Hernandez v. Phelps et al
OPINION. Signed by Judge Noel L. Hillman on 6/27/12. (Please see Opinion for details)(dab)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT C. HERNANDEZ,
CIVIL NO. 10-726(NLH)(JS)
CPL R. DONOVAN, et al.,
Robert G. Hernandez
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977
Pro se plaintiff
Joseph Clement Handlon
Department of Justice
820 N. French Street, 6th Floor
Wilmington, DE 19801
On behalf of defendant Cpl. R. Donovan
HILLMAN, District Judge
Plaintiff, Robert G. Hernandez, a pro se litigant who is
presently incarcerated, filed this action pursuant to 42 U.S.C. §
Defendant Corporal Richard E. Donovan, II, filed a motion
seeking to dismiss plaintiff’s complaint on grounds that plaintiff
failed to exhaust his administrative remedies.
seeks a preliminary injunction against “officers” for the return of
his “legal work.”
For reasons explained below, defendant’s motion
to dismiss will be denied without prejudice and plaintiff’s motion
for injunctive relief will be denied.
Plaintiff Hernandez filed a complaint alleging violations
of his civil rights pursuant to 42 U.S.C. § 1983.
reviewed the original complaint and dismissed all claims except an
excessive force claim against defendant Donovan.
that on May 26, 2010 he and Donovan engaged in an altercation.
Hernandez alleges that Donovan grabbed his shirt and maced him.
Hernandez states that he pushed Donovan’s arm away.
Hernandez was charged with assault and housed in maximum security.
Hernandez also alleges that on October 3, 2011 prison
officials found contraband - two metal “pieces” -
in his property
and that “officers” confiscated everything including his “legal
He alleges that the legal work has not been returned in
retaliation for his civil suit.
Hernandez seeks an injunction and
asks that a retaliation claim be added to his complaint.
Plaintiff has alleged that defendant used excessive force
in violation of his Fourth Amendment right and, therefore, this
Court exercises subject matter jurisdiction pursuant to 28 U.S.C. §
1331 (federal question jurisdiction).
Motion to Dismiss
A court in reviewing a Rule 12(b)(6) motion must only
consider the facts alleged in the pleadings, the documents attached
thereto as exhibits, and matters of public record.
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993), cert. denied, 510 U.S. 1042, 114 S.Ct. 687, 126 L.Ed.2d
A court may consider “an undisputedly authentic
document that a defendant attaches as an exhibit to a motion to
dismiss if the plaintiff’s claims are based on the document.”
If any other matters outside the pleadings are
presented to the court, and the court does not exclude those
matters, a Rule 12(b)(6) motion will be treated as a summary
judgment motion pursuant to Rule 56. Fed.R.Civ.P. 12(d).
Here, defendant filed a motion to dismiss alleging that
Hernandez failed to exhaust his administrative remedies.1
to his motion is an affidavit of Kendall Hickman, the Inmate
Grievance Chairperson for the Delaware Department of Corrections
The Hickman affidavit attests that the inmate grievance
procedure for all DOC institutions is governed by Bureau of Prisons
Attached to the affidavit is a copy of the written
Hickman also attests that he reviewed all
records of grievances and appeals filed by Hernandez and confirms
that Hernandez never filed a grievance concerning the May 26, 2009
incident involving Donovan.
Under the Prison Litigation Reform Act, a prisoner must
exhaust all available administrative remedies prior to filing
suit. 42 U.S.C. § 1997e(a); Ahmed v. Dragovich, 297 F.3d 201, 209
n. 9 (3d Cir. 2002).
In response, Hernandez states that “grievances were filed
(sic) handed to staff working the Behavior Modification Unit” on
May 27, 29 and 31, 2009.
of the forms.
However, Hernandez does not attach copies
Hernandez also alleges that getting a “grievance was
very difficult” and that he was in the isolation unit.
alleges that the policies and procedures are not accessible by
Donovan did not file a reply.
In order to rule on Dononvan’s motion to dismiss, the
Court must consider the Hickman affidavit and the attached inmate
Although a defendant may submit an “indisputably
authentic copy” of the relevant administrative document setting
forth remedy procedures to the court to be considered on a motion
to dismiss without converting it to a motion for summary judgment,
see Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004),
“[r]eliance on declarations from prison officials or Corrections
Department administrators requires conversion.”
F. App’x 1, 3 (3d Cir. 2008).
Berry v. Klem, 283
Thus, it is appropriate to convert
Donovan’s motion to dismiss to a motion for summary judgment.
Fed.R.Civ.P. 12(d); Burns v. Harris County Bail Bond Bd., 139 F.3d
513, 517 (5th Cir. 1998) (“When matters outside the pleadings are
presented to and not excluded by the district court, the district
court must convert a motion to dismiss into a motion for summary
When converting a 12(b)(6) motion to one for summary
judgment “all parties must be given a reasonable opportunity to
present all the material that is pertinent the motion.”
Generally, a court should give notice of its
intent to convert a defendant’s motion to dismiss into a motion for
summary judgment so that the plaintiff is not subjected to “summary
judgment by ambush.”
In re Bayside Prison Litig., 190 F.Supp.2d
755, 760 (D.N.J. 2002).
Here, the Court finds that Hernandez was not on
sufficient notice that the motion to dismiss would be converted to
a motion for summary judgment.
Cf., Serbin v. Consolidated Rail
Corp., 140 F. App’x 336, 337 n. 1 (3d Cir. 2005) (finding plaintiff
“knew that the motion could be treated as one for summary judgment”
where defendant filed a “motion to dismiss, or in the alternative,
for summary judgment”) (citing Hilfirty v. Shipman, 91 F.3d 573,
579 (3d Cir. 1996)).
Also, Hernandez has argued that he did file
grievance forms but failed to attach copies of the forms.
failed to explain his alleged difficulty pursuing his grievance
claims at SCI.
See Berry, 283 F. App’x at 5 (finding improper for
district court to grant converted motion for summary judgment where
it concluded plaintiff’s argument in response to claim of failure
to exhaust administrative remedies was not properly supported).
Therefore, defendant’s motion to dismiss will be denied
without prejudice to refile as a motion for summary judgment.
Motion for Preliminary Injunction
Hernandez filed a motion for preliminary injunction
stating that “officers” had confiscated his legal work after having
found contraband (two metal pieces) in his possession.
further states that officers “reading or destroying paperwork or
losing paperwork property or legal mail” has been a problem and
requests that the Court enter an injunction and investigate the
Hernandez also requests that a retaliation claim be added
to his complaint.
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).
“may not be used simply to eliminate a possibility of a remote
future injury, or a future invasion of rights."
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)).
"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).
Hernandez’s motion will be denied.
As an initial matter,
plaintiff’s general claims regarding the seizure of unspecified
paperwork is too vague to warrant the imposition of the
extraordinary relief of an injunction.
Nowhere does he set forth
exactly what was taken, when, or by whom, and how the confiscation
of his “legal work” impacted his ability to litigate a pending
matter or otherwise impeded his access to the courts or legal
He has, therefore, not shown that he has been irreparably
harmed by the seizure.
Moreover, it appears by his own admission
that the papers were seized in conjunction with items determined to
He is unlikely, therefore, to succeed on the merits
of his claim that the retention of his papers was unlawful.
Tucker v. New York Police Dept., 408 Fed.Appx. 513, 517 (3d Cir.
2010) (finding district court correctly denied injunction requiring
police to return property because plaintiff was unlikely to succeed
on the merits of his wrongful-retention-of-property claim).
regard to adding a retaliation claim, Hernandez may file a motion
seeking leave to file an amended complaint.
s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
June 27, 2012
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