urban testified that Fisher's current security status is medium security. T. 1130. There are three medium security female correctional facilities in the DOCS system, Albion, Taconic and Bayview Correctional Facility ("Bayview").31 T. 1130. Urban testified that there are a number of considerations taken into account when deciding whether to transfer an inmate, including the programs available at the different facilities, the psychological history of the inmate and the location of the inmate's home. T. 1168-69. Urban testified that DOCS tries to house inmates as close as possible to their homes, but that it is not always possible because a majority of the inmates come from the New York City area. T. 1169.

Urban testified that another consideration he must take into account when deciding whether to approve a transfer of a prisoner is whether that prisoner has any "enemies" in the other facility. T. 1130. Urban testified that "separatee data" or a so-called "enemy list" is data compiled by DOCS regarding any "enemies" an inmate might have that would prohibit those inmates from being *162 housed together in the same facility. T. 1129-30. Urban defined the term "enemy" as follows:

T. 1139. Urban testified that an inmate may request that another inmate be placed on her enemy list. T. 1147. Urban stated that the inmate fills out a form telling her counselor why she wants the enemy placed on the list and must provide valid reasons. T. 1147. The counselor investigates whether the reasons are valid and submits the request for separation to Urban's office. T. 1147. Urban's office may ask more specific questions regarding the validity of the request. T. 1148. Urban explained that an inmate's claim that another inmate is an enemy must be verified before the other inmate is put on an enemy list because,

T. 1159-60. Urban testified that DOCS, itself, may place an inmate on another inmate's enemy list if there is some objective reason for doing so, such as the inmates having had a fight while in the facility. T. 1147.

Urban testified that, on August 26, 1996, a request was made to place Lillian Nieves on Fisher's enemy list, and that Nieves was added to the list on September 19, 1996.32 T. 1161-62. Urban testified that, around that same time, a counselor at Albion recommended that Fisher be transferred. T. 1181. When Urban saw the transfer recommendation, he reviewed Fisher's enemy list and determined that she could not be moved to any of the other medium security facilities because she had enemies in each of those facilities. T. 1130, 1182. Further, she could not be transferred to Bedford Hills, a maximum security facility, because she had enemies there also. T. 1130-31.

Urban testified that he was aware that Fisher had made allegations that she was sexually assaulted by some of the staff at Albion, but that those allegations, in and of themselves, were not sufficient to cause her to be transferred. T. 1131. Urban explained that:

T. 1131.

Urban testified that the IG's office is currently conducting an investigation of Fisher's allegations of rape and sexual abuse by correction officers. T. 1132. He further testified, however, that a prior investigation regarding defendant Schwartz was closed because Mrs. Fisher was uncooperative and refused to provide IG Malone with evidence that she allegedly had in her possession. T. 1132-34, 1192-93.

E. Hearing Testimony of Dr. J. Richard Ciccone33

Dr. J. Richard Ciccone, a physician and professor of psychiatry at the University of Rochester School of Medicine, examined Fisher at the request of the defendants. Dr. *163 Ciccone has a very impressive educational and professional background. T. 1214-18.

Dr. Ciccone testified that the purpose of his examination of Fisher was to determine if she suffered from any major psychiatric disorders and if so, to determine whether such disorders were caused by her confinement in SHU at Albion. T. 1219-20. His examination consisted of a four-hour interview of Fisher on October 1, 1996, and a review of numerous materials provided to him by the defendant prison officials, including Fisher's medical and mental health records from both before and during her incarceration. T. 1220-36. Dr. Ciccone also reviewed the notes and report of Dr. Ewing, and transcripts of earlier portions of the hearing, including Dr. Ewing's testimony. T. 1222.

Dr. Ciccone testified that after conducting his examination of Fisher, it is his opinion, within a reasonable degree of medical certainty, that during the summer of 1996, Fisher had an adjustment disorder with depressed mood and anxiety resulting from her isolation in disciplinary confinement in SHU at Albion, i.e., isolation was the stressor for the adjustment disorder. T. 1222-23. At the time he interviewed Fisher, her disorder was in remission. T. 1222, 1236. He further noted that Fisher had some character or personality style issues that did not, in his opinion, rise to a personality diagnosis, but indicated that there were some histrionic and antisocial features in her history. T. 1222.

Dr. Ciccone testified that Fisher told him that her father was physically and sexually abusive toward her and that the parental relationship was troubled. T. 1223. Fisher told him that she had tried running away from home on several occasions when she was younger. T. 1224. Dr. Ciccone testified that Fisher's medical records indicate that she was evaluated in March 1991, and was found to be a difficult and defiant individual. T. 1225. They further indicate that she had "adjustment disorder with mixed disturbance of emotions and conduct, ... depression, anxiety, and run away behavior and defiant." T. 1225. On or about September 25, 1991, Fisher attempted to commit suicide by ingesting pills. When Fisher was evaluated for purposes of her state court proceedings, she was found to be suffering from a variety of conditions, including an adjustment disorder with mixed disturbance of emotions and conduct, a post-traumatic stress disorder with delayed onset, and a borderline personality disorder. T. 1226.

Fisher told Dr. Ciccone that when she first arrived at Albion she ate well and gained weight, reaching a maximum weight of approximately 115 pounds. T. 1227. Dr. Ciccone testified, however, that he found no documentation for that fact. T. 1227. Fisher also told him that she began smoking in 1994 and since the end of 1994, had steadily been losing weight. At the time of the interview, she weighed approximately 105 pounds, which is approximately what she weighed when she first entered the facility. T. 1227.

Fisher told Dr. Ciccone that while she was in the SHU, she was tearful and had difficulty sleeping. T. 1 227. She explained that her difficulty sleeping was due, in part, to the uncomfortable bed on which she had to sleep. T. 1227. Fisher also reported that while in SHU, she had difficulty concentrating and reading because her mind kept wandering. T. 1227. Fisher complained that while in disciplinary confinement, she lacked human interaction. T. 1227-28. She further reported, however, that since being transferred from disciplinary confinement to IPC, she "felt more human." T. 1228.

Dr. Ciccone testified that, during his interview of Fisher, she told him several times that being closer to home was not the issue. T. 1228-29. These statements were unsolicited by Dr. Ciccone. T. 1228-29. Dr. Ciccone interpreted these statements to mean that Fisher was assuring him that her difficulties were with disciplinary confinement and did not stem from wanting to be closer to home. T. 1229.

Dr. Ciccone testified that at the time he interviewed Fisher, she no longer appeared to be suffering from an adjustment disorder. T. 1229. He testified that Fisher's adjustment disorder appeared to have gone into remission due to: (1) the change in environment from disciplinary confinement to IPC; (2) the additional human contact that she had as a result of these court proceedings: (3) *164 the return of her personal property; (4) the move to another cell that was a little larger and had a separate bathroom area: and (5) the ability to talk with other Urinates across the hall in SHU. T. 1229, 1237, 1271.

Dr. Ciccone testified that he performed a mental status examination of Fisher and saw no signs or symptoms of any mental illness. T. 1233-34, 1236. Nor did he detect any suicidal ideation. T. 1282. Dr. Ciccone testified that he found Fisher's mental state to be consistent with other inmates he had examined under similar circumstances. T. 1241. While Fisher was displeased with her situation, she did not exhibit any type of psychiatric disorder. T. 1241. Dr. Ciccone testified that he believed Fisher's attitude and depression would improve rapidly once she was let back into the general population and was able to interact with other people. T. 1232, 1246. Fisher indicated to Dr. Ciccone that she wanted to return to the general population. T. 1281. Dr. Ciccone testified that, according to Fisher's medical records, Fisher was offered the opportunity for psychotherapy while at Albion, but declined. T. 1269.

Dr. Ciccone testified that, during his interview of Fisher, she never brought up her allegations that she was raped by correction officers. T. 1262. He testified that he did not detect that Fisher had any sense of fearfulness toward the correction officer defendants, nor did she tell him that she was afraid. T. 1242-43. Dr. Ciccone testified that whether Fisher was in Albion or some other correctional facility would not affect her mental state. T. 1243.

Dr. Ciccone testified that he disagreed with some of Dr. Ewing's conclusions regarding the severity of Fisher's depression and the immediacy of the danger. T. 1241. Dr. Ciccone did not find as severe an illness or immediate danger. He did state, however, that if Fisher were to remain in isolation over a longer period of time that she could begin to become more anxious and depressed, and develop an adjustment disorder that could emerge eventually into a major depression. T. 1241-42.

Dr. Ciccone testified that if a woman were raped and could not avoid the man that raped her, such a circumstance would be a "terrible stressor." T. 1265-66. Dr. Ciccone also testified that forcing a woman to return to the scene of a rape could also be a stressor. T. 1268. Dr. Ciccone testified that these kinds of stressors could cause psychiatric disorders or recurrence of psychiatric disorders in remission. T. 1268.

The Court finds that Dr. Ciccone was a credible and persuasive witness. Unlike Dr. Ewing, Dr. Ciccone reviewed Fisher's prior mental health records as part of his examination. Thus, he had a more thorough understanding of Fisher's psychiatric history and his opinion was, therefore, more informed than that of Dr. Ewing.

IV. Affidavits

A. Affirmation of Donald Wolfe Filed August 22, 1996

On August 22, 1996, defendants filed an affirmation of Donald Wolfe, Deputy Superintendent for Security at Albion. Item No. 16. In his affirmation, Wolfe stated that, at that time, Fisher was serving a penalty of 60-days' disciplinary confinement in the SHU as a result of an incident that took place on May 2, 1996. Wolfe denied that Fisher's confinement in SHU differed in any way from any of the other inmates confined in SHU at Albion, and that her confinement was consistent with DOCS regulations that apply not only in Albion, but in every facility maintained by DOCS. Wolfe stated that as part of her disciplinary penalty, Fisher lost 60-days' telephone privileges. She did not, however, lose any mail privileges or privileges with respect to legal calls. In addition, Fisher was still able to receive both legal and non-legal visitors. Wolfe further stated that he had taken steps to ensure that none of the correction officers named as defendants in this action had any contact with Fisher. Wolfe stated that, as a further attempt to ensure Fisher's safety, Albion required that the security staff submit daily reports concerning Fisher's condition and activities.

B. Affidavit of Chester H. Clark Filed August 22, 1996

On August 22, 1996, defendants filed an affidavit of Chester H. Clark, Assistant Commissioner *165 of Population Management for DOCS. Item No. 15. In his affidavit, Clark stated that, although Article 5-A of the New York Correction Law, titled "Interstate Corrections Compact," gives the State the authority to transfer inmates committed to its custody to another state's correctional system, DOCS has never effectuated a single interstate transfer of a New York inmate to another state's correctional system, despite hundreds of inmates having requested to be transferred pursuant to the statute. Clark stated that an interstate transfer would only be approved under extraordinary circumstances. This is due to the cost and safety concerns associated with such a transfer. Similarly, Clark stated that transfers of New York inmates into the custody of FBP have been rare. At present, there are only three New York inmates who have been transferred to FBP following a request initiated by DOCS. Clark stated that there are two reasons for DOCS to transfer an inmate to FBP: (1) the inmate poses a potential danger due to his or her relationship with a highly organized criminal element or gang within the community or within the prison system; or (2) when there is a danger to the inmate posed by other inmates because the inmate cooperated with a major criminal investigation. Clark pointed out that FBP must agree to accept the DOCS inmate, and that, if FBP does agree, it has sole discretion to decide what specific institution it will use to house the inmate.

