Opinion
Civil Action 20-512
02-18-2021
CORDIRO R. BROWN, Plaintiff, v. JOHN WETZEL, MALINDA ADAMS, RICHARD COON, and KARAN FEATHER, PHILLIP MCCRACKEN, PAMALA BEHR, and EMMANUELLA FELIX, Defendants.
Honorable Christy Criswell Wiegand, United States District Judge
REPORT AND RECOMMENDATION
RE: ECF NO. 139
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Cordiro R. Brown (“Plaintiff”), an inmate currently incarcerated at State Correctional Institution at Mercer (“SCI-Mercer”), brings this pro se civil rights action arising out of allegations that he is being harmfully exposed to tobacco smoke and e-cigarettes, is at risk of contracting COVID-19, and that Defendants engaged in retaliation and defamation. ECF No. 32.
Presently before the Court is Plaintiff's fifth Motion for Preliminary Injunction/Temporary Restraining Order (“Motion for Preliminary Injunction”). ECF No. 139. For the reasons that follow, it is respectfully recommended that the Motion for Preliminary Injunction should be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed the instant Motion for Preliminary Injunction on January 21, 2021. ECF No. 139. The motion arises out of misconducts he received in December 2018 and April 2019, which Plaintiff now seeks to preclude from consideration in determining whether he should receive parole. According to Plaintiff, he was issued two misconducts for communicating with the mother of his children, Emmanuella Felix (“Felix”), and serving her with legal documents. ECF No. 1391 ¶¶ 1-2. Plaintiff claims that he received these misconducts in retaliation for complaining about his living conditions. Id. ¶ 1. Because Plaintiff will be considered for parole in May 2021, he requests that the misconducts and any related documents be removed from his inmate record. ECF No. 139 ¶¶ 2-7. He also requests that Defendants and the parole board be prohibited from reviewing or considering the misconducts, or any information related to this action. Id. ¶ 8.
In support of this relief, Plaintiff argues that he will suffer harm if the parole board considers the retaliatory misconducts, and that he previously was denied parole in May 2020 for this reason. Id. ¶ 8. He states that he will succeed on the merits of his underlying retaliation claim, and he argues that Defendants will not suffer any harm from granting this relief. Id. ¶¶ 9-10. Finally, Plaintiff argues it would be in the public interest to grant his relief, because it will avoid the costs of a civil lawsuit, and it will “support the trust of Defendants and this court related to public trust and safety.” Id. ¶ 11.
Defendants filed a Response on February 1, 2021. ECF No. 147. Defendants argue that Plaintiff does not meet the standard for injunctive relief, because he is unable to establish a likelihood of success on the merits on his retaliation claim. Id. ¶ 18. In his Complaint, Defendants argue, Plaintiff asserts that he was issued the misconducts due to false information provided by Felix, whom this Court previously recommended should be dismissed from this action. Id. Defendants also argue that Plaintiff cannot show he will suffer irreparable harm if denied relief. Id. ¶ 19. As a non-party, Defendants argue, the parole board cannot be bound by the terms of an injunction absent circumstances that are not present here. Id. ¶ 20.
Plaintiff filed a Reply. ECF No. 156. In his Reply, Plaintiff argues that his retaliation claims have merit, based on his allegations that Defendants retaliated against him for complaining about his living conditions and filing a lawsuit against Felix. Id. at 1-2. He argues that the misconduct he received, and the information it relied upon, was false, and that Defendants knew he would be denied parole as a result. Id. at 2. Plaintiff also argues that Defendants do not challenge the irreparable harm he will face if he is denied parole, and that the injunction he seeks is directed to both the Department of Corrections (“DOC”) staff and the parole board, who operate “in concert” with one another. Id. at 3.
The Motion for Preliminary Injunction is ripe for consideration.
