Hernandez v. Phelps et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 8/9/2011. (lid)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
ROBERT G. HERNANDEZ,
Plaintiff,
v.
CPL. R. DONOVAN, et al.,
Defendants.
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Civil Action No. 10-726(NLH-JS)
O P I N I O N
APPEARANCES:
ROBERT G. HERNANDEZ, Plaintiff pro se
James T. Vaughn Correctional Center
Smyrna, Delaware 19977
HILLMAN, District Judge
Plaintiff Robert G. Hernandez (“Hernandez”), who proceeds
pro se, filed a Complaint alleging violations of his civil rights
pursuant to 42 U.S.C. § 1983.
The Court has reviewed and
screened the original Complaint and the Amended Complaint.
Excessive force claims against Cpl. R. Donovan and dental needs
claims against Dr. Kionke remain.
Hernandez recently filed
several motions, discussed below.
I.
Motion for Reciprocal Relief
The Motion for Reciprocal Relief (D.I. 23) is merely a list
of three motions filed by Hernandez.
(See D.I. 24, 25, 26.)
Therefore, the Court will deny the motion.
II.
Motion to Amend or Expand the Record
Hernandez filed a Motion to Amend or Expand the Record.
The motion is incorrectly titled.
The filing is actually an
amended complaint that Hernandez was allowed to file after
seeking leave from the Court.
(See D.I. 21, 22.)
Court will deny the motion as moot.
Therefore, the
(D.I. 24.)
The Clerk of Court is directed to docket the Motion as a
Second Amended Complaint.
III.
Motion for Temporary Restraining Order
Hernandez filed a Motion for Temporary Restraining Order to
preclude Defendants or their co-workers from retaliating against
him or carrying out threats.
(D.I. 25.)
When considering a motion for a temporary restraining order
or preliminary injunction, the court determines: (1) the
likelihood of success on the merits; (2) the extent to which the
plaintiff is being irreparably harmed by the conduct complained
of; (3) the balancing of the hardships to the respective parties;
and (4) the public interest.
Kos Pharmaceuticals, Inc. v. Andrx
Corp., 369 F.3d 700, 708 (3d Cir. 2004)(citation omitted).
“[A]n
injunction may not be used simply to eliminate a possibility of a
remote future injury, or a future invasion of rights."
Continental Group, Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359
(3d Cir. 1980)(quoting Holiday Inns of Am., Inc. v. B & B Corp.,
409 F.2d 614, 618 (3d Cir. 1969)).
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"The relevant inquiry is
whether the movant is in danger of suffering irreparable harm at
the time the preliminary injunction is to be issued."
SI
Handling Sys., Inc. v. Heisley, 753 F.2d 1244, 1264 (3d Cir.
1985).
Here, Hernandez speaks to threats and the possibility of
future harm.
In addition, allegations that prison personnel have
used threatening language and gestures are not cognizable claims
under § 1983.
Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979)
(defendant laughed at prisoner and threatened to hang him); see
also McBride v. Deer, 240 F.3d 1287, 1291 (10th Cir. 2001)(taunts
and threats are not an Eighth Amendment violation); Prisoners’
Legal Ass’n v. Roberson, 822 F.Supp. 185, 189 (D.N.J. 1993)
(verbal harassment does not violate inmate's constitutional
rights).
Hernandez has not met the requisites for injunctive relief.
Therefore, the Court will deny the motion.
IV.
(D.I. 25.)
Motion for Stipulation for Immediate Retraction of the
Interstate Agreement between New Mexico and Delaware
Hernandez was transferred to Delaware pursuant to an
Interstate Compact Agreement between Delaware and New Mexico.
moves the Court for a retraction of the agreement.
(D.I. 26.)
He
Hernandez states that he would like to be closer to his family
and continue his rehabilitation.
In addition, he contends that
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he has demonstrated mental and physical abuse at the hands of
security and medical personnel.
The Interstate Corrections Compact is an agreement between
states, enacted by statute in each participating state, that
authorizes the transfer of one State’s prisoner to another
State’s prison.
(1983).
See Olim v. Wakinekona, 461 U.S. 238, 246
“The purpose of [the] compact is to provide for the
mutual development and execution of such programs of cooperation
for the confinement, treatment and rehabilitation of offenders
with the most economical use of human and material resources.”
11 Del. C. § 6571 Art. I (2001).
The Interstate Corrections Compact is a law of the State of
Delaware and not a federal law.
Hernandez asks the Court to
interfere with State proceedings but, in essence, he seeks a
transfer to the New Mexico Department of Correction.
The United
States Supreme Court has held that an inmate has no due process
right to be incarcerated in a particular institution whether it
be inside the state of conviction, or outside that state.
v. Wakinekona, 461 U.S. 238, 251(1983).
Hernandez the relief he seeks.
denied.
V.
Olim
The Court cannot provide
Therefore, the motion will be
(D.I. 26.)
Request for Counsel
Hernandez requests counsel on the grounds that the case is
complex, he is “unlearned” in the law, counsel would be
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beneficial and expedite a speeder resolution, and he has sought
counsel to no avail.
(D.I. 33.)
A pro se litigant proceeding in forma pauperis has no
constitutional or statutory right to representation by counsel.
See Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981); Parham v.
Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997).
However,
representation by counsel may be appropriate under certain
circumstances, if the court finds that Hernandez’s claim has
arguable merit in fact and law.
See Tabron v. Grace, 6 F.3d 147,
155 (3d Cir. 1993).
The Court should consider a number of factors when assessing
a request for counsel, including: (1) 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 Plaintiff to pursue
investigation; (4) Plaintiff’s capacity to retain counsel on his
own behalf; (5) the extent to which a case is likely to turn on
credibility determinations; and (6) whether the case will require
testimony from expert witnesses.
Tabron v. Grace, 6 F.3d at 155-
57; accord Parham, 126 F.3d at 457; Montgomery v. Pinchak, 294
F.3d 492, 499 (3d Cir. 2002).
Upon consideration of the record, the Court is not persuaded
that the request for counsel is warranted at this time.
unclear whether Hernandez’s claim has arguable merit.
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It is
Moreover,
he appears to have the ability to present his claims and there is
no evidence that prejudice will result in the absence of counsel.
More importantly, this case is in its early stages and, should
the need for counsel arise later, one can be appointed at that
time.
Therefore, the Court will deny without prejudice the
request for counsel.
VI.
Conclusion
For the reasons set forth above, Court will deny the motions
filed by Hernandez.
(D.I. 23, 24, 25, 26, 33.)
An appropriate Order accompanies this Opinion.
/s/ Noel S. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: August 9, 2011
At Camden, New Jersey
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