Opinion
Case No. 2:19-cv-01207
01-21-2020
JOHN DALE PREACHER, Plaintiff v. CORRECT CARE SERVICES, et al. Defendants
CATHY BISSOON UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION ECF NO. 9 I. Recommendation
It is respectfully recommended that the Court deny Plaintiff's motion for preliminary injunction (ECF No. 9). II. Report
A. Introduction
Plaintiff John Dale Preacher (Preacher), an individual currently incarcerated at the Pennsylvania State Correctional Institution at Greene (SCI-Greene), commenced this § 1983 civil rights action against Correct Care Services (Correct Care) and thirty-one individual defendants. The thirty-one individual defendants are either Pennsylvania Department of Corrections employees or medical service personnel at SCI-Greene. Preacher's three hundred ninety-seven-page complaint (ECF No. 1) and correspondingly lengthy motion for temporary restraining order/preliminary injunction and related filings (ECF Nos. 9, 16, 18) assert that the Defendants have subjected him to a "reign of terror" that includes (1) denial of necessary medical care for a hand injury and related conditions, (2) adulteration of his food with unknown foreign substances that are making him ill, (3) denial of blood tests to identify the foreign substances that have been placed in his food, (4) ongoing sexual abuse and assaults by corrections officers, (5) continuation of his confinement in the Security Threat Group Management Unit (STGMU) in retaliation for filing grievances and lawsuits, (6) interference with his mail to the Court, and (7) theft of funds from his inmate account. Preacher asserts that the Defendants' conduct has resulted in violations of his rights under the First, Eighth, and Fourteenth Amendments to the Constitution. The undersigned conducted an evidentiary hearing Preacher's motion for preliminary injunction on January 17, 2020. In addition to Preacher's testimony and proffers by counsel for the medical defendants and counsel for the DOC defendants, the undersigned also received certain of Preacher's medical records, copies of which will be filed of record once any confidential or otherwise protected materials are redacted.
B. Analysis
1. Preacher has not demonstrated a likelihood of success on the merits or threatened irreparable harm regarding the alleged deficiencies in the treatment of his hand injury.
Prior to being transferred to SCI-Green on December 11, 2018, Preacher was incarcerated at SCI-Somerset. While there, he sustained a hand injury that included a dislocation or subluxation of his right arpometacarpal (CMC) joint, which is located where the base of his right thumb meets his wrist. On March 20, 2018, following his transfer to SCI-Greene, prison personnel transported Preacher to Allegheny Orthopaedic Associates (AOA) in Pittsburgh, Pennsylvania, for follow-up assessment and treatment of the injury. X-rays confirmed the injury and subsequent degenerative changes to Preacher's hand. AOA discussed possible surgery with Preacher but recommended using a splint to immobilize the wrist to "see if we can get this to settle down." Following this appointment, Preacher was provided with a custom splint for his hand. Preacher initially wore the splint for six weeks and experienced improvement. Later, however, he reported a return of his symptoms, which prompted prison personnel to transport him for another visit to AOA on March 19, 2019. During this visit, Preacher received an injection of Lidocaine and Celestone into his CMC joint and was prescribed another splint for immobilization of his wrist for a period of six weeks. Preacher's medical records reflect that he was "to follow up in 6 months for repeat evaluation." He was also prescribed ibuprofen to be taken as needed.
Following this appointment, Preacher has continued to use his split. Medical personnel at the prison provided Preacher with Voltaren (diclofenac), a nonsteroidal anti-inflammatory drug, for pain but this caused GI upset. Preacher currently takes Relafen, another NSAID for pain. Preacher was scheduled to return to AOA for reevaluation on January 18, 2020, but this appointment was postponed because it conflicted with a court hearing scheduled in this case. Counsel for Correct Care advised the Court that medical personnel at SCI-Greene are in the process of rescheduling the follow-up appointment at AOA and that the date would be set without delay.