C. Supplemental Affidavit of Donald Wolfe Filed September 13, 1996

On September 13, 1996, defendants filed a supplemental affidavit of Donald Wolfe, Deputy Superintendent of Security at Albion. Item No. 45. In his affidavit, Wolfe stated that: (1) defendant Kuttner no longer works at Albion and has left DOCS employment; (2) defendant Hemley no longer works at Albion and was assigned to another DOCS facility on June 6, 1994; (3) defendant Schwartz no longer works at Albion and was assigned to another DOCS facility on June 9, 1994; (4) each of the remaining individual defendant correction officers in this action was restricted from working in areas of the prison where he would have contact with Fisher; and (5) each of the individual defendant correction officers was restricted from entering SHU, where Fisher was being housed.

D. Affidavits of Defendants DiSalvo, Galbreath and Hemley

On September 13, 1996, defendant Gary DiSalvo filed an affidavit on his own behalf. Item No. 44. He stated that: (1) he never had any sexual contact with Fisher at any time; (2) he never made sexual advances toward Fisher at any time; (3) he never had sexual intercourse with Fisher at any time; and (4) Fisher's allegations that he had forcible sexual intercourse with her and that he threatened her are false.

On September 16, 1996, defendant Michael Galbreath filed an affidavit on his own behalf. Item No. 51. He stated that: (1) contrary to Fisher's allegations, he never assaulted, sexually harassed or physically abused her: (2) he never made any sexual advances toward Fisher; (3) he never filed any false or unfounded disciplinary reports against Fisher; (4) he never witnessed or had any knowledge of any sexual advances or inappropriate behavior by defendant Stiles toward Fisher; and (5) all the allegations by plaintiffs against him are untrue.

On October 23, 1996, defendant Frederick Hemley filed an affidavit on his own behalf. Item No. 94. He stated that: (1) he is now a correction officer at Cayuga Correction Facility; (2) contrary to Fisher's allegations, he never raped, sodomized, sexually abused, harassed or used any force upon Fisher; and (3) Fisher's allegations about him are untrue.

E. Affidavit of Donald Wolfe Filed November 8, 1996

On November 8, 1996, following the preliminary injunction hearing, defendants submitted an affidavit of Donald Wolfe, Deputy Superintendent for Security at Albion. Item No. 98. Wolfe stated that, on October 24, 1996, the IPC Committee conducted a review of Fisher's confinement status and, as a result of the review, Fisher was released to the general population that day. Wolfe further stated that, at the time of Fisher's release *166 into the general population, the measures outlined by Captain John Sherlock in his testimony on October 23, 1996, were put into place, i.e.: (1) Fisher was assigned to a dormitory where none of the defendant correction officers are assigned to work; (2) a supervisor of higher rank must be present if it is necessary for a defendant correction officer to come in contact with Fisher: and (3) Fisher was given a work assignment to the facility grounds crew.

Although Wolfe's affidavit was filed after the conclusion of the evidentiary portion of the preliminary injunction hearing, the Court has accepted and considered it, because: (1) it deals with relevant facts that occurred only after the hearing was completed; and (2) plaintiffs have submitted nothing to dispute any of the statements therein.

V. Summary of Findings Regarding Other Exhibits

Prior to the hearing, the parties provided the Court with several volumes of exhibits consisting mostly of various records and documents pertaining to Fisher, including medical records, psychiatric records, prison disciplinary records, prison counseling records, prison administrative records, and correspondence records. None of the parties made any objections to the exhibits when they were submitted. Although most of these exhibits were not formally introduced into evidence at the hearing, the Court has read and considered them, and now makes several general findings of fact based on them.

The exhibits show that Fisher has been seeking a transfer from Albion to a facility closer to her home, continuously, since the time she first entered Albion, and before any of the alleged sexual misconduct by correction officers contained in the complaint. See, e.g., Plaintiffs' Exhibit 5 (letter from Eric Naiburg to James Flateau, dated February 11, 1993, "[I]t would appear that it would be in the best interest of the Department of Corrections, and Fisher, that she be transferred to a different institution. I recognize that I have absolutely no input regarding the choice of institutions, although I would urge one of the institutions in Westchester County. I recognize that Bedford Hills is a maximum security facility, however, her physical well-being would be most protected in such an institution"); Defendants' Exhibit 36 (memorandum from Sergeant Van Kamp to Captain Kearney, dated March 4, 1994, stating that Fisher requested a transfer to another facility) (letter from Fisher to Sergeant Bailey, written on or about November 24, 1995, stating that defendant Shimley "tried to convince me to help him by telling me that I would get transferred—something that I make no secret that I want"); Defendants' Exhibit 40A (DOCS Inmate Review Packet for period September 2, 1995 to December 1, 1995, "inmate interested and meets criteria to be transferred closer to home").

The exhibits also show that Fisher has had significant disciplinary problems while at Albion. See Defendants' Exhibit 6. She has been disciplined on numerous occasions for disobeying direct orders from staff, smuggling, and failing to obey the rules of the institution. Her disciplinary problems began almost immediately upon arriving at the institution. Numerous counseling reports confirm that Fisher has had a difficult time adjusting to institutional life. See, e.g., Defendants' Exhibit 40A (DOCS Inmate Review Packet for period December 14, 1992 to March 15, 1993, "poor institutional adjustment") (DOCS Inmate Review Packet for period June 2, 1995 to September 1, 1995, "very poor institutional adjustment").

The exhibits further show that Fisher has had numerous conflicts and problems with other inmates at Albion. See, e.g., Defendants' Exhibit 36 (note from Fisher to Sergeant Van Camp, dated March 4, 1994, complaining about threats of physical violence by inmate Mirayes) (Report of Inmate Injury, dated September 23, 1994, stating that Fisher was punched several times by inmate Powell while she was sleeping) (note from Fisher to Superintendent Andrews, dated December 16, 1994, complaining about inmate David stealing her property) (note from Fisher to "Captain," undated, complaining about threats from inmate Vassel) (note from Fisher to Superintendent Andrews, dated August 16, 1995, complaining that inmate Copeland was threatening her and spreading rumors that she was sexually active with *167 correction officers); Defendants' Exhibit 40C (memorandum from Helene Rattiner to Deputy Superintendent Smith, dated October 28, 1993, regarding Fisher's report that inmate Smyth was trying to extort money from her) (Protection Waiver Form by Fisher, dated August 11, 1993, stating that she was assaulted by inmate Singleton). Her difficulty with other inmates also began almost immediately upon her arrival. See Defendants' Exhibit 40E (note from Fisher to Deputy Superintendent Smith, dated December 11, 1992, requesting to be transferred within Albion because other inmates were harassing her).

Moreover, the exhibits show that Fisher has been neither hesitant nor fearful about complaining to prison authorities about the conduct of correction officers. In fact, she started complaining about correction officers from almost the moment she arrived at Albion. See, e.g., Defendants' Exhibit 36 (letter from Fisher to Deputy Superintendent Stevens, written on or about January 14, 1993, complaining about a ticket from Correction Officer Stirk and alleging that Stirk made false statements) (letter from Fisher to Superintendent Andrews, dated July 11, 1995, complaining about conduct of Sergeant Adamczyk) (note from Fisher to Superintendent Andrews, date stamped February 9, 1994, complaining about search of her cell by defendant Stiles, and signed "one outraged inmate"); Defendants' Exhibit 37 (grievances from Fisher, dated February 9 and 17, 1994, complaining about being harassed by defendants Stiles and Galbreath); Defendants' Exhibit 40B (letter from Fisher to Superintendent Andrews, date stamped February 24, 1993, complaining about the conduct of defendant DiSalvo).

In sum, these exhibits, when taken together, show that from the moment Fisher arrived at Albion: (1) she has had a difficult time adjusting to institutional life; (2) she has had difficulty getting along with other inmates; (3) she has had difficulty taking orders from correction officers; (4) she has not been bashful or timid about complaining to prison authorities about perceived misconduct by correction officers; and (5) she has been continuously requesting transfers to another facility closer to her home.

CONCLUSIONS OF LAW

I. Preliminary Injunction Standard

A party seeking a preliminary injunction ordinarily must show that it will suffer irreparable harm in the absence of an injunction, and demonstrate either: (1) a likelihood of success on the merits; or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor. See Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir.1996). In some circumstances, however, an even higher standard applies. Where the injunction sought will alter, rather than maintain, the status quo by commanding some positive act, it is properly characterized as a mandatory rather than a prohibitory injunction, and the moving party must show a "clear" or "substantial" likelihood of success on the merits. Jolly, 76 F.3d at 473; Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir.1995); Abdul Wall v. Coughlin, 754 F.2d 1015, 1025 (2d Cir.1985). A district court should show "greater reluctance to issue a mandatory injunction than a prohibitory injunction." Abdul Wali, 754 F.2d at 1025.

The burden of proving that a preliminary injunction should be issued rests entirely and always with the movant. The party seeking the injunction bears a heavy burden. Liddy v. Cisneros, 823 F.Supp. 164, 173 (S.D.N.Y.1993). A preliminary injunction is an extraordinary and drastic remedy, and must be denied "absent a clear showing that the movant has met its burden of proof" Karmikel Corp. v. May Dep't Stores Co., 658 F.Supp. 1361, 1367 (S.D.N.Y.1987).

In the prison context, a request for injunctive relief must always be viewed with great caution so as not to immerse the federal judiciary in the management of state prisons. Farmer v. Brennan, 511 U.S. 825, 846-47, 114 S.Ct. 1970, 1983-84, 128 L.Ed.2d 811 (1994) (in the prison context, "a district court should approach issuance of injunctive orders with the usual caution"); Goff v. Harper, 60 F.3d 518, 520 (8th Cir.1995) ("[I]n the prison context, a request for injunctive relief must *168 always be viewed with great caution because `judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.'"); Taylor v. Freeman, 34 F.3d 266, 268-69 (4th Cir.1994); Streeter v. Hopper, 618 F.2d 1178, 1181 (5th Cir.1980) ("Courts should proceed cautiously in cases of this kind, to prevent courtroom magnification of the general dangers inherent in prison life from precipitating unnecessary judicial interference in the operation of state prisons."). This cautious approach to judicial intervention in the prison context is based on concerns of federal judicial competency and comity. Taylor, 34 F.3d at 268. Injunctive relief should therefore be issued in the prison context only in extraordinary circumstances. Id.

Here, plaintiffs are asking the Court to issue a preliminary injunction ordering DOCS to transfer Fisher to a federal prison or, in the alternative, to another prison in New York or elsewhere. The requested relief is clearly mandatory rather than prohibitory in nature as it would alter the status quo by requiring the defendant prison officials to surrender custody of Fisher, a New York inmate, to another jurisdiction, or to transfer Fisher to another prison in the DOCS system. Thus, plaintiffs must establish irreparable harm and a clear or substantial likelihood of success on the merits before such relief may be granted.

II. Irreparable Harm

The Second Circuit has held that to establish irreparable harm, plaintiffs must demonstrate an injury that is neither remote nor speculative, but actual and imminent. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir.1989). "[A] finding of irreparable harm is an absolute prerequisite to the issuance of an injunction." Fireman's Fund Ins., Co. v. Leslie & Elliott Co., 867 F.2d 150, 151 (2d Cir.1989). A preliminary injunction cannot be issued based on past harm. The purpose of a preliminary injunction is to prevent future irreparable harm. See Buckingham Corp. v. Karp, 762 F.2d 257, 262 (2d Cir.1985) ("The linchpin of such interim relief is that threatened irreparable harm will be prevented by the injunction.").

In this case, although not clearly expressed in their papers, plaintiffs appear to be asserting that Fisher will suffer irreparable harm in four ways if she is required to remain at Albion: (1) she will be subject to the risk of further rapes and sexual abuse; (2) she will be subject to retaliation by the defendants and other prison officials; (3) she will suffer psychological harm as a result of being forced to remain at the site of the alleged rapes and to come in contact with the defendant correction officers who allegedly raped her; and (4) she will be subject to further violations of her First Amendment rights. The Court finds that plaintiffs have failed to show that Fisher will suffer irreparable harm if she remains at Albion.

