Opinion
Civil Action 3:20-CV-01829
01-26-2023
DESHAWN DRUMGO, SR., Plaintiff, v. FUNK, et al., Defendants.
(MEHALCHICK, M.J.)
REPORT AND RECOMMENDATION
(BRANN, J.)
This case involves a pro se plaintiff, Deshawn Drumgo (“Drumgo”), who initiated the above-captioned civil rights action by filing a complaint pursuant to 42 U.S.C. § 1983 against Defendants Sergeant Funk, Correctional Officer (“C.O.”) Cline, C.O. Yox, C.O. James, C.O. Lowe, Sergeant Bare, Sergeant Gilbert, Security Lieutenant Mihal, Lieutenant Berfield, Tonya Heist, Sergeant McBeth, Deb Alvord, C.O. Roth, Sergeant Bainey, Ms. Digby Cum, Sergeant Rivera, C.O. Hubert, Lieutenant Horner, Superintendent Laurel Harry, Hex Schnek, C.O. Johnson, Unit Manager Ritchey, Jane Doe, John Doe, Sergeant McGee, and Sergeant Maul (collectively, “Defendants”). (Doc. 1). On March 17, 2021, the Court granted Drumgo leave to proceed in forma pauperis in this action. (Doc. 22). At all times relevant to this action, Drumgo was incarcerated at the State Correctional Institution at Camp Hill (“SCI-Camp Hill”), located in Cumberland County, Pennsylvania. (Doc. 1, at 10). Currently, before the Court are two motions for a temporary restraining order ("TRO") and appointment of counsel filed by Drumgo. (Doc. 47; Doc. 65). For the reasons stated herein, it is respectfully recommended that the motions for TROs and appointment of counsel be DENIED.
Drumgo lists the named Defendants in his original complaint, however, the Civil Docket lists the Defendants with different credentials. (Doc. 7)
I. Background and Procedural History
On September 24, 2020, Drumgo initiated this civil rights action by filing a complaint in the United States District Court for the Eastern District of Pennsylvania pursuant to 42 U.S.C. § 1983 against Defendants. (Doc. 1). Along with his complaint, Drumgo filed the first motion for TRO and two accompanying letters. (Doc. 2; Doc. 3; Doc. 4). On October 7, 2022, the action was transferred to the Middle District of Pennsylvania. (Doc. 1).
On March 17, 2021, the Court granted Drumgo leave to proceed in forma pauperis in this action. (Doc. 22). On the same day, the undersigned recommended that the Court deny Drumgo's motion for a TRO, as he failed to demonstrate irreparable harm or a likelihood of success on the merits. (Doc. 23). On May 20, 2021, the Court adopted the undersigned's recommendation and remanded the case for further proceedings. (Doc. 32). On April 28, 2021, Drumgo filed a motion for permanent injunction and a motion to appoint counsel. (Doc. 29). On May 18, 2022, Defendants filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. (Doc. 31). On June 4, 2021, Drumgo filed a motion to amend/correct his complaint, in which he seeks to amend the name of “Sgt Maul” to “Sgt Mull.” (Doc. 36, at 1). On December 20, 2021, the undersigned deemed the motions for TRO and motion for permanent injunction as withdrawn for failure to file briefs in support, denied the motion to appoint counsel, and granted Drumgo's motion to amend/correct, directing the Clerk of Court to amend the name of the defendants to Sgt Mull. (Doc. 41). On the same day, the undersigned recommended that Defendants' motion to dismiss be denied. (Doc. 42). On February 23, 2022, the Court adopted the undersigned's recommendation in full. (Doc. 43).
On March 15, 2022, Drumgo filed a renewed motion for TRO and a motion for a preliminary injunction against Defendants. (Doc. 47). Drumgo alleges that he is facing harassment and retaliation from officers for refusing to perform a sexual act on a corrections officer and because he is a suspect in a murder investigation of a corrections officer in Delaware. (Doc. 47, at 1). Drumgo also alleges that documents that could exonerate him have been destroyed and/or lost by Defendants. (Doc. 47, at 1). On June 3, 2022, Defendants filed a brief in opposition to the motion for TRO and preliminary injunction. (Doc. 57). Drumgo filed a reply brief on June 29, 2022. (Doc. 58). On September 29, 2022, Drumgo filed another motion for TRO, seeking a temporary restraining order, injunctive relief, and appointment of counsel. (Doc. 65).
