Opinion
Civil Action 19-220J
03-17-2023
THORNE TROKON THOMAS, Plaintiff, v. CAPT. JEREMY W. JONES, THOMAS BICKFORD, COI SHAFFER, COI RANSDORF, COI RUMMEL, COI R. BAILEY, COI SNEDDEN, RN DODSON, and the PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Defendants.
KIM R. GIBSON, DISTRICT JUDGE
REPORT AND RECOMMENDATION
RE: ECF NO. 159
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Thome Trokon Thomas (“Plaintiff'), an inmate incarcerated at the State Correctional Institution at Albion (“SCI-Albion”), brings this counseled civil rights action under 42 U.S.C. § 1983. ECF No. 157. Plaintiffs claims arise, in part, out of allegations that prison officials violated his Eighth Amendment rights by using oleoresin capsicum (“OC”) spray (also known as “pepper spray”) against him while he was unresponsive and suffering a medical emergency.
The Court notes that Plaintiff styles the caption of his Fourth Amended Complaint as filed “on behalf of himself and all others similarly situated,” but he only brings individual claims in this action. This is not a class action lawsuit.
Presently before the Court is Plaintiff's Motion for Preliminary Injunction. ECF No. 159.For the reasons that follow, it is respectfully recommended that the Motion for Preliminary Injunction be denied.
Plaintiff's Motion was originally filed at ECF No. 159. Counsel later refiled this motion at ECF No. 161 to correct a filing error.
II. REPORT
A. FACTUAL AND PROCEDURAL HISTORY
Plaintiff initiated this action on December 20, 2019, by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), together with a proposed Complaint. ECF No. 1. The Court granted Plaintiffs IFP Motion on March 16, 2020, and his original Complaint was filed on the same date. ECF Nos. 9 and 10.
Over two years, Plaintiff attempted to amend his pleadings on multiple occasions. ECF Nos. 47, 69, 73, 75, 88 and 104. Because the Court found that Plaintiff demonstrated a lack of understanding or ability to comply with the Court's direction in the course of preparing pleadings, motions, and discovery requests, it appointed pro bono counsel. ECF Nos. 120,121,122, and 135. After counsel entered their appearance, the Court granted Plaintiff leave to file an amended Complaint. ECF No. 148. The operative Fourth Amended Complaint was filed on December 12, 2022. ECF No. 149.
1. Plaintiffs Fourth Amended Complaint
Plaintiffs claims arise, in part, out of an incident that occurred on April 8, 2019. That evening, Plaintiff became light-headed and collapsed as a result of low blood sugar and other unspecified health conditions. Id. ¶ 22. At 10:50 p.m., Defendant Captain Jeremy W. Jones (“Jones”) received an alert that Plaintiff was unresponsive and lying on the floor of his cell. Id. ¶ 23. Approximately 10 minutes later, Jones arrived at Plaintiffs cell with Defendants Shaffer, Ransdorf, Rummel, Bailey and Snedden, where they found Plaintiff lying face down. Id. ¶¶ 4, 24.
In support of the Motion for Preliminary Injunction, Plaintiff adds that he was also fasting for religious reasons following the death of a loved one. ECF No. 162 at 2.
Plaintiff pleads that Jones and the “Policy Defendants” arrived at his cell, which also includes Defendant RN Dodson as defined by Plaintiff. ECF No. 149 ¶¶ 4, 24. However, Plaintiff clarifies in his Brief in Support of the Motion for Preliminary Injunction, ECF No. 162 at 3, that only correctional officers Shaffer, Ransdorf, Rummel, Bailey and Snedden were present at this time.
Defendants did not check on Plaintiffs health. Id. ¶ 25. Instead, Jones directed Plaintiff to come to his cell door-which Plaintiff was physically unable to do. Id. Jones then ordered that Defendants administer pepper spray, in accordance with an alleged “unconstitutional Policy of pepper spraying unresponsive inmates” (the “Policy”). Id. ¶¶ 13, 26.
While Plaintiff was still unresponsive, and over the protests of nearby inmates, Defendants sprayed him with pepper spray. Id. ¶¶ 26-27. Jones subsequently entered Plaintiffs cell around 11:03 p.m. Id. ¶ 28. Defendants then pinned Plaintiffs head to the floor using a body shield, handcuffed him, lifted him to his feet, and took him to a sink to wash the pepper spray from his eyes. Id. ¶¶ 29-30.;
Because of the Policy, Plaintiff claims, his ability to receive medical care was significantly delayed. Id. ¶ 31. He was not examined by a medical professional, RN Dodson (“Dodson”), until 11:10 p.m. Id. Dodson determined that Plaintiff was “cold” and had low blood sugar-a condition that can cause lethargy, unresponsiveness, and an unconscious episode. Id. Defendants then removed Plaintiff to another area for a strip and cavity search. Id.
In this action, Plaintiff brings four claims in three counts under the First Amendment, Eighth Amendment, and RLUIPA. Id. ¶¶ 34-60. He seeks injunctive relief, compensatory and punitive damages. Id. at 11.