A. Risk of Future Rapes and Sexual Abuse

Fisher testified that she has been the victim of numerous rapes and sexual abuse by the defendant correction officers, and argues that she should be transferred in order to prevent any future attacks. The Court finds this argument unpersuasive for several reasons.

First, Fisher's claims of rape and sexual abuse are undermined by severe credibility problems. As stated above, the Court finds that Fisher is not a credible witness. Further, her testimony was both uncorroborated and inconsistent with the testimony of other witnesses and evidence in the record.

Second, even if it is assumed arguendo that Fisher's allegations of past rapes and sexual abuse are true, prison officials at Albion have now taken steps to protect Fisher from any such attacks in the future. The defendant prison officials have issued orders prohibiting unsupervised contact by any of the defendant correction officers with Fisher. Three of the five defendant correction officers who allegedly raped her, Schwartz, Hemley and Kuttner, no longer work at Albion. In addition, Fisher has been returned to the general population, placed in a housing unit where none of the defendant correction officers work, and assigned to a prison job that promotes highvisibility among prison *169 officials and other inmates.34 She also has access to supervisors at any time. These measures, taken by Albion in order to protect Fisher, not only protect her from any risk of harm from the defendant correction officers, but also deal with her complaints of isolation while she was in SHU.35

Third, the State of New York passed into law, effective August 1, 1996, a statute that classifies any sexual relations between a prison employee and an inmate as statutory rape. N.Y. Penal L. § 130.05(3)(e). This new statute should act as a further deterrent to the type of conduct alleged by Fisher in this case.

In sum, the Court finds there is little risk that Fisher will be subject to rape or sexual abuse if she remains at Albion.

B. Retaliation

Plaintiffs claim that Fisher has been retaliated against as a result of her allegations against the defendants and that she will continue to be retaliated against in the future. Fisher claims that defendants have retaliated against her in three ways: (1) on June 27, 1996, she was unjustifiably placed in disciplinary confinement in SHU; (2) while in SHU, she was not allowed to recreate with other inmates and her telephone conversations were tape recorded; and (3) on August 27, 1996, after her disciplinary confinement term had expired, she was placed in IPC in SHU. The evidence shows, however, that these actions were not taken against Fisher for purposes of retaliation, but were taken for legitimate penological reasons. Fisher was placed in disciplinary confinement in SHU on June 26, 1996, as a result of two love letters that she wrote to a correction officer in violation of the rules of inmate behavior. See N.Y. Comp.Codes R. & Regs. tit. 7, § 270.2, rule 101.10 ("Inmates shall not engage in, encourage, solicit or attempt to force others to engage in sexual acts."). There is no evidence that she was disciplined in retaliation for her allegations in this case. In fact, the complaint in this case had not even been filed at that point. Nor did her confinement in SHU limit her ability to speak with individuals outside of Albion. She retained mail privileges, legal telephone call privileges and visitation privileges while in SHU.

Fisher's claim that defendants retaliated against her by making her recreate alone is frivolous. Although inmates have a constitutional right to exercise, there is no constitutional or statutory right to exercise or associate with other inmates. Superintendent Andrews decided that, based on Fisher's allegations of physical retaliation by other inmates, it was prudent to limit her physical contacts with others. This Court is not here to second guess such a penological determination or to become involved in the minutiae of day-to-day prison life. There is no evidence that Superintendent Andrews had a retaliatory purpose when she ordered Fisher to recreate alone. Further, the evidence shows that Fisher did, in fact, have an opportunity to recreate with other inmates while she was in SHU. Captain Sherlock testified credibly that he saw her recreate with others while she was in SHU. In addition, Fisher admits that she was given an opportunity to recreate with inmate Figueroa, but expressly declined to do so.

*170 Fisher's claim that prison officials retaliated against her by tape recording her telephone calls while she was in SHU is equally frivolous. For obvious security reasons, inmate telephone calls are subject to being monitored and tape recorded. See N.Y. Comp.Codes R. & Regs. tit. 7, § 723.3(c). Captain Sherlock testified credibly that Fisher's calls were being taped so that prison officials could determine whether she had been the subject of any threats from other inmates as a result of either Nieves' allegations that she set up other inmates or her own negative comments about other inmates appearing in the Times article.

Fisher's placement in IPC was done for the purpose of protecting her from harm from other inmates, not to retaliate against her. Captain Sherlock testified credibly that he was concerned that inmates would target Fisher for retaliation after Nieves accused her of having set up fellow inmates and after the Times article was published containing Fisher's derogatory statements about other inmates. Indeed, as stated above, Fisher had a long history of problems with other inmates resulting from her notoriety and her attitude toward them, and she complained constantly about being threatened by other inmates. Placing Fisher in IPC under these circumstances was certainly reasonable and prudent, and was indicative of the defendant prison officials' attentiveness to Fisher's situation. When Albion prison authorities became aware of a risk of harm from other inmates, they reacted appropriately by removing Fisher from the general population and placing her in a more secure unit. See Carrigan v. Delaware, 957 F.Supp. 1376, 1385 (D.Del.1997). Once inmate Nieves was transferred to another prison, and there was no other evidence of possible reprisals by other inmates, Fisher was released from IPC and placed back in the general population. There is no indication whatsoever that Fisher was placed in IPC in order to retaliate against her for her allegations in this case.

Finally, defendants have indicated in their papers, and it has been this Court's experience, that after filing lawsuits against prison officials, inmates often request to be transferred, based on conclusory, uncorroborated and unsupported allegations that they will be subject to retaliation as a result of bringing the lawsuit. Such claims of retaliation are prone to abuse and must be approached with caution. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). As both Captain Sherlock and Assistant IG Urban testified, transferring prisoners based on uncorroborated allegations against correction officers would wreak havoc on the prison system as any inmate wanting a transfer would simply have to file a lawsuit against a correction officer and then claim that he or she will be subject to retaliation if he or she is not transferred to a different facility.

C. Psychological Harm

Fisher argues that she should be transferred because she will suffer psychological harm if she is forced to remain at Albion where the alleged rapes and sexual abuse took place, and if she is forced to come in contact with the defendant correction officers who allegedly raped her. In support of her argument, Fisher points to Dr. Ciccone's testimony that it would be a tremendous psychological stressor for an individual who has been raped to be forced to come in contact with the rapist or to be forced to return to the scene of the rape.36 The Court finds, however, that there is currently no risk to Fisher's mental or physical health if she remains at Albion.

Fisher's physical health is good and she has had no psychiatric symptoms since being released from disciplinary confinement in SHU. Dr. Ciccone testified credibly and persuasively that Fisher does not, at this time, suffer from any type of mental or psychological problem, and that her previous depression was solely the result of her isolation in disciplinary confinement. Significantly, both Dr. Ciccone and plaintiffs' own expert, Dr. Ewing, testified that Fisher did not express any fear related to the alleged rapes or about staying at Albion. If in the future Fisher *171 develops any psychiatric problems such as depression, treatment is available to her at Albion. To date, she has declined such treatment.

Moreover, as stated above, the Court finds that Fisher's claims of rape and sexual abuse are not credible. Of course, if she was not raped, then there is little or no risk that she will suffer any psychological harm from having to remain at Albion. Further, even if Fisher's allegations are assumed to be true, the defendant prison officials have, as discussed above, taken reasonable and adequate steps to ensure that Fisher has minimal contact with the defendant correction officers. In fact, three of the five correction officers who Fisher alleges raped her no longer even work at Albion. Thus, there is little or no danger that Fisher will suffer psychological harm if she remains at Albion.

D. Further Violations of Fisher's First Amendment Rights

Plaintiffs claim that defendants have irreparably harmed Fisher by punishing her for speaking out, in violation of the First Amendment. More specifically, plaintiffs claim that defendants violated Fisher's First Amendment rights by: (1) punishing her for sending love letters to a correction officer; (2) placing her in disciplinary confinement in retaliation for her statements in the Times article and her allegations in this case: and (3) using the content of the Times article as a basis for placing her in IPC. The Court finds this claim without merit.

Inmates simply do not have a First Amendment right to write love letters to correction officers, and prison authorities certainly have a significant and legitimate interest in prohibiting and punishing such conduct. Thus, punishing Fisher for writing love letters to Sergeant Bailey did not violate her First Amendment rights.

Fisher's claim that she was placed in disciplinary confinement in retaliation for her statements in the Times article and her allegations in this case is not supported by the facts in the record. As stated above, Fisher has failed to present any evidence of retaliation. The evidence shows that her placement in disciplinary confinement, and later in IPC, was for legitimate reasons. She was placed in disciplinary confinement for writing the love letters to Sergeant Bailey. She was placed in IPC to protect her from harm from other inmates after Nieves accused her of having set up fellow inmates and after the Times article was published containing Fisher's derogatory statements about other inmates. Defendants did not punish Fisher for her statements in the Times article: they simply protected her from the possible consequences associated with the article's publication.

Finally, even if plaintiffs were able to establish that defendants somehow violated Fisher's First Amendment rights, the relief sought here, i.e., a transfer to another prison, would not be necessary or appropriate. At most, the Court would order defendants to cease and desist from any future violations. Fisher would not have to be transferred in order to prevent the alleged harm.

III. Clear or Substantial Likelihood of Success on the Merits

As stated above, in order to succeed on their motion for a mandatory preliminary injunction, plaintiffs must make a clear or substantial showing of a likelihood of success on the merits. Although Fisher alleges myriad violations of her federal and state constitutional, statutory and common law rights, the crux of her complaint is that the defendant correction officers deprived her of her right to be free of cruel and unusual punishment under the Eighth Amendment to the United States Constitution by allegedly raping and sexually abusing her, and that the defendant prison officials, through their deliberate indifference, allowed this deprivation to occur. In Boddie v. Schnieder, 105 F.3d 857 (2d Cir.1997), the Second Circuit recently discussed the parameters of an Eighth Amendment sexual abuse claim under § 1983. The court held that sexual abuse of a prisoner by a correction officer may, in some circumstances, violate the prisoner's right to be free from cruel and unusual punishment. Id. at 860-61. The court stated:

Id. (internal citations omitted).

Fisher has failed to establish a clear or substantial likelihood of success on her Eighth Amendment sexual abuse claim. Simply put, after carefully considering the testimony offered at the hearing and the other evidence in the record, the Court finds that Fisher's claims of rape and sexual abuse are not credible. Neither Fisher nor her mother was a credible witness and their testimony was contradicted both by other witnesses, particularly Nieves, and other evidence in the record.

The credibility of Fisher's claims is also undermined by the lack of credibility of her complaint. As stated above, the complaint contains blatantly false and misleading allegations. For example, plaintiffs' descriptions of the telephone calls between defendant Schwartz and Mrs. Fisher as "harassing," "foreboding" and as containing "deliberate threats and intimidation," are totally false and misleading. The integrity of the complaint is also undermined by the inclusion of Correction Officer Zamniak as a defendant. When asked about Zamniak at the hearing, Fisher testified, don't even know why he's in this suit or what he did." T. 297. Thus, there appears to have been insufficient investigation of the facts before the complaint was filed.

Fisher's claims of rape are also uncorroborated. Despite being told by plaintiffs' counsel at the initial appearance that plaintiffs had a "safety deposit box" containing all sorts of evidence, plaintiffs presented no evidence to corroborate Fisher's testimony.37 *173 They offered no other witnesses to or physical evidence of the alleged rapes. Plaintiffs appear to contend that the tape recorded telephone calls from Schwartz to Mrs. Fisher somehow corroborate Fisher's claims. The Court disagrees. Although the tapes establish inappropriate conduct on the part of Schwartz, they do not corroborate Fisher's claims of rape.

