Opinion
Civil No. 1:18-CV-1965
03-06-2019
TERRELL WILSON, Plaintiff v. DAVID EBBERT, et al., Defendants.
(Judge Rambo)
( ) REPORT AND RECOMMENDATION
I. Factual Background
This case comes before us for consideration of a motion for preliminary injunction filed by the plaintiff, Terrell Wilson, a federal prisoner who is proceeding pro se. (Doc. 14.) This is actually the second motion for preliminary injunction filed in this case, an earlier motion having been denied by the district court.
By way of background, the original complaint in this matter was filed by a group of inmate-plaintiffs—Camden Barlow, Terrell Wilson, Christopher Alvarez, Nathan A. Railey, Juan C. Valles, and Doreteo Garcia—and asserted an Equal Protection claim, a First Amendment access to the courts claim, and a First Amendment enhanced mail restriction claim. Wilson et al. v. Ebbert, et al., No. 1:18-CV-716. In connection with this initial lawsuit, the plaintiffs filed a motion for preliminary injunction which was denied by this court on October 10, 2018. At the same time, the court ordered the claims of these plaintiffs severed into separate complaints.
On November 6, 2018, Wilson then filed this second motion for preliminary injunction. (Doc. 14.) Wilson's motion, while cryptic, alleged that prison officials had searched his cell on October 15, 2018, an act he deemed to be retaliatory, and sought a "preliminary and permanent injunction on USP Lewisburg's SIS Lieutenants, officers, and staff members from any further harassment and retaliation against me." (Doc. 14 at 1.) Thus, Wilson invites us to forbid or restrict cell searches of his cell while this lawsuit is pending. This invitation seems unwise given that the defendants have responded to this motion by denying that the search was retaliatory and noting that the search uncovered a homemade weapon hidden in Wilson's cell. (Doc. 21.)
Given this background, for the reasons set forth below, we recommend that this motion be denied.
II. Discussion
A. Preliminary Injunction Standards of Review
Inmate pro se pleadings, like those filed here, which seek extraordinary or emergency relief in the form of preliminary injunctions, are governed by Rule 65 of the Federal Rules of Civil Procedure and are judged against exacting legal standards. As the United States Court of Appeals for the Third Circuit has explained:
Four factors govern a district court's decision whether to issue a preliminary injunction: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief, (3) whether granting 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.Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994) (quoting SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir. 1985)). See also Highmark, Inc. v. UPMC Health Plan, Inc., 276 F.3d 160, 170-71 (3d Cir. 2001); Emile v. SCI-Pittsburgh, No. 04-974, 2006 WL 2773261, *6 (W.D.Pa. Sept. 24, 2006) (denying inmate preliminary injunction). A preliminary injunction is not granted as a matter of right. Kerschner v. Mazurkewicz, 670 F.2d 440, 443 (3d Cir. 1982) (affirming denial of prisoner motion for preliminary injunction seeking greater access to legal materials). It is an extraordinary remedy.
Given the extraordinary nature of this form of relief, a motion for preliminary injunction places precise burdens on the moving party. As a threshold matter, "it is a movant's burden to show that the 'preliminary injunction must be the only way of protecting the plaintiff from harm.'" Emile, 2006 WL 2773261, at * 6 (quoting Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992)). Thus, when considering such requests, courts are cautioned that:
"[A] preliminary injunction 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 (1997) (emphasis deleted). Furthermore, the Court must recognize that an "[i]njunction is an equitable remedy which should not be lightly indulged in, but used sparingly and only in a clear and plain case." Plain Dealer Publishing Co. v. Cleveland Typographical Union # 53, 520 F.2d 1220, 1230 (6th Cir. 1975), cert. denied, 428 U.S. 909 (1977). As a corollary to the principle that preliminary injunctions should issue only in a clear and plain case, the Court of Appeals for the Third Circuit has observed that "upon an application for a preliminary injunction to doubt is to deny." Madison Square Garden Corp. v. Braddock, 90 F.2d 924, 927 (3d Cir. 1937).Emile, 2006 WL 2773261, at *6.
