Nave v. Danberg et al

Filing 51

MEMORANDUM ORDER DENYING 38 MOTION Correct the Order of Payment re 5 Order (PLRA) for Pay Authorization, filed by Larry Dean Nave, 41 MOTION for Preliminary Injunction filed by Larry Dean Nave. Signed by Judge Leonard P. Stark on 2/28/13. (ntl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LARRY DEAN NAVE,
Plaintiff,
Civ. No. 11-673-LPS

V.

COMM. CARL DANBERG, et al.,
Defendants.

I

MEMORANDUM ORDER
Pending before the Court are Plaintiffs motion to correct the order of payment (D.I. 38)
and motion for preliminary injunction (D.I. 41) with supporting exhibit (D.I. 50). For the reasons
given below, the Court will deny the motions.

I.

BACKGROUND
Plaintiff Larry Dean Nave ("Plaintiff') filed this action on August 1, 2011, alleging

violations ofhis constitutional rights pursuant to 42 U.S.C. § 1983. (D.I. 3, 11) Plaintiff is
incarcerated at the James T. Vaughn Correctional Center in Smyrna, Delaware, appears pro se,
and has been granted leave to proceed in forma pauperis. (D.I. 5) On July 12, 2012 he filed a
motion to correct the order of payment, and on August 21, 2012 he filed a motion for preliminary
injunction.

II.

ORDER OF PAYMENT
Plaintiff alleges that the prison business office is incorrectly deducting monies from his

prison trust account when making filing fee payments. (0.1. 38) He asks the Court to issue a
new order to reflect the perceived incorrect accounting practice. The motion is DENIED. The

1

order is correct as entered.
III.

INJUNCTIVE RELIEF
A.

Leeal Standards

"A preliminary injunction is an extraordinary remedy that should be granted only if:
( 1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm to the
plaintiff; (3) granting the injunction will not result in irreparable harm to the defendant; and
(4) granting the injunction is in the public interest." NutraSweet Co. v. Vit-Mar Enters., Inc., 176
F.3d 151, 153 (3d Cir. 1999). Because ofthe intractable problems of prison administration, a
request for injunctive relief in the prison context must be viewed with considerable caution. See
Abraham v. Danberg, 322 F. App'x 169, 170 (3d Cir. Apr. 24, 2009) (not published) (citing Goff
v. Harper, 60 F.3d 518, 520 (8th Cir. 1995)).
B.

Discussion
1.

Retaliation

Plaintiff claims retaliation for filing the instant action occurred on unspecified dates by
"someone listed in this civil action" when Sgt. Gill ("Gill") visited Plaintiffs housing unit, even
though Gill is not assigned there. Plaintiff contends that Gill attempted to provoke Plaintiff into
a physical altercation. Plaintiff clams that C/0 Map called him a snitch on an unspecified date.
Neither Gill nor Map are defendants in this action. For relief, Plaintiff seeks a transfer to a
different correctional institution. 1 Defendants respond that injunctive relief is not appropriate ·

1

The Delaware Supreme Court has recognized that prison officials have discretion to
house inmates at the facilities they choose. See Walls v. Taylor, 856 A.2d 1067, 2004 WL
906550 (Del. Apr. 26, 2004) (table) (citing Brathwaite v. State, No. 169, 2003 (Del. Dec. 29,
2003)). Furthermore, 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 or outside the state
2

'

J

because Plaintiff has failed to demonstrate the required elements.
"Retaliation for the exercise of constitutionally protected rights is itself a violation of
rights secured by the Constitution actionable under§ 1983." White v. Napoleon, 897 F.2d 103,
111-12 (3d Cir. 1990). Proof of a retaliation claim requires a plaintiff demonstrate that: (1) he
engaged in protected activity; (2) he was subjected to adverse actions by a state actor; and (3) the
protected activity was a substantial motivating factor in the state actor's decision to take adverse
action. See Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (citing Mt. Healthy Bd of

Educ. v. Doyle, 429 U.S. 274, 287 (1977)). The causation element requires a plaintiff to prove
either: (1) an unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a
causal link. See Lauren W ex ref. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007);