Plaintiffs argue that the Court must accept as fact Fisher's testimony alleging rape and sexual abuse, because the individual defendant correction officers were not called to the stand by the defendants to refute her allegations. The Court finds this argument without merit. The burden of proving that she is entitled to a preliminary injunction remains at all times on Fisher. It is up to her to convince the Court by a preponderance of the evidence that her allegations of rape and sexual abuse are true. She could have called the individual defendant correction officers to the stand to testify but, with the exception of defendant Schwartz, chose not to do so. There was no requirement on the part of the individual correction officers to take the stand to refute Fisher's allegations. Interestingly, prior to the hearing, plaintiffs moved to have the individual defendant correction officers precluded from participating in the hearing, because, plaintiffs argued, their participation was unnecessary. See Item No. 8.

In any event, defendants did, in fact, present evidence refuting Fisher's testimony regarding allegations of rape and sexual abuse. At the hearing, defendant Schwartz denied Fisher's claims that he raped her. Three of the other defendant correction officers submitted affidavits denying Fisher's claims of rape and sexual abuse against them.38 Further, as stated above, Fisher was cross-examined by defendants' counsel and she was not credible. Nieves testified credibly that Fisher told her that she had a "plan" to make false allegations of rape against correction officers in order to obtain a transfer. Fisher failed to present any evidence to rebut Nieves' testimony. Nieves' testimony is corroborated by prison records that show that Fisher has been attempting to get a transfer to a facility closer to her home since the moment she arrived at Albion. Nieves' testimony is also corroborated by the taped telephone calls between defendant Schwartz and Mrs. Fisher. These tapes reveal plaintiffs' deliberate "plan" to set up Schwartz. On the tapes, Mrs. Fisher encouraged Schwartz to continue calling and to write to Fisher. This "plan". to set up Schwartz is consistent with Fisher's overall "plan". that she described to Nieves to set up correction officers with false accusations of rape in order to effectuate a transfer to a facility closer to home.

Furthermore, even if it is assumed arguendo that Fisher's hearing testimony was credible, she still has not established a clear or *174 substantial likelihood of success on the merits with respect to a number of the individual defendant correction officers.39 On her claims of rape under § 1983, Fisher has the burden of showing lack of consent. Lyons v. Williams, 91 F.3d 1308, 1311 (9th Cir.1996), cert. denied, 519 U.S. 1111, 117 S.Ct. 949, 136 L.Ed.2d 837 (1997). Fisher's own testimony about her sexual relationships with defendants Schwartz, Hemley and Kuttner can only reasonably be interpreted as showing that the relationships were consensual in nature. While testifying, Fisher never used the word "rape" to describe her sexual interactions with these defendants.40 In contrast, she expressly stated that defendants DiSalvo and Schmidt "raped" her.41 Further, she presented no evidence that either Schwartz, Hemley or Kuttner forced, threatened or coerced her to have sex. She admitted that she did not resist them or tell them no. She testified that she had sexual relations with Schwartz and Hemley on several occasions and described each of them as a "friend." She indicated that she ended her sexual relationship with Schwartz, not because he raped or abused her, but because she "didn't miss him" when she was at Bedford Hills. Although, as stated above, Fisher's prison records indicate that she was never hesitant or afraid to complain to prison officials about perceived mistreatment by correction officers, she did not report her alleged sexual interactions with these defendants until months after they occurred, and she testified that she had sexual relations with Hemley even after she had reported him. Thus, with regard to Schwartz, Hemley and Kuttner, Fisher has failed to show lack of consent, even if her testimony is assumed to be true.

This case is similar to the recent case of Freitas v. Ault, 109 F.3d 1335, 1339 (8th Cir.1997). In Freitas, a male inmate brought a § 1983 action against a warden and a female prison employee, alleging that he was sexually harassed by the employee in violation of the Eighth Amendment. After a bench trial, the district court found that the sexual relationship between the inmate and the employee was consensual and therefore the inmate failed to establish his Eighth Amendment sexual harassment claim. In affirming the district court, the Eighth Circuit agreed with the district court's factual determination that the relationship between the inmate and the employee was consensual, and noted that the record contained no evidence, other than the inmate's unsubstantiated assertions, supporting his claim that he succumbed to the employee's advances because she was his boss and he feared the possible negative consequences of reporting her actions. The circuit court concluded that, because the sexual interactions between the inmate and the employee were consensual, there was no violation of the Eighth Amendment.

Applying Freitas to the instant case, the Court finds that, even if Fisher's testimony had been found credible, Fisher failed to establish an Eighth Amendment violation with regard to defendants Schwartz, Hemley and Kuttner. As stated above, Fisher's own description of her alleged sexual relationships with these individuals shows that they were consensual. Under Freitas, consensual sexual interactions between a correction officer and an inmate, although unquestionably inappropriate, and in this Court's view despicable, do not constitute cruel and unusual punishment under the Eighth Amendment.

Plaintiffs argue that there exists a "power discrepancy" between a correction *175 officer and an inmate, making it impossible for an inmate to ever truly consent to having sexual relations with a correction officer. While the Court agrees that a correction officer's position of authority over an inmate is a factor that should be considered when determining, factually, whether or not there was consent, plaintiffs have cited no case law or applicable statutory authority to support the proposition that an inmate may never, as a matter of law, consent to sexual relations with a correction officer. Indeed, the Eighth Circuit, in Freitas, clearly held that an inmate may consent to sexual relations with a prison employee. Here, there is no credible evidence that either Schwartz, Hemley or Kuttner used their positions as correction officers to force, threaten or coerce Fisher into having sex.

Of course, as stated above, it is now the law in New York that sexual relations of any kind between an inmate and a correction officer constitute statutory rape. N.Y. Penal L. § 130.05(3)(e). This law was not in effect, however, at the time of the alleged misconduct in this case. Indeed, the fact that it was necessary to enact such a law, combined with the lack of evidence of any prior prohibition, would indicate that, before the new law's passage, an inmate could, as a matter of law, consent to sexual relations with a correction officer.

The wisdom of this new law is manifest. It draws a "bright line" between acceptable and unacceptable conduct. Sexual interactions between correction officers and inmates, no matter how voluntary, are totally incompatible with the order and discipline required in a prison setting. Further, the Court is disturbed by the notion that an inmate might feel compelled to perform sexual favors for correction officers in order to be on the officer's "good side." Such quid pro quo behavior is inappropriate, despicable and serves no legitimate penological purpose.

The Court further finds that Fisher's allegations against defendant Thomas, even if assumed to be true, do not rise to the level of an Eighth Amendment violation. Fisher testified that, on several occasions Thomas stroked her hair while she was sleeping and that he once gave her an unsolicited kiss. Again, while such conduct, if true, is clearly inappropriate and unacceptable, it does not rise to the level of an Eighth Amendment violation.42 See Boddie, 105 F.3d at 861 (inmate's claims that he was verbally harassed, touched and pressed against without his consent on a small number of occasions did not involve a harm of federal constitutional proportions); Kaestner v. Mitchell, 1996 WL 428357 (N.D.Cal. July 24, 1996) (inmate's allegation that defendant stood closer to inmate than necessary and on one occasion grabbed his buttocks did not rise to the level of an Eighth Amendment violation); Duncan v. Keane, 1995 WL 649931 (S.D.N.Y. Nov.6, 1995) (complaint that guard sexually harassed inmate by feeling all over the inmate's buttocks dismissed for failure to state a claim). Nor do Fisher's allegations that she was verbally harassed by several of the defendant correction officers state a claim under the Eighth Amendment. Adkins v. Rodriguez, 59 F.3d 1034, 1037 (10th Cir.1995); Young v. Coughlin, 1996 WL 451411 (S.D.N.Y. Aug.8, 1996).43

The Court notes that it frequently receives requests for injunctive relief from prison inmates, especially requests for transfers from one prison to another. The majority of these requests are frivolous, and are resolved on the papers without a hearing. The Court held a hearing in this case, however, because the allegations of rape and sexual abuse stated in the complaint are extremely serious, *176 and because plaintiffs' counsel represented to the Court that plaintiffs had substantial corroborating proof to support their claims. Rape or sexual abuse of inmates by correction officers is abhorrent and cannot be tolerated or condoned. Prison officials must be diligent in preventing such misconduct and punishing those who transgress. Nevertheless, in this case, Fisher's allegations of rape and sexual abuse do not bear up under close scrutiny. Unfortunately, it appears that she and her mother are trying to manipulate the system by capitalizing on this sensitive and important issue.

The Court further notes, however, that its decision here should not be viewed as a ringing endorsement of the situation at Albion. Despite the Court's determination that Fisher's claims of rape and sexual abuse are not credible, there are indications that all is not right at Albion. For example, defendant Schwartz' admitted misconduct was certainly a serious breach of acceptable behavior, and the light punishment he apparently received, i.e., a transfer, would seem to send the wrong message to other correction officers. It was also clearly inappropriate for prison officials to have allowed television cameras into Fisher's living area. Further, Nieves indicated during her testimony that voluntary sexual interactions between inmates, and between inmates and corrections officers, are common at Albion. She further mentioned that some male correction officers grope inmates while frisking them. Nieves also indicated that drug use by inmates is not unusual and that drugs flow freely into Albion. The Court cannot stress enough how important it is for the defendant prison officials to investigate fully and thoroughly these matters and to take immediate and appropriate remedial action, where required.

IV. Requested Relief Inappropriate

Plaintiffs request that Fisher be transferred from Albion to the custody of FBP at Danbury, or in the alternative, that she be transferred to another facility in the DOCS system or in another state. The Court finds that the requested relief is inappropriate for two reasons: (1) the Court lacks authority to order FBP to accept and maintain custody over a state inmate, such as Fisher; and (2) even if the Court were to determine that defendants violated Fisher's federal rights, the Court would have to afford the State of New York and the defendant prison officials an opportunity to correct its own errors and present a proposal for relief, before granting any injunctive relief.

A. The Court Lacks Authority to Order Placement of a State Prisoner Into the Custody of FBP

Fisher is serving a duly imposed state sentence under the custodial authority of DOCS. She is not subject to any type of federal sentence. This Court lacks jurisdiction to order FBP to accept Fisher into federal custody.

It is well settled that a prisoner has no constitutional right to serve a sentence in any particular institution or to be transferred or not transferred from one facility to another. Olim v. Wakinekona, 461 U.S. 238, 249-50, 103 S.Ct. 1741, 1747-48, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976); Pugliese v. Nelson, 617 F.2d 916, 922 (2d Cir.1980).

Even when a defendant receives a federal sentence, a district court "has no authority to order that a convicted defendant be confined in a particular facility, much less placed in a particular treatment program: those decisions are within the sole discretion of the Bureau of Prisons." United States v. Williams, 65 F.3d 301, 307 (2d Cir.1995). Likewise, when a state has primary custodial jurisdiction over an inmate, a federal court cannot order the delivery of the defendant for service of a sentence in a federal institution. Such an order would be tantamount to a transfer of custody beyond the jurisdiction of the federal court. United States v. Warren, 610 F.2d 680, 684-85 (9th Cir.1980).

In this case, there is no question that the plaintiff is under the primary custodial jurisdiction of the New York State. She is incarcerated solely on the basis of a state sentence, the legality of which is not before this Court. Accordingly, this Court has no authority to order FBP to accept custody of Fisher.

*177 In support of her position, Fisher cites to the case of Walker v. Lockhart, 713 F.2d 1378 (8th Cir.1983), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80 L.Ed.2d 552 (1984). In Walker, the plaintiff-inmate brought a civil rights and habeas corpus action against prison officials, alleging that his confinement within the Arkansas penal system violated the Eighth Amendment prohibition against cruel and unusual punishment. The Eighth Circuit held that the uncontradicted evidence of the inmate's notoriety and his claim that a former warden had threatened him indicated that he would face increased danger in the State's prison system if he were allowed to mix with the system's general population, because he was an inviting target for any disgruntled prisoner who wanted to embarrass prison authorities. Therefore, the court held, he was entitled to serve the remainder of his sentence in another jurisdiction where he would be granted the same privileges and amenities as any other prisoner. The Eighth Circuit remanded the case to the district court for entry of an order requiring the Arkansas prison authorities to transfer the inmate to a place of incarceration outside of Arkansas, "either in a federal or another state's correctional institution." Id. at 1383.