The undersigned advised Preacher and counsel that he would have readily rescheduled the hearing had they advised him of the conflict with the AOA appointment and suggested they request a continuance of any proceeding that conflicts with a medical appointment or procedure should such a conflict arise in the future. --------
Although Preacher claims irreparable harm from a denial of medical care, the evidence more accurately reflects a disagreement with the treatment he has received. As such, the evidence does not support an Eighth Amendment violation. See, e.g., Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (disagreement over proper medical treatment insufficient to state Eighth Amendment claim). The record demonstrates that Preacher has received and is scheduled to continue to receive evaluation and treatment of his hand injury. The treatment provided to date has not been shown to be plainly inadequate or unreasonable. Because Preacher has demonstrated neither a likelihood of success on the merits of this claim nor threatened irreparable harm based upon his current care, it is recommended that the Court deny any form of injunctive relief as to this claim.
2. Preacher has not shown a likelihood of success on the merits or threatened irreparable harm regarding his claim that prison personnel are adulterating his food or based on their denial of his demand for testing of his blood for toxins.
Preacher alleges that corrections officers at SCI-Greene are placing substances in his food tray that are making him ill. Preacher bases this allegation exclusively upon the fact that he has on multiple occasions experienced nausea and vomiting after eating food delivered to his cell. He also asserts that corrections officers have a motive to poison him because of the many grievances and lawsuits he has filed against them and other prison personnel. Preacher requests mandatory injunctive relief that includes removal of several corrections officers, his reassignment to another housing unit, and a directive that the medical department draw and test his blood to identify the toxins that have been placed in his food. The requested relief should be denied in its entirety. In addition to being wildly speculative, Preacher's theory is also implausible based on the evidence. Preacher admitted that he has never observed anyone place a foreign substance in his food. In addition, DOC counsel proffered that food trays are prepared by other inmates in the dietary department, not corrections officers, and that corrections officers have no control over which inmate receives which tray. Although Preacher testified that corrections officers deliver the trays to inmates, this short window of possession is not sufficient to establish a likelihood that poisoned Preacher's food or that they are likely do so in the future. "Although the plaintiff need not prove [his] case with airtight certainty, the moving party nevertheless bears a heavy burden on a motion for a preliminary injunction of establishing a reasonable probability of success on the merits." Burton v. Wetzel, 2017 WL 4284345, at *8 (M.D. Pa. Sep. 27, 2017) (internal citations, quotations, and additions omitted). This burden if "particularly heavy" where the requested injunction "is directed not merely at preserving the status quo but ... at providing mandatory relief." Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980). Preacher has not met his burden in this case.
Further, Preacher's medical records reflect a much more likely explanation for his digestive distress: gallstones. Preacher has been seen by the medical department following the episodes of which he complains. Medical personnel have advised him that blood tests would not reveal any medically useful information. Instead, based upon Preacher's complaints, they scheduled him for a grayscale and color doppler sonogram of his abdomen on November 26, 2019. The report from this test lists the following two impressions: "hepatic steatosis [fatty liver condition] without sonographic demonstration of focal liver mass," and "cholelithiasis [gallstones] without sonographic demonstration of acute cholecystitis [inflammation of the gallbladder]." The medical department has provided treatment for these conditions and advised Preacher that they are likely the cause of his digestive distress.
3. Preacher has not shown a likelihood of success on the merits or threatened irreparable harm regarding his claim that prison personnel are sexually abusing and assaulting him.
Despite their length, Preacher's Complaint and motion for injunctive relief include very little factual detail concerning the precise conduct upon which he bases his claims. This is particularly true with respect to his claims of sexual assault and abuse. Based upon his testimony at the hearing, these claims have no factual merit. Preacher did not identify a single instance of assault or inappropriate touching by a corrections officer. He identified instances when he has been subjected to a strip searches and testified that certain corrections officers who observed or video recorded the search made inappropriate comments about his body or leered or winked at him during the search. While offensive and inappropriate, none of the conduct described by Preacher rises to the level of sexual abuse or assault or other grounds for a claim under the Eighth Amendment. "[S]exual harassment in the absence of contact or touching does not establish an Eighth Amendment violation." Washington v. Gilmore, 2017 WL 4155371, at *7 (W.D. Pa. Aug. 31, 2017), report and recommendation adopted, 2017 WL 4155421 (W.D. Pa. Sept. 18, 2017) (citing Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000)). "Verbal harassment, including lewd comments, sexual propositioning, and the like, is not sufficient to satisfy the objective element of an Eighth Amendment sexual harassment claim." Id. (citing Manon v. Garrison, 2012 WL 3542328 (M.D. Pa. Aug. 15, 2012)). To satisfy the objective element of an Eighth Amendment claim, "physical sexual assault or threats of physical assault is required...." Id. (citing Chambliss v. Jones, 2015 WL 328064 (M.D. Pa. Jan. 26, 2015)). Preacher has identified no such conduct or any basis for believing such is likely to occur in the future. Accordingly, he has not demonstrated a probability of success on the merits of this claim or a threat of irreparable harm.
