Opinion
CIVIL ACTION 03-1005
August 27, 2003
ORDER-MEMORANDUM
AND NOW, this 27th day of August, 2003, IT IS HEREBY ORDERED that this Court's Order dated June 24, 2003 (Doc. No. 17) denying Plaintiff's Motion for Temporary Restraining Order is VACATED. IT IS FURTHER ORDERED that Plaintiff's Motion for Temporary Restraining Order (Doc. No. 9) is DENIED.
Pro se Plaintiff Gregory Alexander Demeter filed a Motion for Temporary Restraining Order ("TRO") seeking to be moved back to Northampton County Prison, in Easton, Pennsylvania, where he was originally incarcerated, from C.F.C.F. in Philadelphia, Pennsylvania, where he was transferred. Plaintiff alleges that he was transferred from Northampton County Prison by the prison warden, Defendant Todd Buskirk, in retaliation for civil actions he has filed against Defendants. In his TRO Motion, Plaintiff alleged that he suffers from: (1) deprivation of access to the law library and the courts, including phone access to any courts; (2) threats to his physical person because he is from another county; and (3) lock downs due to riots, which then preclude his movement.
By Order dated June 24, 2003, the Court denied Plaintiff's TRO on the basis that: (1) he failed to show a reasonable probability of success on the merits because, as a prisoner, pursuant to Meachum v. Fano, 427 U.S. 215, 224 (1976), he has no constitutional right to be housed in a particular correctional facility; and (2) he failed to show immediate irreparable harm regarding his alleged harm of deprived access to the law library and courts and threats of physical harm to his person. The Court found that Plaintiff offered no evidence that he was denied access to the courts or legally harmed by lack of access to the law library, as he has been able to prosecute the three civil actions pending in this Court at that time, and participated in a telephone conference with the Court and Defendants regarding those actions on June 10, 2003. The Court also found that Plaintiff failed to show immediate, irreparable harm resulting from alleged threats to his physical person, due to his being from another county, as he offered no specific facts or instances of such threats.
Plaintiff then filed a "Motion to Vacate Judgment," which the Court treated as a Motion for Reconsideration of its June 24, 2003 Order denying his TRO. In his Motion for Reconsideration, Plaintiff instructed the Court that he is a pretrial detainee, not a convicted prisoner, and therefore is to be afforded increased constitutional rights when being transferred from one prison to another. Upon discovering that Plaintiff was a pre-trial detainee and not a convicted prisoner, the Court determined that Plaintiff, pursuant to Cobb v. Aytch, 643 F.2d 946, 957 (3d Cir. 1981), is to be afforded constitutional protections under the Sixth Amendment rights to counsel and to a speedy trial, and found that Plaintiff showed a probability of success on the merits. In its Order dated August 13, 2002, the Court nonetheless denied the Motion for Reconsideration because Plaintiff failed to allege any immediate irreparable harm, or even any allegations, of Sixth Amendment violations whatsoever.
After the Court entered its August 13, 2003 Order, it received Plaintiff's "Supporting Affidavit" (Doc. No. 21) alleging a lack of communication with his criminal defense attorney in his state case, that he cannot call his lawyer, and that his lawyer will not visit him. Because Plaintiff is proceeding pro se, the Court considered this late Affidavit and vacated its August 13, 2003 Order denying Plaintiff's Motion for Reconsideration. The Court held a hearing in open court with all parties on August 25, 2003, to address Plaintiff's TRO. Accordingly, the Court now vacates its original TRO Order dated June 24, 2003, and presently considers the TRO in light of the hearing and all submissions related to the TRO.
Before considering the TRO, the Court notes that the TRO is unrelated to any case Plaintiff has pending before the Court. At the time Plaintiff filed his TRO, three actions were pending before this Court, 03-CV-00790, 03-CV-01005, 03-CV-1027. All of these cases concern alleged events that occurred during an earlier time period when Plaintiff was at Northampton County Prison for a prior offense. Case number 03-CV-790 concerns access to the prison law library, obstruction/interception of legal mail, and obstruction of meaningful prison grievance, all relating to this original incarceration at Northampton County Prison. Case number 03-CV-1005 concerns allegations of excessive force resulting from two alleged assaults at Northampton County Prison. Case number 03-CV-1027 concerns an alleged denial and violation of Plaintiff s work-release status. Sometime after Plaintiff filed these three civil actions in this Court, he was released from Northampton County Prison. He was subsequently arrested for a different offense and was again incarcerated in Northampton County Prison. Within a few days, he was transferred to C.F.C.F., Philadelphia. It is that transfer that is the subject of his TRO. His three pending cases have nothing to do with his transfer. Notwithstanding, the TRO was docketed with these cases, and, because it is unrelated to these cases could be dismissed on this basis alone. Because Plaintiff proceeds pro se, the Court has allowed him great leeway and will address the issues raised in the TRO.