B. LEGAL STANDARD
Although Plaintiff purports to seek a temporary restraining order and a preliminary injunction, because Plaintiff seeks injunctive relief and Defendants have been provided with notice and an opportunity to brief this issue prior to the issuance of an order, the Court will consider the motion as a request for a preliminary injunction only. See Fed.R.Civ.P. 65(a)(1), (b); Story v. Wetzel, Civ. A. No. 15-1241, 2017 U.S. Dist. LEXIS 18169, at *3 n.1 (W.D. Pa. Feb. 9, 2017).
Preliminary injunctive relief is an extraordinary remedy and should issue only in limited circumstances. Ferring Pharm., Inc. v. Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014). Four factors inform a court's decision as to the issuance of a preliminary injunction: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will suffer irreparable harm if denied relief; (3) whether the requested relief will cause greater harm to the nonmovant; and (4) whether an injunction would be in the public interest. Am. Express Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). The first two factors are “most critical” to the court's analysis, and the movant cannot succeed if either of these two factors are not established. Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). If these first two “gateway factors” are met, the court considers the remaining factors and determines whether all four factors, on balance, weigh in favor of granting the requested preliminary relief. Id.
C. DISCUSSION
Upon review, the Court should deny Plaintiff's Motion for Preliminary Injunction. In support of his Motion, Plaintiff requests that (1) the misconducts at issue be removed from his inmate record by the DOC; and (2) that both the DOC and parole board be prohibited from considering his misconducts, or any information related to this action.
To the extent that Plaintiff seeks to direct the parole board's actions, this Court does not have authority to grant this relief. The parole board is not a party to this lawsuit. As this Court has held, “a non-party to this lawsuit, such as the parole board, 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.” Goodman v. Miceli, No. 20-1259, 2020 WL 8187554, at *3 (W.D. Pa. Dec. 7, 2020), report & recommendation adopted, 2021 WL 168491 (W.D. Pa. Jan. 19, 2021) (quoting Elliott v. Kiesewetter, 98 F.3d 47, 56 n. 5 (3d Cir. 1996)) (internal quotations omitted). Plaintiff has made no such showing here. Although Plaintiff asserts that the parole board and DOC are acting in concert, he offers no support for this conclusion.
Furthermore, Plaintiff does not establish either of the two “gateway” factors-a reasonable probability of success on the merits and irreparable harm if he is denied relief-that are necessary to grant injunctive relief. First, as to the merits of Plaintiff's retaliation claim, the current record does not demonstrate a reasonable probability of success. Other than his own allegations, Plaintiff cites no evidence to support his claim that his misconducts were issued in retaliation for exercising his First Amendment rights. The Court also takes note of documents filed in Plaintiff's prior action, Brown v. Adams, et al. (“Brown I”), Case No. 19-638 (W.D. Pa. 2019), which suggest that he received a hearing relative to his April 2019 misconducts, that the findings were upheld through multiple levels of review, and that prison officials found he did not properly serve legal documents on Felix, as he has claimed. Brown I, ECF No. 28-2 at 12-16.
Second, Plaintiff does not establish he will face irreparable harm if he is denied his requested relief. Although Plaintiff argues he will be harmed if he is denied parole, he does not show that his requested injunctive relief is necessary to avoid this harm. The parole board is entitled to consider numerous factors in determining Plaintiff's parole status, and there is no non-speculative basis for the Court to conclude that the over two-year old misconducts at issue will be dispositive of his parole status in May 2021. See Angstadt v. Midd-West Sch. Dist., 182 F.Supp.2d 435, 437 (M.D. Pa. 2002) (plaintiff must show harm that is “actual and imminent, not merely speculative”) (quoting Raitport v. Provident Nat'l Bank, 451 F.Supp. 522, 530 (E.D. Pa. 1978)). For these reasons, the Motion for Preliminary Injunction should be denied.
Moreover, to the extent Plaintiff requests that the DOC be prohibited from considering his misconducts or related documents, this does not appear to have any arguable bearing on the parole board's determination.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Preliminary Injunction, ECF No. 139, be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any appellate rights.