Books v. Hastings

Filing 17

MEMORANDUM ORDER denying 13 MOTION to Appoint Counsel, 16 MOTION to Appoint Counsel, 7 Letter/Motion for injunctive relief, without prejudice to renew. Signed by Judge Sue L. Robinson on 10/9/12. (maw)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

LEE G. BOOKS,
Plaintiff,

v.
SAMUEL C. HASTINGS,
Defendant.

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) Civ. No. 12-911-SLR
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MEMORANDUM ORDER

At Wilmington this CfYaay of October, 2012, having considered plaintiff's
letter/motion for injunctive relief and requests for counsel (D.1. 7, 13, 16);
IT IS ORDERED that the motion is denied and the requests for counsel are
denied without prejudice to renew, for the reasons that follow:
1. Background. Plaintiff Lee G. Books ("plaintifF), a prisoner housed at the
Sussex Correctional Institution, Georgetown, Delaware, filed this lawsuit pursuant to 42
U.S.C. § 1983. On September 11, 2012, plaintiff filed a letter/motion for preliminary
injunction to stop defendant's alleged retaliatory conduct as a result of the filing of this
lawsuit. (D.1. 7)
2. Standard. 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-MarEnterprises, Inc., 176 F.3d 151, 153 (3d Cir. 1999)

("NutraSweet II"). "[F]ailure to establish any element in [a plaintiff's] favor renders a
preliminary injunction inappropriate." NutraSweet 11,176 F.3d at 153. Furthermore,
because of the intractable problems of prison administration, a request for injunctive
relief in the prison context must be viewed with considerable caution. Rush v.
Correctional Med. Services, Inc., 287 F. App'x 142, 144 (3d Cir. 2008) (not published)
(citing Goffv. Harper, 60 F.3d 518,520 (8th Cir. 1995».
3. Plaintiff is concerned for his personal safety because of alleged harassment
by defendant CIO Hastings ("Hastings").1 Plaintiff asserts that Hastings had been
"eyeballing" him and talking to other officers about him. He further asserts that
Hastings questioned plaintiff's instructor about his behavior. According to plaintiff, he
cannot address his concerns with the institution because, if he writes to the Warden or
any of Hastings' superiors, the letters will be intercepted.
4. Discussion. Plaintiff seeks a transfer to another facility due to the alleged
retaliation by Hastings. Defendant asks the court to deny the motion on the basis that
plaintiff cannot show he is in immediate risk of irreparable harm. Defendant notes that
there are no allegations of direct threats and that plaintiff merely speculates Hastings is
a risk to his personal safety. Deputy warden Linda Valentino ("Valentino") states that
after plaintiff expressed his concerns to her about Hastings, plaintiff was advised that
Hastings would no longer supervise him and that plaintiff would only see Hastings while
going to and from school. (0.1. 14 Valentino aff.) In addition, Valentino ordered

1The complaint alleges that on December 8, 2011, Hastings used excessive
force when he restrained plaintiff following an altercation between plaintiff and
another inmate. (0.1. 2)
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Hastings not to have any contact with plaintiff. Finally, Valentino indicates that more
than likely, plaintiff will be released into the Crest program in mid-October and, when
that happens, plaintiff will no longer have contact with Hastings.
5. 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). Similarly,
verbal abuse of a prisoner is not actionable under 42 U.S.C. § 1983. Aleem-X v.
Westcott, 347 F. App'x 731 (3d Cir. 2009) (not published). See Murray v. Woodburn,
809 F.Supp. 383, 384 (E.D. Pa. 1993); 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).
6. Upon review of the allegations made by plaintiff, the court concludes that he
has not demonstrated the likelihood of success on the merits. There is no evidence
that, subsequent to plaintiffs filing of the instant complaint, Hastings has taken any
untoward action towards plaintiff. Moreover, when plaintiff voiced his concerns, steps
were taken by prison personnel to reduce contact between the two. In addition, there is
no indication that irreparable harm will result to plaintiff should an injunction not issue.
Finally, with regard to transfer to a different institution, the Delaware Supreme Court
has recognized that prison officials have discretion to house inmates at the facilities
they choose. Walls v. Taylor, 856 A.2d 1067,2004 WL 906550 (Del. 2004) (table)
(citing Brathwaite v. State, No. 169,2003 (Del. Dec. 29, 2003). Furthermore, the

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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. OHm v. Wakinekona, 461 U.S. 238, 251 (1983). Finally, granting
injunctive relief is in contravention of the public's interest in the effective and orderly
operation of its prison system. Carrigan v. State of Delaware, 957 F. Supp. 1376. 1385
(D. Del. 1997).
7. Requests for counsel. Plaintiff seeks counsel on the grounds that: (1) he is
unable to afford counsel; (2) the issues are complex; (3) he is moving to a different
facility and will no longer have access to a law library; (4) he has limited knowledge of
the law; and (5) he proceeds in forma pauperis. (D.1. 13, 16)
8. A pro se litigant proceeding in forma pauperis has no constitutional or
statutory right to representation by counsel. 2 See Brightwell v. Lehman, 637 F.3d 187,
192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However,
representation by counsel may be appropriate under certain circumstances, after a
finding that a plaintiffs claim has arguable merit in fact and law. Tabron, 6 F.3d at 155.
9. After passing this threshold inquiry, the court should consider a number of
factors when assessing a request for counsel, including:
(1) the plaintiffs 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 plaintiff to pursue investigation; (4) the plaintiffs capacity

to retain counsel on his own behalf; (5) the extent to which a

2See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now § 1915(e)(1» does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
being "request.".
.

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case is likely to turn on credibility determinations; and
(6) whether the case will require testimony from expert witnesses.
Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron, 6 F.3d at 155-57.

The list is not exhaustive, nor is anyone factor determinative. Id. at 157.
10. The issues in this case are not complex. Moreover, to date, plaintiff has
shown that he possesses the ability to adequately pursue his claims. Upon
consideration of the record, the court is not persuaded that appointment of counsel is
warranted at this time.
11. Conclusion. For the above reasons, the court denies plaintiffs
letter/motion for injunctive relief (0.1. 7) and denies plaintiffs requests for counsel (0.1.
13, 16) without prejudice to renew.

UNITED

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STA~

SOlS rRICT JUDGE