2. Motion for Preliminary Injunction
Plaintiff now moves for a preliminary injunction to restrain Department of Corrections (“DOC”) officials “from enforcing their de facto policy-or any policy, practice, or custom-of pepper spraying unresponsive inmates, including those suffering from medical emergencies or those who are unconscious.” ECF No. 161-1 ¶ 3.
In particular, Plaintiff requests the Order to apply to “Defendants, their officers, employees, and agents; all persons acting in active concert or participation with any Defendant, or under any Defendant's supervision, direction or control; and all other persons with the scope of Federal Rule of Civil Procedure 65.” ECF No.161-1 ¶ 3.
In support, Plaintiff argues that he is likely to succeed on the merits because the alleged policy violates his Eighth Amendment rights. ECF No. 162 at 4-5. Plaintiff also argues that both he and others will suffer irreparable injury if the policy remains in place. Id. at 6. In particular, he argues that he suffers from unspecified medical conditions “that can cause him to become unconscious,” and that the policy of pepper spraying unconscious inmates may dangerously interfere with timely access to medical care. Id. Plaintiff argues that Defendants will not suffer any harm if a preliminary injunction is granted because the DOC's use of force policy, DC-ADM 201, provides other methods for using force. Id. at 6-7. Finally, Plaintiff argues that it is in the public interest to ensure the health and safety of inmates. Id. at 8-9.
Plaintiff s brief in support of the Motion for Preliminaiy Injunction was originally filed at ECF No. 160. It was refiled at ECF No. 162 to correct a filing error.
3. Defendants' Response in Opposition
Defendants filed a Response in Opposition. ECF No. 166. Defendants argue that Plaintiff cannot show a likelihood of success on the merits because: (1) the alleged Policy does not exist; (2) Plaintiff did not exhaust his administrative remedies relative to the alleged Policy; and (3) his request for injunctive relief is moot because he has since been transferred to a different institution. ECF No. 166 at 6-12. Defendants also contend that Plaintiff cannot show he will face irreparable harm if denied relief, arguing that he solely relies on one incident four years ago, and the possibility it will happen again is too remote or speculative to award injunctive relief. Id. at 12-13. Finally, Defendants argue that granting Plaintiff's request is contrary to public interest and would cause greater harm to the non-moving party because it would have a deleterious effect on security. Id. at 14.
The Motion for Preliminary Injunction is now ripe for consideration.
B. LEGAL STANDARD
Preliminary injunctive relief is an extraordinary remedy and should issue only in limited circumstances. Feiring 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.
Because of the “complex and intractable problems of prison administration,” a request for injunctive relief in the prison context must be viewed with “great caution.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995); see also Rush v. Correctional Med. Servs., Inc., 287 Fed.Appx. 142, 144 (3d Cir. 2008). This is particularly so where the requested relief “is directed not merely at preserving the status quo but... at providing mandatory relief, the burden on the moving party is particularly heavy.” Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980); see also United States v. Price, 688 F.2d 204,212 (3d Cir. 1982) (“Mandatory injunctions should be used sparingly.”) Thus, the Court must consider requests for mandatory injunctive relief in the prison context with “great caution” and “judicial restraint.” Goff, 60 F.3d at 520.
C. DISCUSSION
Upon review, the Motion for Preliminary Injunction should be denied because Plaintiff does not establish a likelihood of success on the merits. Plaintiffs request for injunctive relief relates to his Eighth Amendment claim in Count I for “Violation by Implementing an Unconstitutional Policy.” ECF No. 149 ¶¶ 34-42. But for the reasons discussed in the Report and Recommendation relative to Defendants' Motion to Dismiss, ECF No. 169, Plaintiff does not state a plausible claim for relief as to this claim.
Plaintiff also does not establish that he will suffer irreparable harm if denied relief. Plaintiff has not met his burden of establishing that the threat of harm from the use of OC spray is “immediate and present.” Enoch v. Perry, No. 1:19-cv-00026,2019 WL 2393783, at *3 (W.D. Pa. Jun. 6, 2019). “[A]n injunction cannot be issued based on past harm,” nor can it “be used simply to eliminate the possibility of a remote future injury.” Id. (citing Simmons v. Overmyer, No. 18201,2018 WL 6078085, at *3 (W.D. Pa. Nov. 21,2018); Holiday Inns of Am., Inc, v. B&B Corp., 409 F.2d 614, 618 (3d Cir. 1969)) (internal quotations omitted).
Here, Plaintiff does not establish that the use of OC spray against him while unresponsive is an ongoing, continuing concern. He points to only one instance of its use, approximately four years ago. Such allegations do not present the type of “presently existing actual threat” that is required for the Court to grant injunctive relief. See id. (denying request for preliminary injunction to stop the use of OC spray based on two prior incidents of its use against plaintiff). Because Plaintiff does not establish either of the first two “gateway” requirements for granting injunctive relief, his Motion for Preliminary Injunction should be denied.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiffs Motion for Preliminary Injunction, ECF No. 159, be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. 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 file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.