The Court finds Walker distinguishable on two grounds. First, the ruling in Walker was based on that court's finding that no facility within the State of Arkansas could safely house the inmate. Id. at 1383. Such a claim has not been made here and there has been no evidence that Fisher cannot be housed safely in another correctional facility within the DOCS system. Second, the Walker court directed that the State of Arkansas provide for the transfer of the inmate to another jurisdiction. The Court did not order FBP to accept the inmate. Thus, Walker does not stand for the proposition that a federal court may order FBP to accept a state inmate into its custody.44

B. The Court Must Afford New York State the Opportunity to Correct the Situation

Even if the Court were to find that defendants violated Fisher's constitutional rights, the Court would not immediately grant the relief requested by Fisher, i.e., a transfer to another prison. "Even where there has been a finding on the merits that unconstitutional conditions exist, federal courts should proceed cautiously and incrementally in ordering remediation so as not to assume the role of prison administrators." Taylor, 34 F.3d at 269 (citations omitted). "[F]ederal judicial intervention in the details of prison management is justifiable only where state officials have been afforded the opportunity to correct constitutional infirmities and have abdicated their responsibility to do so." Id. This is especially true when mandatory injunctive relief is sought and only preliminary findings as to the plaintiffs likelihood of success on the merits have been made. Id.

In Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the Supreme Court recently addressed the proper method for fashioning injunctive relief in prison cases. In Lewis, the Court reversed an injunction that did not afford state prison officials the opportunity to correct their own errors. Id. at ___-___, 2185-86. The process set forth by the Court requires that the district court find an injury first, then afford prison officials an opportunity to devise and present an appropriate remedy for judicial review. Id. Citing its decision in Preiser v. Rodriguez, 411 U.S. 475, 492, 93 S.Ct. 1827, 1837-38, 36 L.Ed.2d 439 (1973), the Court stated that "[t]he strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors ... also require giving the States the first opportunity to correct errors made in the internal administration of their prisons." Id. at ___, 2185.

Similarly, in this case, even if the Court were to find that defendants violated Fisher's constitutional rights, the Court would, pursuant to Lewis, afford the defendant prison officials an opportunity to correct their own errors and present a proposal for relief to *178 this Court before granting any type of injunctive relief to plaintiffs.45

V. Amendment of Complaint

The complaint in this case is 94 pages long and contains approximately 396 numbered paragraphs. It is written in a rambling, "scatter shot" manner and, at times, reads more like a cheap dime store novel or a script for a tabloid television show than a pleading in a federal lawsuit. Even more problematic is the fact that it contains numerous false, misleading, irrelevant, highly inflammatory and prejudicial statements and allegations. See, e.g., Complaint at ¶¶ 4-7, 35-37, 46-53, 59, 68, 81-86, 95, 107-113, 143-48, 151-54, 191-93, 258-59, 274, 282(b), 283(a), 285-86, 290, 291-301, 312, 317, 319-20, 343, 350-51, 358, 372 and 378. As stated above with regard to Correction Officer Zamniak, there is every indication that counsel did not adequately research and investigate the facts and claims in this case before filing the complaint.

Accordingly, pursuant to Fed.R.Civ.P. 12(e) and (f), the Court hereby orders plaintiffs to submit an amended complaint striking all false, misleading, redundant, irrelevant, immaterial, impertinent, inflammatory, prejudicial and scandalous material from the original complaint, and eliminating all frivolous and unsupported or unsupportable claims. Along with the amended complaint, plaintiffs and their counsel shall each file an affidavit certifying that they have investigated the matter and the representations and allegations in the amended complaint are true and accurate to the best of their knowledge. Failure to comply with this requirement may result in dismissal of the case and/or sanctions pursuant to Fed.R.Civ.P. 11; 28 U.S.C. § 1927; and/or the Court's inherent power.

CONCLUSION

For the reasons stated, plaintiffs' motion for a preliminary injunction is denied. Plaintiffs shall file an amended complaint in accordance with this decision by August 15, 1997. Defendants shall respond to the amended complaint by answer or motion by September 15, 1997.46 The Court shall refer the case to Magistrate Judge Carol E. Heckman for supervision of all nondispositive pretrial matters. Due to its familiarity with the case, the Court shall hear and decide all dispositive motions.

IT IS SO ORDERED.

*505 Appeal by plaintiff from a final judgment of the United States District Court for the Southern District of New York (Mukasey, J.) dismissing § 1983 action. Affirmed.

Attorneys and Law Firms

Brian Prins, pro se, as Plaintiff-Appellant.

Dennis C. Vacco. Attorney General of the State of New York (Ronald Turbin and Rosemary Dibenedetto, Assistant Attorneys General, New York City, of counsel), for Defendants-Appellees.

Before: WINTER, JACOBS and PARKER, Circuit Judges.

Opinion

PER CURIAM:

Brian Prins, incarcerated and pro se, appeals a June 26, 1995 order of the United States District Court for the Southern District of New York (Mukasey, J.), denying his motion to amend his complaint and granting the defendants' motion for summary judgment.

BACKGROUND

Prins was an inmate in the custody of New York State's Department of Correctional Services ("DOCS"), was transferred from the Green Haven Correctional Facility ("Green Haven") to the Clinton Correctional Facility ("Clinton"), and is now apparently confined in a Florida correctional facility. On March 24, 1994, Prins filed the present complaint against Thomas Coughlin III, Commissioner of DOCS, and Green Haven administrators, claiming that his transfer substantially burdened his exercise of religious freedom as a Jew in violation of the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb-1. Green Haven is located in the Southern District of New York; Clinton is located in the Northern District of New York.

The complaint alleged that Prins (1) has "a sincere and strongly held religious belief that his hair and beard must not be shaved, cut, or trimmed and that he MUST maintain a KOSHER DIET at all times"; and (2) has "a sincere and strongly held religious belief that, he should be in a facility that has daily prayer services with a minyan as required by Jewish law, and permitted by DOCS officials in this State." However, the sole articulated legal theory was that the defendants had "deprived plaintiff of his right to a Hot Kosher Diet each and every day he is under the control of DOCS." In his demand for relief, the only equitable relief Prins specifically *506 requested was an "injunction from violating the plaintiff's right to a `Hot Kosher Diet' that is prepared in a `Kosher Kitchen'." Prins also requested compensatory and punitive damages.

On August 2, 1994, after a hearing conducted in June, the district court denied Prins' application for a preliminary injunction ordering his return to Green Haven so that he could have hot kosher food. On November 22, 1994, the defendants filed a motion for summary judgment. On December 26, 1994, Prins filed a Rule 3(g) statement in opposition to the defendants' motion, in which he described how the Jewish services at Clinton were less frequent and less traditional than those he attended at Green Haven; Prins also complained about DOCS's one-inch beard rule.

On June 23, 1995, the district court issued a memorandum and order granting the defendants' motion for summary judgment and dismissing Prins' complaint. The district court found Prins had failed to present any evidence that the kosher diet at Clinton failed to meet the standards of Kahane v. Carlson, 527 F.2d 492 (2d Cir.1975), and that Prins therefore was unable to demonstrate that his exercise of religion was "substantially burdened" by government action in this respect. The district court treated Prins' Rule 3(g) statement as a motion to amend the complaint for the purpose of adding claims as to the quality of religious services at Clinton and for relief against enforcement of the one-inch beard rule. The court then denied that motion to amend as to the religious services, on the ground that Prins did not allege that the services at Clinton were inadequate. The court denied the motion to amend as to the one-inch beard rule, on the ground that the rule is a general DOCS regulation that is unrelated to the transfer, and that any complaint regarding the application of the rule at Clinton would have to be brought in the Northern District of New York. Prins thereafter brought this appeal.

DISCUSSION

A.

Although not raised by either party, we first consider whether we lack jurisdiction by reason of mootness. In order for a federal court to retain jurisdiction over a case, an actual controversy must exist "at all stages of review, not merely at the time the complaint is filed." Preiser v. Newkirk, 422 U.S. 395, 402, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (citations omitted). A case is deemed moot where the problem sought to be remedied has ceased, and where there is "no reasonable expectation that the wrong will be repeated." Id. (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 S.Ct. 1303 (1953)).

It is settled in this Circuit that a transfer from a prison facility moots an action for injunctive relief against the transferring facility. Young v. Coughlin, 866 F.2d 567, 568 n. 1 (2d Cir.), cert. denied, 492 U.S. 909, 109 S.Ct. 3224, 106 L.Ed.2d 573 (1989); Beyah v. Coughlin, 789 F.2d 986, 988 (2d Cir.1986). On the other hand, the transfer does not moot an action for damages. Young, 866 F.2d at 568 n. 1. Since Prins is no longer incarcerated at either Green Haven or Clinton, he cannot get injunctive relief. Prins, however, also sought compensatory damages for harm caused by his transfer from Green Haven to Clinton, and that aspect of his complaint—and presumably of his putative motion to amend —are not moot.

B.

We review de novo a grant of summary judgment. Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993). On appeal, Prins does not dispute the district court's conclusion that the kosher diet at Clinton was adequate under the RFRA, nor does he dispute the legal analysis used to arrive at that conclusion. Rather, he appeals on the ground that all of the problems he identified in his complaint and Rule 3(g) statement should have been considered by the district court as a single interrelated set of claims bearing upon his freedom to worship. We analyze these claims—as the district court did—one by one. Accordingly, we affirm the district court's dismissal of Prins' *507 complaint, although we reach that conclusion by way of a somewhat different analysis.

In its August 2, 1994, Opinion and Order denying Prins' motion for a preliminary injunction, the district court observed in a footnote that "a prison inmate ordinarily has no due process right to avoid a transfer from one prison to another, even though the transferee prison may have more severe conditions than the transferor prison." The district court then proceeded (in the main body of the opinion) to address Prins's claim under the RFRA regarding hot kosher food. The court concluded that the kosher food at Clinton passed constitutional and statutory muster, denied the preliminary injunction, and reaffirmed its reasoning in the June 23, 1995, Memorandum and Order dismissing Prins's complaint.

As the district court noted at the outset, a prisoner generally has no due process right to challenge a transfer from one facility to another. Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Yet, this is precisely the gravamen of Prins's complaint, which names Green Haven officials as defendants for their role in effecting Prins's transfer to Clinton. The harm alleged by Prins is the deprivation of the kosher diet that was available at Green Haven. In light of Meachum, Prins has no enforceable culinary interest in the particular kosher diet offered at Green Haven as opposed to the one offered at Clinton. If the food at Clinton was incompatible with Prins's religion, the remedy would be a challenge in the Northern District of New York to the diet at Clinton, not a challenge in the Southern District to the transfer from Green Haven. We therefore affirm the district court's grant of summary judgment to the defendants and the dismissal of the complaint.

We do not read Salahuddin v. Coughlin, 993 F.2d 306 (2d Cir.1993), to require a contrary result. There, Salahuddin, a Muslim inmate who participated in weekly services at Auburn Correctional Facility, was one of many DOCS inmates selected for transfer to a newly constructed prison, Sullivan Correctional Facility, that could not accommodate religious services in its start-up phase. At Sullivan, Salahuddin and other inmates thus were not allowed to establish religious services. We held that the district court had erred in dismissing Salahuddin's suit against Sullivan officials, because it failed to consider "whether it was reasonable for [DOCS] to transfer inmates who regularly participated in congregate religious services," rather than transferring only prisoners who did not. Id. at 309. We explained that, since DOCS engaged in a selection process to determine which inmates should go to the new facility, and DOCS knew that Sullivan would not offer services, DOCS could have ascertained—and transferred— only inmates who did not regularly participate in religious services. Id. at 309-10.