Accordingly, for an inmate to sustain his burden of proof that he is entitled to a preliminary injunction under Rule 65, he must demonstrate both a reasonable likelihood of success on the merits, and that he will be irreparably harmed if the requested relief is not granted. Abu-Jamal v. Price, 154 F.3d 128, 133 (3d Cir. 1998); Kershner, 670 F.2d at 443. If the movant fails to carry this burden on either of these elements, the motion should be denied since a party seeking such relief must "demonstrate both a likelihood of success on the merits and the probability of irreparable harm if relief is not granted." Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989) (emphasis in original) (quoting Morton v. Beyer, 822 F.2d 364 (3d Cir. 1987)).
Further, where the requested preliminary injunction "is directed not merely at preserving the status quo but...at providing mandatory relief, the burden on the moving party is particularly heavy." Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980). Mandatory injunctions should be used sparingly. United States v. Price, 688 F.2d 204, 212 (3d Cir. 1982). Thus, a request for some form of mandatory proactive injunctive relief in the prison context "must always be viewed with great caution because judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration." Goff v. Harper, 60 F.3d 518 (3d Cir. 1995).
These limitations on the power of courts to enter injunctions in a correctional context are further underscored by statute. Specifically, 18 U.S.C. § 3626 limits the authority of courts to enjoin the exercise of discretion by prison officials, and provides that:
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.18 U.S.C. § 3626(a)(1)(A).
With respect to preliminary injunctions sought by inmates, courts are also instructed that:
Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity . . . in tailoring any preliminary relief.18 U.S.C. § 3626(a)(2).
Furthermore, several other basic legal tenets guide our discretion in this particular case, where an inmate: (1) seeks to enjoin a wide array of non-parties; and (2) requests relief which goes beyond merely preserving the status quo in this litigation, but seeks to impose new, mandatory conditions on prison officials. Each of these aspects of Wilson's prayer for injunctive relief presents separate problems and concerns.
For example, an injunction against non-parties, like the injunction sought here, requires a specific legal showing. To the extent that Wilson seeks to enjoin non-parties in this litigation it is clear that: "[a] non-party cannot be bound by the terms of an injunction unless the non-party is found to be acting 'in active concert or participation' with the party against whom injunctive relief is sought." Elliott v. Kiesewetter, 98 F.3d 47, 56 (3d Cir. 1996) (quoting Fed. R. Civ. P. 65(d)).
In addition, to the extent that the plaintiff seeks a preliminary injunction with some enduring effect, he must show that he will be irreparably injured by the denial of this extraordinary relief. With respect to this benchmark standard for a preliminary injunction, in this context it is clear that:
Irreparable injury is established by showing that Plaintiff will suffer harm that "cannot be redressed by a legal or an equitable remedy following trial." Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989) ("The preliminary injunction must be the only way of protecting the plaintiff from harm"). Plaintiff bears this burden of showing irreparable injury. Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848, 110 S. Ct. 144, 107 L.Ed.2d 102 (1989). In fact, the Plaintiff must show immediate irreparable injury, which is more than merely serious or substantial harm. ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). The case law provides some assistance in determining that injury which is irreparable under this standard. "The word irreparable connotes 'that which cannot be repaired, retrieved, put down again, atoned for ...'." Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir.1994) (citations omitted). Additionally, "the claimed injury cannot merely be possible, speculative or remote." Dice v. Clinicorp, Inc., 887 F.Supp. 803, 809 (W.D. Pa. 1995). An injunction is not issued "simply to eliminate the possibility of a remote future injury ..." Acierno, 40 F.3d at 655 (citation omitted).Messner, 2009 WL 1406986, at *4 .