"When considering a motion for a temporary restraining order, the district court must decide: (1) whether the moving party has shown a reasonable probability of success on the merits; (2) whether the moving party will be irreparably harmed by the denial of relief; (3) whether granting the preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest." Wesley v. Vauahn, CIVIL ACTION No. 99-1228, 99-1229, 2003 U.S. Dist. LEXIS 7060, at *1 (E.D. Pa. Apr. 24, 2003) (citing Brian B. v. Pennsylvania Dep't of Edu., 230 F.3d 582, 583 (3dCir. 2000)). "All four factors should favor preliminary relief before the injunction will issue." Id. (citation omitted).
The Court finds that Plaintiff has failed to show a reasonable probability of success on the merits. In Cobb v. Aytch, 643 F.2d 946, 957 (3d Cir. 1981), the United States Court of Appeals for the Third Circuit ("Third Circuit") stated that pretrial detainees have a constitutionally protected right to a speedy trial and a right to effective assistance of counsel, both guaranteed by the Sixth Amendment to the United States Constitution. The Third Circuit held that in the absence of a pretrial detainee's consent to a transfer, a transfer "may not ordinarily be made until the untried defendant has received notice of the proposed transfer and an opportunity to be heard in a Pennsylvania tribunal independent of the prison system in opposition to it." Id. at 961. The Third Circuit recognized that emergency situations may arise involving the security of the institution in which transfers prior to a hearing must be permitted.Id. For those cases, the Third Circuit held, "a prompt post-transfer hearing in a Pennsylvania tribunal independent of the prison system is an appropriate accommodation between the federal liberty interests of the defendant and the emergency security concerns of the county prisons." Id. The Third Circuit noted, "We do not hold that the opportunity to be heard requires an evidentiary hearing, for in our view the pretrial detainee can be adequately heard by pleadings." Id. Here, Plaintiff was not given notice or an opportunity to be heard before his transfer, see Defs.' Resp. to TRO at 1, nor has Plaintiff made any attempt to pursue a state remedy since his transfer. In Cobb, the Third Circuit noted the district court's finding that the transfers of the pretrial detainees to distant prisons interfered with their right to effective assistance of counsel by removing them from potential witnesses and by interfering with what "counsel might have been able to do for them." Id. at 960. In Cobb, different classes of prisoners, including pre-trial detainees and convicted prisoners, were transferred from Philadelphia County prisons to five different Commonwealth correctional institutions, which were 200 miles, 120 miles, 300 miles, 201 miles and 90 miles, respectively, from Philadelphia. Here, Philadelphia, where Plaintiff was transferred to, is approximately 77 miles from Easton, Pennsylvania, where he was transferred from.
It should be noted that Plaintiff filed his pending civil actions in state court, but Defendants removed them to this Court. Plaintiff has never pursued a remedy regarding his TRO issues in state court.
Plaintiff has not shown any harm to his Sixth Amendment rights to effective assistance of counsel and a speedy trial resulting from the transfer, as is necessary for him to succeed on the merits. Plaintiff seems to argue that his presence in Philadelphia County rather than Northampton County necessarily affects his ability to prepare and present an adequate counseled defense. The distance of C.F.C.F., Philadelphia, in itself, however, does not provide a substantial likelihood of success on the merits of a deprivation of the rights secured to him by the Sixth Amendment. The distance between the prisons is only 77 miles and both prisons sit well within the Eastern District of Pennsylvania.