Krouse v. American Sterilizer Co., 126 F.3d 494, 503-04 (3d Cir. 1997).
Gill's alleged acts do not rise to the level of a constitutional violation. Allegations that
prison personnel have used threatening language and gestures are not cognizable claims under
§ 1983. See Collins v. Cundy, 603 F.2d 825 (lOth Cir. 1979) (defendant laughed at prisoner and
threatened to hang him). Similarly, verbal abuse of a prisoner is not actionable under 42 U.S.C.
§ 1983. See Aleem-Xv. Westcott, 347 F. App'x 731 (3d Cir. Oct. 9, 2009); McBride v. Deer, 240
F.3d 1287, 1291 (lOth Cir. 2001) (taunts and threats not Eighth Amendment violation); Murray

v. Woodburn, 809 F.Supp. 383,384 (E.D. Pa. 1993); Prisoners' Legal Ass'n v. Roberson, 822 F.
Supp. 185, 189 (D.N.J. 1993) (verbal harassment does not violate inmate's constitutional rights).
Plaintiffs claim that Map called him a snitch is not so easily resolved. There can be

of conviction. See Olim v. Wakinekona, 461 U.S. 238,251 (1983).
3

serious implications in being labeled a "snitch" in prison. See Blizzard v. Hastings, 886 F. Supp.
405,410 (D. Del. 1995) (snitch label "can put a prisoner at risk ofbeing injured"). Nonetheless,
Map is not a defendant and, as discussed below, a causal connection is lacking.
Plaintiff engaged in protected activity when he filed the instant lawsuit. However, the
retaliatory acts complained of were not taken by any named defendant. By Plaintiffs admission,
he has no facts that any defendant encouraged the behavior of Gill or Map; he merely posits that
Gill and/or Map acted in the alleged manner upon direction by others. Finally, causation is not
demonstrated because it is unclear when the alleged acts took place.
For the above reasons, the Court finds that Plaintiff has failed to demonstrate the
likelihood of success on the merits. Nor is there indication that, at the present time, Plaintiff is in
danger of suffering irreparable harm. Therefore, the Court will deny the motion (D.I. 41).

2.

Medical

Plaintiffs exhibit, submitted in support of his motion, refers to a medical condition that
Plaintiff believes "could result in [his] death." (D.I. 50) Plaintiff was diagnosed with a cyst on
his kidney. Plaintiff claims that he is not provided with test results, that prison physicians lie to
him, and that his medical grievances are not addressed. He is concerned "due to the family
history of deaths in his family due to cancer." He states that he "may have cancer" and the
"sooner it is treated the better chance he has to live."
The Eighth Amendment proscription against cruel and unusual punishment requires that
prison officials provide inmates with adequate medical care. See Estelle v. Gamble, 429 U.S. 97,
103-05 (1976). However, in order to set forth a cognizable claim, an inmate must allege: (i) a
serious medical need and (ii) acts or omissions by prison officials that indicate deliberate
4

indifference to that need. See Estelle, 429 U.S. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999). A prison official is deliberately indifferent if he knows that a prisoner faces a
substantial risk of serious harm and fails to take reasonable steps to avoid the harm. See Farmer
v. Brennan, 511 U.S. 825, 837 (1994). A prison official may manifest deliberate indifference by
"intentionally denying or delaying access to medical care." Estelle, 429 U.S. at 104-05.
However, "a prisoner has no right to choose a specific form of medical treatment," as
long as the treatment provided is reasonable. Lasko v. Watts, 373 F. App'x 196,203 (3d Cir.
201 0) (internal quotation marks omitted). An inmate's claims against members of a prison
medical department are not viable under § 1983 where the inmate receives continuing care, but
believes that more should be done by way of diagnosis and treatment and that options available
to medical personnel were not pursued. See Estelle, 429 U.S. at 107.
It is apparent from Plaintiffs filings that he is receiving treatment for his medical
condition and is followed by a treatment plan. Based upon the filings, the Court finds that
Plaintiff has failed to demonstrate a likelihood of success on the merits with regard to his
concerns over medical treatment. Nor is there indication that, at the present time, Plaintiff is in
danger of suffering irreparable harm.
IV.

CONCLUSION
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

Plaintiffs Motion to Correct the Order of Payment (D.I. 38) is DENIED.

I
l

I
~

1

I

f

j
I

5