II. Discussion
A. Request for Appointment of Counsel
Drumgo's latest motion includes a motion for appointment of counsel. (Doc. 65). Although prisoners have no constitutional or statutory right to appointment of counsel in a civil case, the Court has the discretion to request “an attorney to represent any person unable to afford counsel.” 28 u.s.C. § 1915(e)(1); see Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997); see also Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). under § 1915(e)(1), the “court may request an attorney to represent any person unable to employ counsel.” The district court's appointment of counsel is discretionary and must be made on a case-by-case basis. Tabron, 6 F.3d at 157-58.
Appointment of counsel for an indigent litigant should be made when circumstances indicate “the likelihood of substantial prejudice to him resulting, for example, from his probable inability without such assistance to present the facts and legal issues to the court in a complex but arguably meritorious case.” Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984). The initial determination to be made by the court in evaluating the expenditure of the “precious commodity” of volunteer counsel is whether the plaintiff's case has some arguable merit in fact and law. Montgomery, 294 F.3d at 499. If a plaintiff overcomes this threshold hurdle, other factors to be examined are:
(1) the plaintiff's ability to present his or her own case; (2) the difficulty of the particular legal issues; (3) the degree to which factual investigation will be necessary and the ability of the claimant to pursue investigation; (4) the plaintiff's capacity to retain counsel on his or her own behalf; (5) the extent to which the case is likely to turn on credibility determinations; and (6) whether the case will require testimony from expert witnesses.Montgomery, 294 F.3d at 499 (citing Tabron, 6 F.3d at 155-57).
Additionally, another practical consideration must be taken into account when considering a motion for appointment of counsel. As the Third Circuit has observed:
[W]e must take note of the significant practical restraints on the district court's ability to appoint counsel: the ever-growing number of prisoner civil rights actions filed each year in the federal courts; the lack of funding to pay appointed counsel; and the limited supply of competent lawyers who are willing to undertake such representation without compensation. We have no doubt that there are many cases in which district courts seek to appoint counsel but there is simply none willing to accept appointment. It is difficult to fault a district court that denies a request for appointment under such circumstances.Tabron, 6 F.3d at 157.
In his present request, Drumgo contends “counsel is needed” to adequately litigate this case, however, he fails to discuss any facts indicating the applicability of the Tabron factors. (Doc. 65, at 4). On the record presently before the Court, application of the Tabron factors weighs in favor of denying Drumgo's application for appointment of counsel at this time. At the onset, the undersigned notes that the Court has a duty to construe Drumgo's pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Next, the undersigned finds that Drumgo has thus far demonstrated an ability to adequately litigate this case. Drumgo has filed a complaint that contains clearly set forth claims and facts possessing “arguable merit” with distinct sections for each claim. (Doc. 1, at 2-3, 5-7); see Montgomery, 294 F.3d at 499. In these sections, Drumgo presents allegations regarding violations of his rights under the First, Eighth, and Fourteenth Amendments, as well as claims for retaliation, and facts supporting these claims. (Doc. 1, at 2-3, 5-7). By presenting these issues in a logical manner, Drumgo has demonstrated his ability to comprehend the legal issues. Furthermore, Drumgo has demonstrated his ability to provide facts to support his claims sufficiently, demonstrated by the service of his complaint after the Court's initial screening. (Doc. 1). In addition to his complaint, Drumgo's filing of a motion for leave to proceed in forma pauperis and additional motions, including prior motions to appoint counsel, further demonstrate his ability to adequately litigate this case. (Doc. 2; Doc. 14; Doc. 25; Doc. 29; Doc. 58; Doc. 65); see Montgomery, 294 F.3d at 501. Drumgo “has shown he sufficiently understands court procedure” and has the apparent ability to comprehend the legal issues and litigate this action thus far. Daughtry v. Kauffman, et al., No. 3:17-CV-0442, 2019 WL 118600, at *4 (M.D. PA. Jan. 7, 2019).
Drumgo's apparent ability to litigate this action coupled with this Court's duty to construe pro se pleadings liberally weigh against the appointment of counsel. See Shehadeh v. Wilkes-Barre City Police Dept., No. 3:21-CV-35, 2021 WL 2567020, at *2 (M.D. Pa. June 23, 2021). Accordingly, it is recommended that Drumgo's renewed request for appointment of counsel be DENIED. (Doc. 65, at 4). If further proceedings demonstrate the need for counsel, the matter will be reconsidered either by the Court on its own initiative or upon motion by Drumgo.
B. Motions for TROs and Preliminary Injunction
Preliminary injunctive relief is extraordinary in nature and should be issued in only limited circumstances. See Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). Moreover, the issuance of such relief is at the discretion of the trial judge. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Chamberlain, 145 F. supp. 2d 621, 625 (M.D. Pa. 2001). in determining whether to grant a motion seeking preliminary injunctive relief, courts in the Third Circuit consider the following four factors: “(1) likelihood of success on the merits; (2) irreparable harm resulting from a denial of the relief; (3) the harm to the non-moving party if relief is granted; and (4) the public interest.” United States v. Bell, 238 F. supp. 2d 696, 699 (M.D. Pa. 2003); see also Bieros v. Nicola, 857 F. supp. 445, 446 (E.D. Pa. 1994) (“The standards for a temporary restraining order are the same as those for a preliminary injunction”). it is the moving party who bears the burden of satisfying these factors. Bell, 238 F. supp. 2d at 699. “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.2d 187, 192 (3d Cir. 1990).
“[A]n essential prerequisite to the grant of a preliminary injunction 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.” Angstadt ex rel. Angstadt v. Midd-West Sch., 182 F.Supp.2d 435, 437 (M.D. Pa. 2002). “[M]ore than a risk of irreparable harm must be demonstrated. The requisite for injunctive relief has been characterized as a ‘clear showing of immediate irreparable injury,' or a ‘presently existing actual threat ....'” Continental Grp., Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359 (3d Cir. 1980) (citations omitted). “A preliminary injunction cannot be issued based on past harm. The purpose of a preliminary injunction is to prevent future irreparable harm.” Fisher v. Goord, 981 F.Supp. 140, 168 (W.D.N.Y. 1997) (emphasis in original).
Pendente lite is a Latin term meaning “while the action is pending” or “[d]uring the proceeding or litigation.” Black's Law Dictionary 1154 (7th ed.1999).
Moreover, “[t]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.2d 223, 226 (3d Cir. 1987) (quoting Glasco v. Hills, 558 F.2d 179, 181 (3d Cir. 1977)). "In order 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 in this consideration 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).
In the pending motions for TRO, Drumgo states that he faces harassment, retaliation, and poisoning and that paperwork that could exonerate him has been destroyed. (Doc. 41, at 1). Drumgo claims that he suffers from daily mental anguish resulting from the continued retaliation and harassment. (Doc. 65, at 4). Drumgo also alleges that on July 1, 2022, he was subjected to a cell search by a K-9 unit for the first time in seventeen years in which nothing was recovered and depicts graphic details of an alleged sexual assault that occurred on July 14, 2022. (Doc. 65 at 1, 3). He seeks emergency injunctive relief, a temporary restraining order, and/or a transfer. (Doc. 41, at 1; Doc. 65, at 4).
In opposition to Drumgo's motion for TROs and preliminary injunction, Defendants argue that Drumgo fails to show a reasonable probability of success on the merits or that he will be irreparably injured by the denial of the relief he seeks. (Doc. 57, at 6-8). Defendants also argue that granting injunctive relief is not in the public interest. (Doc. 57, at 8-9). In response, Drumgo avers that he has presented genuine factual materials that warrant the granting of a TRO or preliminary injunction. (Doc. 58, at 1, 4).
Upon consideration of Drumgo's motions for a temporary restraining order, it is clear that no immediate irreparable injury is alleged. Drumgo's motion fails to articulate a presently existing actual threat of irreparable injury, outlining nothing more than generalized allegations of harassment and retaliation by the officers. (Doc. 47, at 3; Doc. 65, at 1-3). Such generalized allegations are insufficient to establish a “clear showing of immediate irreparable injury.” Continental Grp., 614 F.2d at 359; Hendricks v. Hazzard, No. 2:11-cv-399, 2013 WL 2635729, at *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, were insufficient to demonstrate imminent irreparable harm). Specifically, in his renewed motion for a temporary restraining order, Drumgo alleges that he endures daily retaliation and harassment including poisoning and the confiscation of materials that could exonerate him. (Doc. 47, at 3). However, these claims do not demonstrate irreparable harm. See Herder v. Biesh, No. 1:CV-09-2470, 2010 WL 2766611, at *4 (M.D. Pa. July 13, 2010) (plaintiff's request for preliminary injunctive relief on his Eighth Amendment claims failed for want of evidence of irreparable harm where plaintiff claimed he was poisoned but the prisoner's record was clear that these ailments had been, and continued to be, addressed by prison's medical staff without any evidence to suggest there was a poison); Preacher v. Overmyer, No. 1:17-CV-18, 2019 WL 3213533, at *3 (W.D. Pa. July 17, 2019) (finding plaintiff's broad allegations that his legal materials and an unspecified video were confiscated failed to demonstrate irreparable injury and an access to courts claim under the First Amendment and section 1983 is the proper remedy for such an injury). As such, the undersigned finds that the requested relief is not an appropriate remedy in this circumstance as the motions state no facts to support the allegation that Drumgo faces the type of imminent or irreparable harm that could justify this extraordinary relief. (Doc. 47, at 3; Doc. 65, at 13); see Preacher, 2019 WL 3213533, at *2-3.