Moreover, Plaintiff has offered no evidence that his transfer has rendered counsel unable to assist him effectively. He alleges in his Supporting Affidavit that he suffers from a "total lack of communication with [his] criminal defense attorney;" that his lawyer will not visit him; that he "cannot get released on bail, due to [his] lawyer not replying to any of [his] letters, and requests to file motions on [his] behalf;" that his "pre-trial motion requests to [his] attorney are being ignored, because she [doesn't] answer any of [his] letters;" and that he cannot call his lawyer. (Pl.'s Aff. ¶¶ 3-8). Although his counsel may be ignoring his requests, there is no allegation and, more importantly, no evidence that Plaintiff's counsel is unable or even hampered in providing effective assistance of counsel. Plaintiff also presents no evidence whatsoever that his counsel's alleged actions have any connection with his location at C.F.C.F., Philadelphia, or with his being transferred. Further, there is no indication that the alleged failure of his attorney to respond to his requests would be any different if Plaintiff were housed at Northampton County Prison. Accordingly, considering the distance between Northampton County Prison and C.F.C.F., Philadelphia, and Plaintiff's failure to provide any evidence of ineffective assistance of counsel or denial of his right to a speedy trial as a result of his transfer, the Court finds that Plaintiff fails to show a deprivation of rights secured by the Sixth Amendment, and, therefore fails to show a reasonable probability of success on the merits.
If Plaintiff is having difficulty with his attorney, that is a matter between him and his attorney, and perhaps the state court presiding over his criminal case. Presently, this court has no jurisdiction over such an issue.
In addition, Plaintiff has not established that he is suffering or will suffer from immediate and irreparable harm as a result of being transferred. He only makes broad allegations of harm and in fact attributes that "harm" to his attorney's failure to respond to him. Any harm that Plaintiff alleges is a result of his counsel ignoring his requests to her. Plaintiff alleges, for example, "I cannot get released on bail, due to my lawyer not replying to any of my letters, and request to file motions on my behalf." (Pl.'s Aff. ¶ 6.) There is no evidence that his counsel's failure to proceed with his requests has any relationship to where he is incarcerated or that the transfer has harmed his right to a speedy trial. Accordingly, the Court finds that Plaintiff fails to make the necessary showing under this TRO factor as well.
In his Supporting Affidavit, Plaintiff also alleges that he is unable to receive papers in his father's possession that he needs for his pending civil actions. Plaintiff subsequently filed another TRO regarding this issue. At the hearing, by agreement of the parties, the Court resolved this issue and these allegations are therefore moot.
In his original TRO Motion, as noted, Plaintiff alleged that he suffered from: (1) deprivation of access to the law library and the courts, including phone access to any courts; (2) threats to his physical person because he is from another county; and (3) lock downs due to riots, which then preclude his movement. As a result of his Motion for Reconsideration, his Supporting Affidavit, and the Court's concomitant discovery that Plaintiff is a pretrial detainee, the Court's analysis necessarily concentrates on the success of the merits of his afforded constitutional protections under the Sixth Amendment. Nonetheless, the Court will address his other allegations originally set forth in his TRO.
An inmate must show that access to the law library hindered his efforts to pursue a legal claim. See, e.g. Anglemeyer v. Buskirk, CIVIL ACTION No. 02-0904, 2003 U.S. Dist. LEXIS 3122, at *3-4 (E.D. Pa. Feb. 13, 2003). Two examples that might suffice to make out an adequate claim are: "(1) `that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known;' and (2) `that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.'" Id. (citation omitted). InAnglemeyer, the court found that the allegation, "I have been unable to prepare my case in a proper manner which is prolonging my prison term," failed "to allege with the requisite degree of specificity in exactly what matter and manner his litigation was affected." Id. The court held that "without an explicit statement regarding a particular cause of action that was compromised," the prisoner' s complaint failed to allege an unconstitutional denial of access to the courts. Id. at *4.
In this case, Plaintiff has failed to allege any such hindrance to pursuit of a legal claim. In fact, Plaintiff has filed numerous submissions related to his civil actions pending with this Court and brought to the Court's attention his status as a pretrial detainee and the applicability of Cobb. Moreover, Plaintiff has not shown any other denial of access to the courts. He was able to participate in a telephone conference with this Court and all parties regarding his three pending cases on June 10, 2003, and was able to appear before this Court for the hearing.
Plaintiff has also failed to provide a scintilla of evidence regarding an alleged threat of harm to his physical person due to his being from another county and any support regarding "lock down due to riots upon which denied/precludes movement." (TRO ¶ 4(c)).
In order to grant injunctive relief, all four factors for a temporary restraining order must be present. Wesley v. Vaughn, 2003 U.S. Dist. LEXIS 7060, at *1. Plaintiff fails to show a reasonable probability of success on the merits and to show that he will be immediately irreparably harmed. Accordingly, the Court denies Plaintiff's Motion for TRO.