In Salahuddin, the challenge to the prison transfer would have been reached on remand only after the district court determined that the failure to provide any opportunity for congregate religious services at the transferee facility was reasonable and therefore constitutional. That decision, therefore, allows a challenge to a transfer only where the transferee facility reasonably lacks any opportunity whatsoever for the exercise of a prisoner's religion. See 993 F.2d at 309. In the instant matter, the transferee facility does provide kosher food and Prins' challenge must be to the quality of that food at that facility rather than to the transfer.

Similarly, we affirm the district court's decision to deny Prins's putative motion to amend his complaint to include charges that the religious services at Clinton are not as frequent or as rigorous as the ones at Green Haven. We review for abuse of discretion a district court's denial of a motion to amend. S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir.1979). As with the kosher diet issue, Prins does not claim that Jewish services at Clinton were inadequate; he challenges only the particulars of the religious experience at Clinton—such as the available format and inspirational quality—as to which Green Haven officials cannot be expected to inquire into, investigate, or consider. Any claim that the Clinton services substantially burdened Prins's rights under RFRA cannot be maintained as a challenge to the Green Haven officials' decision to transfer him there.

*508 Finally, we agree with the district court that Prins's challenge to the DOCS one-inch beard rule is irrelevant to his transfer, and that it would be futile to permit Prins to amend his complaint to add such a claim.

CONCLUSION

We have examined Prins's other arguments and find them to be meritless. For the foregoing reasons we affirm the judgment of the district court.

Attorneys and Law Firms

*269 Austin Berry, Rukhsanah Lighari, Jeffrey A. Shooman** (Jon Romberg, on the brief), Seton Hall University School of Law, Center for Social Justice, Newark, NJ, for Plaintiff-Appellant.

David Lawrence III, Assistant Solicitor General (Eliot Spitzer, Attorney General of the State of New York, Michelle Aronowitz, Deputy Solicitor General, on the brief), New York, NY, for Defendants-Appellees.

Before KEARSE, WALKER and WALLACE,*** Circuit Judges.

Opinion

JOHN M. WALKER, JR., Circuit Judge.

In this 42 U.S.C. § 1983 action, a prisoner brings two sets of claims relevant on appeal: (1) claims for violation of his First Amendment right to free exercise of religion and his free-exercise right under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc; and (2) a claim for violation of his Eighth Amendment right to be free of cruel and unusual punishment. The prisoner alleges that prison officials forced Shi'ite and Sunni Muslims to conduct Ramadan services jointly, denied him Islamic holiday meals and the ability to attend Islamic worship services, and refused to provide him with a Muslim chaplain or a free Qur'an. The prisoner's Eighth Amendment claim stems from alleged deliberate indifference to his serious medical need for immediate Hepatitis C treatment. The District Court for the Southern District of New York (Charles L. Brieant, Judge) granted summary judgment to the defendants on all of the prisoner's claims. We affirm in part, vacate in part, and remand.

BACKGROUND

Plaintiff-appellant Abdullah Y. Salahuddin was and remains in the custody of the New York State Department of Correctional Services ("DOCS"). His claims on appeal pertain to aspects of his incarceration at various DOCS facilities.

I. Religious—Liberty Claims

Salahuddin claims that prison officials violated his constitutional and statutory rights to free exercise of religion in five distinct ways:

At the close of discovery, Magistrate Judge Fox recommended granting summary judgment to the defendants on the joint-worship claim and denying summary judgment on the keeplock, law-library, and legal-mail claims. The magistrate judge's report did not address the Qur'an/chaplain claim. After initially adopting the magistrate judge's recommendations in their entirety, the district court, on reconsideration, granted summary judgment to the defendants on all of Salahuddin's claims. Without citation to any authority, the district court concluded that there had been no violation of Salahuddin's free-exercise rights and, alternatively, that qualified immunity protected the defendants.

II. Eighth Amendment Claim

Salahuddin separately claims that the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by delaying treatment for his Hepatitis C infection. The infection was first diagnosed in September or October 2000, while Salahuddin was in custody at Woodbourne. At year's end, a doctor at Woodbourne informed Salahuddin that for the medical staff to determine the correct course of treatment, Salahuddin would have to undergo a liver biopsy.

*271 That biopsy was delayed for several months due to a series of events. First, Salahuddin was administratively tried and placed in disciplinary keeplock in December 2000 for conspiracy to assault an inmate. Next, in late December 2000 and January 2001, Salahuddin was transferred from Woodbourne to Eastern Correctional Facility to Downstate Correctional Facility to Auburn and, finally, to Lakeview, with the liver biopsy delayed during transit.

Then, sometime in February or March 2001, defendant-appellee Dr. Piazza, a physician on Lakeview's medical staff, canceled Salahuddin's liver biopsy because Salahuddin was eligible for parole within the next twelve months. Piazza believed this decision to be mandated by the DOCS Hepatitis C Primary Care Practice Guideline, a DOCS-wide policy promulgated by defendant-appellee Dr. Wright, the DOCS Chief Medical Officer. The record does not contain the text of that policy, but Wright quoted the policy as stating that Hepatitis C treatment will not proceed unless an inmate has "anticipated incarceration of at least 12 months." Wright Aff. ¶ 7. Wright explained that this twelve-month policy was justified because it is medically important for prisoners to receive a complete course of Hepatitis C treatment. Wright testified that "there is no program available to pay for the treatment and monitoring of completion of care of the patient after release." Id. ¶ 14. Wright further stated that it was justifiable to assure a complete course of treatment by postponing treatment until after a parole decision because "Hepatitis C tends to have a relatively slow progression ... usually occur[ing] over a period of two to three decades" and "is NOT invariably fatal." Id. ¶¶ 8, 9.

Wright stated that he told prison medical staff that he, himself, would determine an inmate's likely length of incarceration "based on [his] best prediction of what [the] Parole Board will determine." Id. ¶ 14. Aware of the written policy but evidently unaware of Wright's instructions, Piazza interpreted the policy as forbidding treatment of inmates within one year of their parole-eligibility date, not their expected release date as determined by Wright. Thus, in early 2001, Piazza canceled Salahuddin's liver biopsy without further inquiry.

On the day before Salahuddin's July 2001 parole hearing, Wright intervened and placed Salahuddin's treatment back on track by approving Salahuddin for a liver biopsy. The next day, Salahuddin went before the parole board and was denied parole. Salahuddin received the liver biopsy sometime during or before December 2001—neither party has seen fit to inform us of the precise date. After Salahuddin spent several months on a national waiting list for a new medication, an unidentified physician at Attica, where Salahuddin was then incarcerated, canceled an eventual shipment of medication because Salahuddin then had less than twelve months remaining until his next parole-board hearing. In December 2002, Wright intervened again and ordered expedited delivery of the medicine, which Salahuddin began receiving in January 2003. During the more than two years between his diagnosis and his eventual receipt of medication, Salahuddin complained to various prison officials and medical personnel about stomach pain, digestive problems, fever, chronic diarrhea, fatigue, and other maladies.

*272 After the close of discovery, Magistrate Judge Fox filed a report recommending that the district court deny the defendants' motion for summary judgment on this claim. The district court initially followed this recommendation, but, on reconsideration, granted summary judgment to the defendants, holding that (1) no evidence shows a causal link between the delay in treating the Hepatitis C infection and Salahuddin's complaints of pain and (2) the evidence shows that prison officials did not act with deliberate indifference, and at most mistakenly applied the DOCS twelve-month policy.

ANALYSIS

I. Mootness

As a preliminary matter, we must decide whether mootness deprives us of jurisdiction over any or all of Salahuddin's claims on appeal. In this circuit, an inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility. See Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir.1996) (per curiam); Young v. Coughlin, 866 F.2d 567, 568 n. 1 (2d Cir.1989); Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir.1976). Salahuddin is presently incarcerated in Oneida Correctional Facility, which is not one of the prison facilities in which the actions complained of here occurred, and therefore we hold moot all injunctive and declaratory claims against defendants other than Goord, Wright, Selsky, Knapp—David, Eagan, and "employees of New York State Department of Correctional Services."

At oral argument, Salahuddin abandoned some, but not all, of his claims for equitable relief. In response to our questions about mootness, Salahuddin's attorneys responded that Salahuddin no longer seeks injunctive relief as to his religious-liberty claims (which was not requested in the complaint, Salahuddin Compl. ¶¶ A-I) or declaratory relief as to his Eighth Amendment claim. Oral Arg. Recording at 10:46:30, 10:48:40. Because we remand this case only as to certain religious-liberty claims, Salahuddin's equitable relief, if any, will be limited to declaratory judgment. Of course, Salahuddin's right to seek damages is not affected.

II. Standard of Review

This court reviews de novo the district court's summary judgment, using the same standard as the district court: "summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998); see also GlobalNet Financial.com, Inc. v. Frank Crystal & Co., 449 F.3d 377, 381 (2d Cir.2006). In deciding whether there is a genuine issue of material fact, we must interpret all ambiguities and draw all factual inferences in favor of the nonmoving party. Ford v. McGinnis, 352 F.3d 582, 587 (2d Cir.2003). We may consider only the evidence before the district court, see DiBella v. Hopkins, 403 F.3d 102, 118 (2d Cir.2005), and summary judgment cannot be entered on the basis of factual statements only in the parties' briefs, see Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, 10A Federal Practice and Procedure § 2723, at 389 (3d ed.1998).

The moving party bears the initial burden of showing why it is entitled to summary judgment. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Where, as here, the nonmovant bears the burden of proof at trial, the movant may show prima facie entitlement to summary: judgment in one of two ways: (1) the movant may point to *273 evidence that negates its opponent's claims or (2) the movant may identify those portions of its opponent's evidence that demonstrate the absence of a genuine issue of material fact, a tactic that requires identifying evidentiary insufficiency and not simply denying the opponent's pleadings. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Farid v. Smith, 850 F.2d 917, 924 (2d Cir.1988); Wright et al., supra, § 2727, at 471-75. If the movant makes this showing in either manner, the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact. Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Like the movant, the nonmovant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.

III. Qualified Immunity

As an affirmative defense to monetary liability on both the religious-liberty and Eighth Amendment claims, the defendants seek the protection of qualified immunity. The doctrine of qualified immunity shields public officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Ruling on the qualified-immunity defense requires a two-step inquiry. First, we must consider whether the plaintiff's factual allegations, both those unchallenged and those as to which the record creates a genuine dispute, "show the [official's] conduct violated a constitutional [or statutory] right." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991)). This first inquiry is the same as the one that we undertake in assessing a summary-judgment motion.

If the assumed facts do not establish a violation, the defendant must be granted summary judgment. Id. On the other hand, if violation of a right can be shown, "the next, sequential step is to ask whether the right was clearly established," id., and, if it was, whether "the evidence is such that, even when it is viewed in the light most favorable to the plaintiff [ ] and with all permissible inferences drawn in [his] favor, no rational jury could fail to conclude that it was objectively reasonable for the defendant [ ] to believe that [he][was] acting in a fashion that did not violate a clearly established right," In re State Police Litig., 88 F.3d 111, 123 (2d Cir.1996).