4. Preacher has not shown a likelihood of success on the merits or threatened irreparable harm regarding his claim that he is being wrongfully maintained in the STGMU.
Preacher asserts that he is being "held hostage" in the STGMU. As discussed in the context of prior unrelated litigation, the STGMU was initiated at SCI—Greene to "enable the facility to identify, house and provide particularized programming for inmates 'who exhibit certain disruptive or violent behaviors in connection with or because of their affiliation with a Security Threat Group (STG)—commonly referred to as gangs.'" Douglas v. McAnany, 2012 WL 6763586, at *2 (W.D. Pa. Dec. 21, 2012) (record citation omitted), report and recommendation adopted sub nom. Reid-Douglas v. McAnany, 2013 WL 42377 (W.D. Pa. Jan. 3, 2013). "The program 'has multiple phases of programming and privileges ... which are designed in part to assist the inmate in improving his behavior and take steps toward being able to return to a general population setting, and get out of perpetual DC or AC status in the RHU.'" Id.
STGMUs like the one maintained at SCI-Greene further the specific and legitimate penological interest of reducing the risk of violence presented by certain inmates. Fraise v. Terhune, 283 F.3d 506, 520-523 (3d Cir.2002). An inmate's transfer to the STGMU does not violate his substantive due process rights. Id. Further, an inmate assigned to the STGMU has procedural remedies available to challenge that assignment. Douglas, 2012 WL 6763586, at *3. Accordingly, Preacher cannot demonstrate a likelihood of success on the merits of a substantive or procedural due process claim based upon continuation in the STGMU. And, Preacher has offered no evidence that his continued assignment to that unit presents a threat of immediate or irreparable harm or that conditions in the STGMU are materially more onerous than typical prison conditions.
5. Preacher has not shown a likelihood of success on the merits or threatened irreparable harm regarding his remaining "interference with mail" and "theft of funds" claims.
Preacher's final two identifiable claims are based upon allegations that certain of his submissions to the Court were delayed or not received and that funds, specifically $4.00, was wrongfully withdrawn from his prison account and not re-deposited. Preacher has not identified who he believes tampered with his mail to the Court or any evidence to support that the alleged missing or delayed filings were the result of any person's intentional misconduct. Accordingly, Preacher has not demonstrated a likelihood of success on the merits of this claim. He likewise has not shown any actual prejudice or harm resulting from the missing or delayed filings or any threat of irreparable harm in the future. Preacher testified that he is concerned that future missed filings may result in the dismissal of his lawsuits for failure to prosecute. This concern is purely speculative and ignores the Court's strong preference for addressing and deciding claims, particularly those of pro se litigants, on the merits rather than rejecting them based solely on curable procedural defects. Further, in the unlikely event Preacher were to suffer some prejudice in the future due to a late or missing filing, procedural tools would be available to him to obtain reconsideration or correction of any resulting erroneous or inequitable court action. Finally, while the basis for Preacher's claim that $4.00 needs to be refunded to his prison account remains unclear, it is certain that such monetary claims are not appropriate for injunctive relief. See Simpler Consulting, Inc. v. Wall, 2008 WL 763746 (W.D. Pa., March 21, 2008) (where a plaintiff asserts a right to money damages, it is axiomatic that he has an adequate remedy at law, and injunctive relief is not permitted).
D. Conclusion
For these reasons, Preacher's motion for preliminary injunction (ECF No. 9) should be DENIED. III. Notice
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections within fourteen (14) day of the date of this Report and Recommendation. The failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may respond to the objections within 14 days thereafter in accordance with Local Rule 72.D.2.
Respectfully submitted this 21st day of January, 2020.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge