Opinion
3:22-cv-94-KRG-KAP
05-11-2023
NIARA BURTON, a/k/a Herman Burton, Plaintiff v. JOHN E. WETZEL, et al., Defendants
REPORT AND RECOMMENDATION RECOMMENDATION
KEITH A. PESTO,, UNITED STATES MAGISTRATE JUDGE
Plaintiff's most recent motion for a temporary restraining order or preliminary injunction, ECF no. 38, should be denied without hearing.
Report
Plaintiff Niara Burton, known to the Department of Corrections as Herman Burton, is an inmate at S.C.I. Houtzdale. Burton filed a complaint in August 2021, Burton v. Wetzel, Case No. 3:22-cv-94-KAP (W.D.Pa.), that was administratively closed for lack of a filing fee and subsequently abandoned. Burton has been actively litigating a related complaint in the Middle District before Judge Schwab at Burton v. Wetzel, Case No. 1:19-cv-1574-SES (M.D.Pa.). In this matter, Burton has recently (two days ago, May 9, 2023) filed a lengthy Amended Complaint that has not yet been screened as required by the Prison Litigation Reform Act.
As Burton alleges in his Amended Complaint, Burton is a transwoman who has undergone sex reassignment surgery, who was formerly in custody at S.C.I. Muncy (a women's prison), and who is now at S.C.I. Houtzdale (a male prison). Burton's lengthy handwritten pleadings are hard to read but the gist of his complaint is that various defendant employees and agents of the Pennsylvania Department of Corrections have violated his rights with respect to his personal integrity (including allegations of rape by corrections personnel at Muncy) and his medical care (including actions alleged to be intended to cause “degression of Ms. Burton in masculinization recompensation with male secondary sex traits,” see Amended Complaint at 5,) related to his sex reassignment surgery.
Burton filed a five-page motion ECF no. 38 for a temporary restraining order or preliminary injunction against personnel at S.C.I. Houtzdale to prohibit actions that are described in the first of three one-page orders attached to the motion as “entering cell masculinizing her, and all on motion.” The motion itself alleges a laundry list of past actions by unspecified persons on unspecified dates that interfere with Burton's gender identity, such as entering Burton's cell while she is sleeping and “inducing male steroids to have her grow male trait” and “plac[ing] male steroids to make her gain a less feminine appearance and to grow facial hair and deepen her voice.” Without details, unidentified persons have also allegedly “project[ed] Ms. Burton as a male homosexual to incite physical altercation,” and unidentified “staff” have offered unspecified persons $500 to assault her so that someone can record the assault “on DVDS footage to watch it and use for training purpose.”
Preliminary relief under Fed.R.Civ.P. 65 is for the purpose of maintaining the status quo to avoid the likelihood of irreparable injury before a decision on the merits of a matter can be rendered. Winter v. Natural Resources Defense Council, 555 U.S. 7, 22 (2008). A court considering a request for preliminary injunction typically evaluates: (1) the likelihood that the plaintiff will prevail on the merits at the final hearing; (2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; (3) the extent to which the defendant will suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest. Hawksbill Sea Turtle v. FEMA, 126 F.3d 461, 478 n.13 (3d Cir.1997), citing Merchant & Evans, Inc. v. Roosevelt Building Products, Inc., 963 F.2d 628, 632-33 (3d Cir.1992). This not a balancing test: the moving party must show, before any balance of harms or public interest is considered, both a reasonable likelihood of ultimately prevailing on the merits in the underlying action and the need for immediate relief to avoid irreparable injury. Hope v. Warden York County Prison, 972 F.3d 310, 319 (3d Cir. 2020); Allis-Chalmers Manufacturing Co. v. White Consolidated Industries, Inc., 414 F.2d 506, 511 (3d Cir.1969).
Initially, I doubt that injunctive relief can ever be appropriate when there has not been a reasonable chance to screen the underlying complaint to determine whether it states a claim against the defendants. Fed.R.Civ.P. 8(a) requires the complaint to be a short and plain statement containing sufficient factual matter that if accepted as true would state a legal claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the Supreme Court's words, plaintiff must allege enough facts in the complaint to “nudge” a claim “across the line from conceivable to plausible.” Id., 556 U.S. at 683, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). On first review, some of the Amended Complaint, like some of the original Complaint, is plausible, and some is not. Standing alone, the Amended Complaint does not provide evidence of a likelihood of success.
Plaintiff's motion asserts without details that she is likely to succeed on the merits. Burton submits no evidence at all in support of that element beyond the allegations in the Amended Complaint that named and unnamed individuals have done improper things.
The presumption that the plausible allegations of the Amended Complaint are true is a legal presumption for purposes of screening complaints under the PLRA and considering motions to dismiss under Fed.R.Civ.P. 12(b)(6), but that presumption under Rule 12 does not apply to motions under Rule 65. A litigant cannot obtain injunctive relief, or even a hearing, by incorporating the conclusory allegations of a complaint. If that were possible, all any litigant would have to do to jump ahead of all other cases and obtain what effectively would be an immediate trial for injunctive relief would be to file a complaint and then re-file the same pleading as one for relief under Rule 65.
For Burton and other inmate litigants, that is additionally precluded by the exhaustion of remedies requirement of the Prison Litigation Reform Act. Burton, even if she submitted evidence that if proved would show a likelihood of success in the underlying action, cannot dispense with exhaustion of administrative remedies for any future controversy and jump to the front of the line by sweeping all future grievances into a motion for injunctive relief, especially one as general as this one.
There are also two fatal deficiencies that relate to the irreparable harm element. First, Burton cannot frame her relief as she does, asking for a prohibition of conduct “as referenced in the motion” directed to “all persons” or all “persons acting in concert with the defendants.” The doctrine that injunctive relief must be directed at specific conduct by particular persons is a general rule of standing, see City of Los Angeles v. Lyons, 461 U.S. 95, 108 (1983), and under the PLRA it is an express statutory requirement:
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.
18 U.S.C.§ 3626(a)(2). Second, because Burton makes almost no attempt to describe what relief the Court should provide, she makes no attempt to show why each element of injunctive relief sought would be necessary to prevent irreparable harm. Burton asks for one specific relief that plausibly touches on a claim of irreparable harm - that persons not be allowed to enter her cell while she is sleeping and inject her with male steroids to masculinize her - and even that relief is directed to the Department of Corrections generally. But there is not even a plausible claim by Burton that the unknown person who allegedly did this surreptitious cell entry and assault in the past is likely to do it again. To paraphrase what the Supreme Court said more than forty years ago in Lyons:
If [Burton] has made no showing that [she] is realistically threatened by a repetition of [her] experience [of particular conduct by particular persons on a particular date] then [she] has not met the requirements for seeking an injunction in a federal court, whether the injunction contemplates intrusive structural relief or the cessation of a discrete practice.City of Los Angeles v. Lyons, supra, 461 U.S. at 109. A court cannot let legal technicalities stand in the way of protecting litigants while litigation is pending. But at the same time, it is legally wrong and a misuse of judicial resources to deploy the court's power to grant injunctive relief based on an inadequate motion asking the court to be on call for a litigant's speculative future grievances.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).