IV. Salahuddin's Religious—Liberty Claims

Salahuddin's religious-liberty claims derive from two independent sources: § 3 of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc-1, and the Free Exercise Clause of the First Amendment. RLUIPA protects inmates by providing that a government shall not "impose a substantial burden" on the "religious exercise"1 of inmates in certain institutions unless the government shows that the burden furthers a compelling governmental interest by the least restrictive means. 42 U.S.C. § 2000cc-1(a). RLUIPA creates a private right of action for violations of § 3, id. *274 § 2000cc-2(a), and the defendants do not dispute the validity or applicability of § 3 in this case.2

The analysis of Salahuddin's free-exercise claims proceeds under a slightly different framework, set forth by the Supreme Court in O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). In O'Lone, the Court acknowledged that, although prisoners do not abandon their constitutional rights at the prison door, `[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system,'" id. at 348, 107 S.Ct. 2400 (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 S.Ct. 1356 (1948)); see also Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (making the same point). Accordingly, the Court held that a challenged prison regulation is judged "under a `reasonableness' test less restrictive than that ordinarily applied": a regulation that burdens a protected right passes constitutional muster "`if it is reasonably related to legitimate penological interests.'" O'Lone, 482 U.S. at 349, 107 S.Ct. 2400 (quoting Turner, 482 U.S. at 89, 107 S.Ct. 2254).3

Courts must evaluate four factors in making the reasonableness determination: whether the challenged regulation or official action4 has a valid, rational connection to a legitimate governmental objective; whether prisoners have alternative means of exercising the burdened right: the impact on guards, inmates, and prison resources of accommodating the right: and the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests. Turner, 482 U.S. at 90-91, 107 S.Ct. 2254. The first Turner "factor" is more properly labeled an "element" because it is not simply a consideration to be weighed but rather an essential requirement. See O'Lone, 482 U.S. at 350, 107 S.Ct. 2400 ("[A] regulation must have a logical connection to legitimate governmental interests...."); Turner, 482 U.S. at 89, 107 S.Ct. 2254 ("[T]here must be a valid rational connection...." (quotation marks omitted)); see also Sutton v. Rasheed, 323 F.3d 236, 253 (3d Cir.2003) (per curiam) ("The first [Turner] factor is foremost in the sense that a rational connection is a threshold requirement...." (quotation marks omitted)).

The prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious *275 beliefs. Ford, 352 F.3d at 591.5 The defendants then bear the relatively limited burden of identifying the legitimate penological interests that justify the impinging conduct: "the burden remains with the prisoner to `show that these [articulated] concerns were irrational.'" Id. at 595 (quoting Fromer v. Scully, 874 F.2d 69, 74 (2d Cir.1989)); see also Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 127-28, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (prison officials need only testify to the legitimate penological interests behind the challenged conduct to meet their burden of proof). We now turn to Salahuddin's specific claims.

A. Joint—Worship Claim

The defendants argue that, on the facts established by the record, Salahuddin fails as a matter of law to meet his prima facie burden of demonstrating that a defendant substantially burdened his right to free exercise of religion by not providing separate Sunni and Shi'ite Ramadan services. This may be so, but this argument is not properly before us because defendants did not raise it in the district court. Defs.' Mem. of L. in Supp. of Mot. for Summ. J. 27-28 (arguing, as it pertains to this claim, only that it was reasonable for prison officials to order joint Ramadan services); see Allianz Ins. Co. v. Lerner, 416 F.3d 109, 114 (2d Cir.2005) (refusing to consider an argument raised for the first time on appeal). Thus, we decline to consider the defendants' no-substantial-burden argument.

We also understand the defendants to argue that legitimate penological concerns about security, as well as fiscal, space, and staffing limitations, justified the joint Ramadan services of which Salahuddin complains. Again, that may be so, but the defendants have not pointed to anything in the record to show that they relied on legitimate penological justifications. Nor does our review of the record reveal any such evidence. Neither the district court nor this court can manufacture facts out of thin air. Without some support in the record, we cannot find that Woodbourne officials were worried that separate services would endanger inmates, or were short on space for separate services, or had some other reason for mandating the joint services. Rather, it is the defendants' duty on summary judgment to cite record evidence to this effect.

Although the facts at trial might show otherwise, at this stage, the unchallenged and unresolved factual allegations as viewed in the light most favorable to Salahuddin establish that Salahuddin's free-exercise rights were substantially burdened by a joint-worship policy not justified by a legitimate penological interest or, a fortiori, the compelling governmental interest required by RLUIPA. These facts show the violation of both Salahuddin's RLUIPA and First Amendment free-exercise rights. Qualified immunity is not appropriate at this stage because it was clearly established at the time of the alleged violations that prison officials may not substantially burden inmates' *276 right to religious exercise without some justification and because we cannot say as a matter of law that it was objectively reasonable for any defendant to believe that the facts as they stand on summary judgment showed no violation of a clearly established right. Accordingly, these issues remain to be resolved in further proceedings.

Salahuddin's declaration states that defendants Keane and Carrillo ordered the joint-worship services and that defendants Turbush, Goord, and Eagan were also involved in this violation. Salahuddin Decl. ¶¶ 35, 38, 43-44. Because the defendants did not raise, and the district court did not rule on, whether any of these defendants was sufficiently involved in the alleged constitutional violation to be personally liable under § 1983 or RLUIPA, we leave the issue to the district court to consider in the first instance. Thus, we vacate the judgment as to Keane, Carrillo, Turbush, Goord, and Eagan on this claim.

B. Keeplock Claim

The defendants fail to dispute on appeal several aspects of the keeplock claim. They do not contest Salahuddin's factual allegation that, while housed in disciplinary keeplock in Auburn and Attica, he was denied access to Islamic holiday services and prevented from receiving holiday meals in his cell.6 Nor do they dispute that these facts may satisfy the threshold requirement of a substantial burden on Salahuddin's religious exercise. The defendants do argue that denying Salahuddin the ability to observe these religious rites was reasonable in light of their legitimate penological —interest a compelling interest—in protecting inmate safety. After all, the defendants point out, Salahuddin was put in disciplinary keeplock for conspiring to assault another inmate who was also a member of the Muslim community at Woodbourne.

This argument has two flaws. First, it does not account for Salahuddin's undisputed factual allegation, Salahuddin Compl. ¶ 108, that prison officials substantially burdened his right to religious exercise by denying him religious meals in his cell. We fail to see, and the record does not establish, how denying Salahuddin in-cell meals (as opposed to communal meals) could relate to an interest in avoiding inmate violence.

Second, the defendants do not point to any record evidence that suggests that the denial of religious exercise while in disciplinary keeplock at Auburn and Attica was actually viewed as preventing threats to inmate safety. Under both Turner and O'Lone, once a prisoner shows that a prison regulation impinges on a protected right, prison officials must show that the disputed official conduct was motivated by a legitimate penological interest. See O'Lone, 482 U.S. at 350, 351, 353, 107 S.Ct. 2400 (reviewing the testimony of prison officials about the administrative concerns that motivated the challenged *277 regulation and their reasons for rejecting other means of accommodating the burdened religious exercise); Turner, 482 U.S. at 87, 91, 93, 97-98, 107 S.Ct. 2254 (repeatedly looking to the record to find reasons for the disputed prison regulations). Post hoc justifications with no record support will not suffice.

The record here supports the defendants' point that Salahuddin was confined to disciplinary keeplock as punishment for conspiring in the assault on inmate Wilson, a member of the Muslim community at Woodbourne. Salahuddin's sworn declaration says as much. Salahuddin Decl. ¶¶ 45, 50, 54, 61. And, of course, prison officials have a duty to prevent threats to other prisoners' safety. But the Supreme Court requires the government to close the circle —prison officials must have been pursuing the interest in inmate safety when limiting Salahuddin's religious exercise. The defendants' burden on summary judgment is to "point[ ] to [something] in the record suggesting that the [denial of religious exercise] was viewed as preventing [threats to inmate safety]." Turner, 482 U.S. at 98, 107 S.Ct. 2254 (emphasis added). This requirement makes good sense because it ensures that prison officials actually had, not just could have had, a legitimate reason for burdening protected activity. We would not be surprised if such evidence were forthcoming at trial (at least as to the denial of congregate worship), but it is absent from the record as presently developed.

The two Second Circuit cases on prisoner "keeplock claims" confirm our holding. In Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.1989), we reversed the dismissal of a First Amendment free-exercise claim because the existence of a justifying legitimate penological interest was not revealed by the record. In language applicable here, we explained that "the district court should not have dismissed appellant's [F]irst [A]mendment claim without requiring prison officials to establish the basis for the [F]irst [A]mendment restrictions imposed." Id.

The defendants seek shelter in our decision in Salahuddin v. Jones, 992 F.2d 447 (2d Cir.1993) (per curiam), which affirmed the dismissal of a prisoner's free-exercise claim premised upon an exclusion from congregate worship services while in disciplinary keeplock. To be sure, Salahuddin dealt with circumstances similar to those in this case, but that opinion, while not explicit on the point, indicates that inmate safety was "the state's purpose" for prohibiting the religious exercise. Id. at 449. In the present case, however, Salahuddin was placed in keeplock for conspiring to assault Wilson, an inmate at Woodbourne. There is no indication in the record that Wilson was an inmate at Auburn or Attica when Salahuddin was at those institutions or that prison officials believed that Salahuddin posed a threat to the safety of any other inmate or to inmates in general at Auburn or Attica. Accordingly, defendants here, unlike in Salahuddin, have not offered record evidence from which we can conclude that they had a legitimate purpose in burdening the plaintiff's religious exercise by keeping him in keeplock while he was an inmate at Auburn or Attica.

In sum, the defendants have not provided sufficient justification to uphold the summary judgment on Salahuddin's keeplock claim. The facts, viewed in the light most favorable to Salahuddin, show a violation of his free-exercise rights by exclusion from religious services and denial of in-cell religious meals for no permissible reason. Nor is summary judgment on the basis of qualified immunity appropriate; the disputed rights were clearly established at the time of the alleged violations and we cannot say, as a matter of law, that *278 the conduct described by the factual allegations would be reasonably perceived as constitutional.

Salahuddin identifies defendants Cochran, Walker, Herbert, Goord, Wright, and Eagan as responsible for the alleged keeplock violation by virtue of their inaction after Salahuddin's complaints. Salahuddin Decl. ¶¶ 73, 79. Allowing the district court to consider in the first instance the personal involvement of these defendants, we vacate the judgment as to Cochran, Walker, Herbert, Goord, Wright, and Eagan on this claim.

C. Qur'an/Chaplain Claim

The defendants failed to mention the Qur'an/chaplain claim in their motion for summary judgment in district court, Defs.' Mem. of L. in Supp. of Mot. for Summ. J. 24-28, and therefore they never showed prima facie entitlement to summary judgment on it. Thus, we vacate the judgment as to all defendants on this claim. This failure perhaps explains why the magistrate judge did not discuss the claim in his report, much less recommend whether summary judgment should be granted or denied on it, and why the district court (apparently inadvertently) dismissed the claim in its judgment although purporting in its memorandum and order to adopt the magistrate judge's report.

D. Legal—Mail Claim

To draw into dispute Salahuddin's factual allegations on the legal-mail claim, the defendants point to defendant Frey's sworn declaration describing the events underlying the claim. Although Salahuddin claims that Frey refused to admit Salahuddin into a religious service while carrying legal mail and would not allow Salahuddin temporarily to store the mail outside the service hall, Frey's declaration establishes that Salahuddin was offered the choice of leaving the letter outside the service hall or going back to his cell to leave behind the letter and returning to join the service. Salahuddin received adequate notice that he needed to submit affidavits or other admissible evidence to create a genuine factual dispute on his claims, see Notice to Pro Se Litigant Opp. Mot. for Summ. J., Docket No. 54; S.D.N.Y. R.C.P. 56.2, but he points only to his unsworn complaint to dispute Frey's version of events. Thus, we accept Frey's account of the facts. See Matsushita Elec. Corp., 475 U.S. at 586, 106 S.Ct. 1348. Faced with the defendants' argument that Salahuddin shows no burden on his religious exercise from Frey's conduct, Salahuddin points to nothing in the record to show a genuine issue to be tried as to the burden element. Thus, summary judgment for the defendants on this claim was proper.