Likewise, regarding the alleged search of Drumgo's cell by a K-9 unit, the undersigned finds that these allegations fail to demonstrate that Drumgo will be irreparably harmed without injunctive relief. See Cont'l Group, 614 F.2d at 359 (requiring a clear showing of immediate irreparable injury or a presently existing actual threat for injunctive relief); see also Anderson v. Davila, 125 F.3d 148, 163-64 (3d Cir. 1997) (stating injunctive relief is inappropriate where movant cannot show harm is ongoing or that there is a real or immediate threat of its reappearance in the near future); Bacon v. Taylor, 419 F.Supp.2d 635, 638 (D. Del. 2006) (finding no irreparable injury where prisoner did not allege that he had been irreparably injured and made only vague and conclusory allegations about possible future harm); Tillery v. Hayman, No. CIV.A.07-2662(MLC), 2008 WL 5416392, at *3 (D.N.J. Dec. 22, 2008).
Additionally, Drumgo's claim that he has been sexually harassed and assaulted while in SCI-Camp Hill fails to demonstrate irreparable harm because Drumgo's claims are based largely upon vague and conclusory allegations with minimal factual support. (Doc. 65, at 3). It is unclear whether Drumgo is asserting an ongoing threat of assault or harassment or complaining of prior conduct, the remedy for which alleged past injuries is money damages. Preacher, 2019 WL 3213533, at *2; see Instant Air Freight, 882 F.2d at 801 (a court may not grant injunctive relief unless “[t]he preliminary injunction [is] the only way of protecting the plaintiff from harm.”)
Rule 65(b) provides in relevant part that the court may issue a temporary restraining order only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed.R.Civ.P. 65. The attached exhibits which include grievances filed by Drumgo, affidavits from fellow prisoners, and correspondences between Drumgo and various legal nonprofits regarding his case, further relay instances of Drumgo's broad and conclusory allegations. (Doc. 65, at 18-35). As discussed, supra, these allegations do not demonstrate the requisite immediate and irreparable injury for a temporary restraining order. Continental Grp., 614 F.2d at 359. As such, the Court declines to address the exhibits' merits. The analysis concerning irreparable harm for a preliminary injunction applies equally to the temporary restraining order sought here.
Furthermore, Drumgo fails to demonstrate a likelihood of success on the merits. Drumgo states that he is “likely to succeed on the merits” because “the Plaintiff has established genuine factual material that exists to preclude summary judgment.” (Doc. 47, at 4). However, considering the lack of evidence tying the majority of defendants to Drumgo's general allegations, Drumgo has failed to establish a reasonable probability of success on the merits of his claims. See Burton v. Wetzel, No. 1:19-CV-01574, 2020 WL 4335265, at *4 (M.D. Pa. July 28, 2020) (The Court found that the plaintiff failed to demonstrate a likelihood of success on the merits where the complaint cited very few specific examples of sexual harassment, discrimination or verbal or psychological abuse and did not link the majority of the defendants to those allegations).
Accordingly, it is recommended that Drumgo's motions for TROs be DENIED. (Doc. 47; Doc. 65); seeIn re Arthur Treacher's Franchisee Litig., 689 F.2d 1137 (3d Cir. 1982) (stating that “a failure to show a likelihood of success . . . must necessarily result in the denial of a preliminary injunction.”)
III. Recommendation
Based on the foregoing, it is recommended that Drumgo's motions for TROs and request for appointment of counsel (Doc. 45; Doc. 65) be DENIED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 26, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
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, needs to conduct a new hearing only at his or her discretion or where required by law and may consider the record developed before the magistrate judge, making his or her 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.