Opinion
1:20-cv-00368 (Erie)
07-01-2021
ANTHONY DEFRANCO, Plaintiff v. OFC. ASHLEY MILLER; SGT. MATTHEW PUTNAM, Defendants
REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELMINARY INJUNCITON
ECF NO. 19
HON. RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation .
Presently before the Court is a motion for a temporary restraining order and preliminary injunction filed by pro se Plaintiff Anthony DeFranco (DeFranco). ECF No. 19. DeFranco initiated this action on December 28, 2020, and his Complaint against Defendants Officer Ashley Miller and Sergeant Matthew Putman was docketed on January 25, 2021. ECF No. 5. At the time of filing, DeFranco was incarcerated at the State Correctional Institution at Albion in Erie County, Pennsylvania. Id., at p. 1. The pending motion was filed on June 15, 2021 and docketed on June 24, 2021. For the reasons stated herein, it is recommended that the motion be denied.
II. Background and Procedural History
DeFranco’s Complaint alleges violations of his constitutional rights under the First and Fifth Amendments and was filed pursuant to 42 U.S.C. § 1983. The Defendants have filed a motion to dismiss and a brief in support thereof. See ECF Nos. 14, 15. DeFranco has filed a brief in opposition to the motion to dismiss. ECF Nos, 17, 18. That motion remains pending.
DeFranco’s pending motion seeks an order restraining the Defendants, “their employers (D.O.C.) and co-workers from the it continuing violation of his constitutional rights.” ECF No. 19, ¶ 1. DeFranco states that he is “enduring a campaign of harassment, retaliatory in nature, which is violating his constitutional rights.” Id., ¶ 3. Specifically, DeFranco alleges that on June 11, 2021, while waiting in line for medication, he was subjected to “vicious and threatening words” by Correction Officers Miko and Martin. Id., ¶ 6. He also states that he filed a grievance over this incident. Id., ¶ 7.
III. Standard of Decision
Preliminary injunctive relief is extraordinary in nature and should only issue in limited circumstances. See Am. Tel. &Tel Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). Moreover, issuance of such relief is at the discretion of the trial judge. IPWr v. Erie Cty., 2020 WL 582221, at * (W.D. Pa. Feb. 6, 2020). In determining whether to grant a motion seeking preliminary injunctive refief, courts in the Third Circuit must consider the following four factors: (1) the likelihood that the applicant will prevail on the merits; (2) the extent to which the movant is being irreparably harmed by the conduct complained of; (3) the extent to which the non-moving party will suffer irreparable harm if the preliminary injunction is issued; and (4) whether granting preliminary injunctive relief will be in the public interest. Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir. 2010). It is the moving party who bear the burden of satisfying these factors. United States v. Bell, 238 F.Supp. 2d 696, 699 (M.D. Pa. 2003). “Only if the movant produces evidence sufficient to convince the trial judge that all four factors favor preliminary relief should the injunction issue.” Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.3d 187, 192 (3d Cir. 1990).
United States v. Pennsylvania, 533 F.2d 107, 110 (3d Cir. 1976). A preliminary injunction “may not be Pendente lite is a Latin term meaning “while the action is pending” or “during the proceeding litigation.” Black’s Law Dictionary, 1154 (7th Ed. 1999).
“[A]n essential prerequisite to the grant of a preliminary injunction [or temporary restraining order] is a showing by the movant of irreparable injury pendente lite if the relief is not granted.” United States v. Pennsylvania, 533 F.2d 107, 110 (3d Cir. 1976). A preliminary injunction "may not be used simply to eliminate a possibility of a remote future injury.” Holiday Inns of Am., Inc. v. B&B Corp., 409 F.2d 614, 618 (3d Cir. 1969) “[T]he irreparable harm must be actual and imminent, not merely speculative.” Williams v. Nyberg, 2021 WL 1624319 *2 (W.D. Pa. Apr. 27, 2021). Indeed, the movant “must make a clear showing of immediate irreparable injury, or a presently existing actual threat; an injunction may be used to simply eliminate the possibility of a remove future injury, or a future invasion of rights.” Id. (citing McCafferty v. Wolf, 2021 WL 1340002, * (W.D. Pa. Apr. 9, 2021)). And an injunction cannot be issued based on past harm. Croft v. Donegal Tup., 2021 WL 1110567, at *9 (W.D. Pa. Mar. 23, 2021); AH v. TCI Allenwood, 2017 WL 3008545, at * 2 (M.D. Pa. July 14, 2017).
Moreover, “[f]he ‘requisite feared injury or harm must be irreparable-not merely serious or substantial,’ and it ‘must be of a peculiar nature, so that compensation in money cannot atone for it.’” ECRI v. McGraw-Hill, Inc., 809 F.3d 223, 226 (3d Cir. 1987) (quoting Glasco v. Hills, 558 F.3d 179, 181 (3d Cir. 1977)). To demonstrate irreparable harm, “the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989) (emphasis added). “The key word is irreparable . . . the possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974) (emphasis in original).
IV. Discussion and Analysis
First, as far as DeFranco’s motion seeks injunctive relief against the Pennsylvania Department of Corrections and co-workers of the Defendants, the motion should be denied. Neither the Department nor any of the Defendants’ co-workers is a party to this lawsuit. As this Court has explained, “[a] non-party cannot be bound by the terms of an injunction unless the non- party is found to acting in concert or participation with the party against whom injunctive rehef is sought.” Scutella v. Erie Cty. Prison, 2020 WL 1158792, at *1 (W.D. Pa. Mar. 10, 2020) (citing Elliott v. Kiesewetter, 98 F.3d 47, 56 (3d Cir. 1996)). DeFranco may pursue a separate legal action again the Department, Officer Miko, Officer Martin, or other of the Defendants’ co-workers if he has a factual basis for doing so. Id., (citing Williams v. Eackawanna Cty. Prison, 2014 WL 3507296, *3 (M.D. Pa. July 14, 2014)). No relief is available against the Department and Defendants’ co-workers in this action because they are not parties subject to the Court’s jurisdiction.
Second, DeFranco’s motion for a temporary restraining order alleges no immediate irreparable harm. Alleging only harassment and retaliation that occurred in the past, DeFranco fails to identify any existing, actual threat of irreparable injury. See, e.g., ECF No. 19, ¶¶ 6-9. Such generalized allegations are insufficient to establish a “clear showing of immediate irreparable injury.” See Continental Grp., 614 F.2d at 359; Hendricks v. Hazard, 2013 WL 2635729, *5 (S.D. Ohio June 12, 2013) (finding that allegations of ongoing general harassment and threats, and allegations of specific threats of physical harm that were never acted upon, where insufficient to demonstrate imminent irreparable harm). To the extent any harm is alleged, it is not imminent so as to warrant rehef. See Williams, 2021 WL 1624319, *2; McCafferty, 2012 WL 1340002, *4. In his motion, DeFranco focuses on events that began and concluded on June 11, 2021. ECF No. 19, ¶ 6. Thus, any harm he alleges is not immediate, but happened in the past. See ECRI, 809 F.3d at 226 (irreparable harm must be immediate).
V. Conclusion
For the foregoing reasons, it is respectfully recommended that DeFranco’s Motion for a Temporary Restraining Order and a Preliminary Injunction be DENIED.
VI. Notice to the Parties
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. Plaintiffs failure to file timely objections will constitute a waiver of his appellate rights.