E. Law—Library Claim

The defendants do not contest that defendant Stanton denied Salahuddin attendance at Ramadan meals and services on days that Salahuddin chose to use the law library. And they do not dispute that the denial substantially burdened Salahuddin's religious exercise. Indeed, the defendants do not even argue that they are entitled to judgment as a matter of law because they have a legitimate penological reason for this denial. Thus, we easily hold that because the defendants do not point to any record evidence establishing a reason for the burden, they are not entitled to summary judgment on Salahuddin's law-library claim.

The two arguments raised by the defendants are meritless and warrant only brief treatment. First, the defendants argue that "[t]he denial of attendance at religious services was the product of Salahuddin's own decision that going to the law library *279 each day was more important to him than attending the religious services." This is true, but beside the point. The pertinent question is why Salahuddin was put to this choice. One can imagine that a prison official could supply an answer to this question (time constraints, the cost of personnel, etc.), but we are provided with none.

Second, the defendants argue that summary judgment should be affirmed because Salahuddin does not present evidence that his law-library attendance was necessary to avoid prejudicing a particular legal claim. Again, this misses the point. Even if the activity triggering the denial of Salahuddin's ability to attend religious services was plainly irrelevant to his constitutional rights—such as having a second helping of dessert—our analysis would remain the same because the pertinent question remains unanswered: what penological interest lay behind the policy that excluded this inmate from religious services?

We hold that the facts, viewed in the light most favorable to Salahuddin, show a violation of his free-exercise rights: he was excluded from religious services without reason when he used the law library. Summary judgment on the basis of qualified immunity is not appropriate because it was clearly established law at the time of the alleged violations that religious exercise may not be denied without any reason. Along with defendant Stanton, Salahuddin identifies defendants Herbert, Goord, Wright, and Eagan as responsible for this alleged violation by virtue of their denial of Salahuddin's grievance. Salahuddin Decl. ¶ 81. Leaving the personal involvement of these defendants to the district court for analysis in the first instance, we vacate the judgment as to Stanton, Herbert, Goord, Wright, and Eagan on this claim.

V. Salahuddin's Eighth Amendment Claim

Although we would not normally feel the need to review the legal framework for an Eighth Amendment claim complaining of cruel and unusual punishment, both parties' briefs reveal a partial misunderstanding of this framework (requiring us to recast some of their arguments), so we think it advisable to do so here before addressing in full their arguments. The Cruel and Unusual Punishments Clause of the Eighth Amendment imposes a duty upon prison officials to ensure that inmates receive adequate medical care. Farmer v. Brennan, 511 U.S. 825, 832, 844, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Yet not every lapse in medical care is a constitutional wrong. Rather, "a prison official violates the Eighth Amendment only when two requirements are met." Id. at 834, 114 S.Ct. 1970.

The first requirement is objective: the alleged deprivation of adequate medical care must be "`sufficiently serious.'" Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). Only "deprivations denying `the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson, 501 U.S. at 298, 111 S.Ct. 2321 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Determining whether a deprivation is an objectively serious deprivation entails two inquiries. The first inquiry is whether the prisoner was actually deprived of adequate medical care. As the Supreme Court has noted, the prison official's duty is only to provide reasonable care. See Farmer, 511 U.S. at 844-47, 114 S.Ct. 1970. Thus, "prison officials who act reasonably [in response to an inmate-health risk] cannot be found liable under *280 the Cruel and Unusual Punishments Clause," id. at 845, 114 S.Ct. 1970, and, conversely, failing "to take reasonable measures" in response to a medical condition can lead to liability, id. at 847, 114 S.Ct. 1970.

Second, the objective test asks whether the inadequacy in medical care is sufficiently serious. This inquiry requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner. See Helling v. McKinney 509 U.S. 25, 32-33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (holding that prisoners may complain about both current harm and "very likely" future harm). For example, if the unreasonable medical care is a failure to provide any treatment for an inmate's medical condition, courts examine whether the inmate's medical condition is sufficiently serious. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir.2003).

Factors relevant to the seriousness of a medical condition include whether "a reasonable doctor or patient would find [it] important and worthy of comment," whether the condition "significantly affects an individual's daily activities," and whether it causes "chronic and substantial pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quotation marks omitted). In cases where the inadequacy is in the medical treatment given, the seriousness inquiry is narrower. For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry "focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone." Smith, 316 F.3d at 185 (emphasis omitted). Thus, although we sometimes speak of a "serious medical condition" as the basis for an Eighth Amendment claim, such a condition is only one factor in determining whether a deprivation of adequate medical care is sufficiently grave to establish constitutional liability.

The second requirement for an Eighth Amendment violation is subjective: the charged official must act with a sufficiently culpable state of mind. Wilson, 501 U.S. at 300, 111 S.Ct. 2321 (reasoning that "some mental element must be attributed to the inflicting officer" before the harm inflicted can qualify as "punishment"). In medical-treatment cases not arising from emergency situations, the official's state of mind need not reach the level of knowing and purposeful infliction of harm: it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health. Id. at 302, 111 S.Ct. 2321. Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law. Farmer, 511 U.S. at 839-40, 114 S.Ct. 1970. This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result. Id. at 836-37, 114 S.Ct. 1970. Although less blameworthy than harmful action taken intentionally and knowingly, action taken with reckless indifference is no less actionable. The reckless official need not desire to cause such harm or be aware that such harm will surely or almost certainly result. Rather, proof of awareness of a substantial risk of the harm suffices. Id. at 835, 842, 114 S.Ct. 1970. But recklessness entails more than mere negligence; the risk of harm must be substantial and the official's actions more than merely negligent. Id. at 835-37, 114 S.Ct. 1970; see Wayne R. LaFave, Substantive Criminal Law §§ 5.4(a) (1), 5.4(f), at 365-80 (2d ed.2003) (contrasting the risk of harm encompassed by the concepts of recklessness and negligence).

*281 The charged official must be subjectively aware that his conduct creates such a risk. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Prison officials may, of course, introduce proof that they were not so aware, such as testimony that "they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent." Id. at 844, 114 S.Ct. 1970. Thus, in Johnson v. Wright, 412 F.3d 398, 404 (2d Cir.2005), we held that a jury could infer the absence of a sufficiently culpable state of mind if the jury believed that the defendant denied the plaintiff medical treatment "because the defendant [ ] sincerely and honestly believed ... that applying [a prison policy mandating the denial of treatment] was, in plaintiff's case, medically justifiable." Johnson, 412 F.3d at 404. The defendant's belief that his conduct poses no risk of serious harm (or an insubstantial risk of serious harm) need not be sound so long as it is sincere. Thus, even if objectively unreasonable, a defendant's mental state may be nonculpable.

A. Dr. Piazza

Salahuddin reiterates on appeal his argument made to the district court that Dr. Piazza's cancellation of his liver biopsy constitutes cruel and unusual punishment in violation of the Eighth Amendment. Brief in Opp. to Defs.' Summ. J. Mot. 11. The parties dispute whether Piazza ever deprived Salahuddin of adequate medical care. We cannot, as a matter of law, find it reasonable for a prison official to postpone for five months a course of treatment for an inmate's Hepatitis C because of the possibility of parole without an individualized assessment of the inmate's actual chances of parole.

We also presume, for purposes of this appeal, that the five-month delay caused sufficiently serious harm. Salahuddin's brief cites evidence that he suffered pain between February and July 2001—the period between the cancellation of the biopsy by Piazza and its reinstatement by Wright—and thus we believe Salahuddin has made a sufficient case on appeal that the five-month delay was objectively serious. Because the defendants do not respond to this argument on appeal,7 they have forfeited for purposes of this appeal any rebuttal that the delay was insufficiently serious. We agree with Salahuddin therefore that there is at least a genuine factual question as to the adequacy of Piazza's medical care. However, for the reasons that follow, we cannot conclude that that factual question constitutes a material issue precluding the grant of summary judgment, because where there is an absence of sufficient proof as to one essential element of a claim, any factual disputes with respect to other elements of the claim are immaterial and cannot defeat a motion for summary judgment. See, e.g., Celotex, 477 U.S. at 322-32, 106 S.Ct. 2548.

As discussed, Salahuddin's claim against Piazza has both objective and subjective elements, and we conclude, upon reviewing the record evidence, that there is no genuine factual issue to be tried as to the subjective element, i.e. whether Piazza was aware of a substantial risk that his conduct would cause serious harm (and therefore acted with deliberate indifference). The evidence in Piazza's favor comes in the form of a letter, dated March 20, 2001, written by him to Lakeview Superintendent Moscicki in response to Salahuddin's *282 grievance. In the letter, Piazza expresses his belief that because Hepatitis C leads to cirrhosis only over 20 to 30 years, Salahuddin "is in no immediate danger" and that "f[ro]m a medical standpoint [,] there is no urgency for [the cancelled liver biopsy]." This may have been an unsound conclusion absent an investigation into the progression of Salahuddin's Hepatitis C, but, as we have discussed, the mental-state inquiry does not include an objective-reasonableness test. Piazza's letter is direct evidence that he was not aware of a substantial risk that postponing the liver biopsy would cause serious harm.

The record contains no circumstantial evidence to contradict this conclusion. Unlike in Johnson, which concerned allegations similar to those here, there is no record evidence that any physician ever informed Piazza that it would be harmful to cancel the scheduled liver biopsy. cf. Johnson, 412 F.3d at 404. And we find unpersuasive Salahuddin's point that Piazza did not take any steps to investigate the medical propriety of cancelling the biopsy because it draws on only an incomplete analogy to Johnson. A complete analogy to Johnson, which implements the idea of willful blindness, would require that someone have aroused Piazza's suspicion that postponing the biopsy rather than allowing treatment to proceed would be seriously harmful. See id. at 404-05. While willful blindness to a risk might suggest awareness of the risk, simple blindness does not, and leads only to a finding of unactionable negligence.

In sum, we hold that the record evidence does not raise a genuine factual question concerning whether Piazza acted with a sufficiently culpable mental state. On a motion for summary judgment, unlike on a motion to dismiss, cf. McKenna v. Wright, 386 F.3d 432, 437 (2d Cir.2004), Salahuddin must actually point to record evidence creating a genuine dispute as to those specific facts. This he has not done. Accordingly, summary judgment in Piazza's favor is proper.

B. Dr. Wright

Salahuddin argues in his reply brief that supervisory liability attaches to Dr. Wright for his role in promulgating the disputed DOCS policy. This claim fails because Salahuddin has not raised a triable question as to whether unconstitutional practices occurred under the guideline. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (holding that supervisory liability attaches if an official "created a policy or custom under which unconstitutional practices occurred").

C. Unidentified Defendants

Salahuddin tersely argues that summary judgment was inappropriate for other "secondary" reasons, namely, the denial of treatment while Salahuddin was in disciplinary segregation, the delay in the prescription and approval of Rebetron medication, and the choice of Rebetron, with its nationwide waiting list, rather than another treatment. Our response is similarly terse: Salahuddin's brief never ties any of these alleged deprivations of adequate medical care to the conduct of any defendant. Thus, even if these delays and decisions amount to inadequate medical care, there is no basis for vacating summary judgment as to any defendant.

CONCLUSION

For the foregoing reasons, we vacate the district court's judgment to the extent that it grants summary judgment (1) on Salahuddin's claims for damages and declaratory relief against (a) defendants Goord and Eagan on the joint-worship, keeplock, and law-library claims: (b) defendant Wright on the keeplock and law-library claims: *283 and (c) all DOCS-level defendants on the Qur'an/chaplain claim: and (2) on Salahuddin's claims for damages against (a) defendants Keane, Carrillo, and Turbush on the joint-worship claim: (b) defendants Walker and Cochran on the keeplock claim: (c) defendant Stanton on the law-library claim: and (d) all prison-level defendants on the Qur'an/chaplain claim. We affirm the judgment in the defendants' favor as to all other claims and remand the case for further proceedings consistent with this opinion.