Furthermore, in assessing a motion for preliminary injunction, the court must also consider the possible harm to other interested parties if the relief is granted. Kershner, 670 F.2d at 443. Finally, a party who seeks an injunction must show that the issuance of the injunctive relief would not be adverse to the public interest. Emile, 2006 WL 2773261, at * 6 (citing Dominion Video Satellite, Inc. v. Echostar Corp., 269 F.3d 1149, 1154 (10th Cir. 2001)).
B. Wilson is Not Entitled to a Preliminary Injunction
Judged against these legal guideposts, Wilson is not entitled to a preliminary injunction in this case at the present time. Indeed, Wilson's motion for preliminary injunction fails for a host of reasons.
First, this motion fails because Longo has not satisfied the first prerequisite for a preliminary injunction—he has not shown a reasonable probability of success on the merits. Quite the contrary, the district court has previously denied an earlier request for a preliminary injunction, and nothing about this cell search—which found a weapon in Wilson's cell—suggests that his likelihood of success in this litigation has improved.
Second, the matters described by Wilson do not describe a situation where the plaintiff faces imminent, irremediable harm. Rather, the potential harm in this case more likely arises from Wilson's possession of a weapon in prison. On this score Wilson's argument fails both legally and factually. First, with respect to this benchmark standard for a preliminary injunction, as a legal matter in this context it is clear that:
Irreparable injury is established by showing that Plaintiff will suffer harm that "cannot be redressed by a legal or an equitable remedy following trial." Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir.1989) ("The preliminary injunction must be the only way of protecting the plaintiff from harm"). Plaintiff bears this
burden of showing irreparable injury. Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989). In fact, the Plaintiff must show immediate irreparable injury, which is more than merely serious or substantial harm. ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.1987). The case law provides some assistance in determining that injury which is irreparable under this standard. "The word irreparable connotes 'that which cannot be repaired, retrieved, put down again, atoned for ...'." Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir.1994) (citations omitted). Additionally, "the claimed injury cannot merely be possible, speculative or remote." Dice v. Clinicorp, Inc., 887 F.Supp. 803, 809 (W.D.Pa.1995). An injunction is not issued "simply to eliminate the possibility of a remote future injury ..." Acierno, 40 F.3d at 655 (citation omitted).Messner, 2009 WL 1406986, at *4 .
In the instant case, Wilson has not demonstrated that the movant will be irreparably injured by denial of the relief. Instead, the matters described by Wilson all took place in October 2018, nearly six months ago, and there is simply no indication of an active, on-going constitutional infraction that warrants a preliminary injunction. Further, as a factual matter, the discovery of a homemade weapon in Wilson's cell strongly suggests that this search was justified, was compelled by considerations of institutional safety and security, and was necessary for the protection of others.
The discovery of this weapon in Wilson's cell also strongly suggests that the public's interest and the interests of the defendants are better served by refraining from entering any order in the nature of a preliminary injunction which limits the ability of prison officials to stake these security precautions. Thus, a balancing of both the public and other private interests also weighs heavily against Wilson's request for injunctive relief.
Finally, to the extent that Wilson seeks to enjoin non-parties in this litigation it is clear that: "[a] non-party cannot be bound by the terms of an injunction unless the non-party is found to be acting 'in active concert or participation' with the party against whom injunctive relief is sought." Elliott, 98 F.3d at 56 (quoting Fed. R. Civ. P. 65(d)). Wilson has made no such showing here of concerted wrongful conduct, nor can he given the immutable fact that this October 2018 search revealed a weapon in his cell.
In sum all of the discretionary factors we must consider under Rule 65 when evaluating a motion for preliminary injunction weigh against granting Wilson's the extraordinary preliminary injunctive relief he seeks. Therefore this motion for preliminary injunction should be denied.
II. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the plaintiff's motion for preliminary injunction, (Doc. 14), be DENIED.
The plaintiff is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 6th day of March 2019.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge