Milhouse v. Heath et al

Filing 64

MEMORANDUM re REPORT AND RECOMMENDATIONS 48 of MJ Mehalchick and mtns for PI 24 , to Compel 51 and 54 , to Supplement 53 , to Appoint Counsel 56 , of Inquiry 57 , and for Leave to File 59 . (order to follow as separate entry)Signed by Honorable Sylvia H. Rambo on 3/3/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KAREEM HASSAN MILHOUSE,
Plaintiff
v.
SUZANNE HEATH, et al.,
Defendants

:
:
:
:
:
:
:
:
:

Civ. No. 1:15-cv-1400

Magistrate Judge Mehalchick
Judge Rambo

MEMORANDUM
Before the court is a report and recommendation filed by Magistrate
Judge Mehalchick in which she recommends that Milhouse’s motion for a
preliminary injunction be denied. Milhouse has filed objections to the report and
recommendation. Defendants have not responded.
For the reasons set forth below, the report and recommendation will be
adopted.
I.

The Report and Recommendation
On July 20, 2015, Milhouse filed a combination Bivens civil rights

complaint and a Federal Tort Claims Action (“FTCA”). (Doc. 1.) On November
24, 2015, he filed the instant motion for a preliminary injunction. (Doc. 24.)1
Milhouse seeks “protective custody” and a transfer from USP Lewisburg.
He claims that other inmates assault him because he is deemed to be a “rat” and a
“homosexual.” (Doc. 48.)
1

Milhouse previously filed two other motions for preliminary injunctions (Docs. 6 & 9), which
were both denied (Doc. 28).

The instant motion was apparently investigated after a fight with his
cellmate on November 17, 2015. A disciplinary hearing was held concerning this
incident in which both cellmates were found guilty of fighting. Milhouse alleges
that, as a result of that incident, he is in danger of possible future assaults and
needs a transfer.
In her report and recommendation, the magistrate judge set forth the
elements that are required for the issuance of a preliminary injunction, i.e., (1)
likelihood of success on the merits; (2) irreparable harm resulting from a denial of
the relief; (3) the harm to the non-moving party if relief is granted; and (4) the
public interest. The magistrate judge recommended dismissal of the motion on
Milhouse’s failure to meet the “irreparable harm” factor.
The magistrate judge noted that Milhouse has not demonstrated that there
is a presently existing actual threat to his safety. Irreparable harm must be actual
and imminent, not merely speculative. (Doc. 48, p. 4.)
In his objection to the report and recommendation, Milhouse claims that
he is not relying only on the incident of November 17, 2015, but also on incidents
that occurred on December 18, 2014 and August 5, 2015. However, the magistrate
judge refused to consider these incidents as she previously addressed them in prior
orders. (Doc. 48, p. 3 n.2.)

2

Milhouse also indicates that the video footage taken of the conflict that
occurred on November 17, 2015 is in conflict with the DHO finding (Doc. 50 ¶ 1)
and would show that he was assaulted. A review of the DHO officer report (Doc.
32-1, attachment A to Declaration of D. Knapp) shows that “there was no video
footage available for review capable of proving with any degree of certainty what
actually transpired inside cell-121 during the incident.”
Milhouse did not attend the disciplinary hearing where he could have
provided his version of the fight and could have presented his concerns about his
safety.
The report and recommendation will be adopted.
II.

Additional Documents Filed Since the Filing of the Report and
Recommendation
On February 8, 2016, a motion to compel with a supporting brief was

filed. (Docs. 51 & 52.) The motion seeks a court order compelling USP
Lewisburg to issue Milhouse more writing paper, envelopes, and access to the law
library. On February 12, 2016, Milhouse filed another motion and supporting brief
(Docs. 57 & 58) seeking the same relief. It appears that the twelve sheets of paper
and five envelopes he receives each week are inadequate to meet his litigation
purposes.
On February 11, 2016, Milhouse filed a motion and supporting brief
requesting this court to order USP Lewisburg to give him access to the law library.
3

(Docs. 54 & 55.) He claims that he has not had access to the library since
November 8, 2015.
A review of the court documents show that in the year 2015, Milhouse
has been a petitioner in two cases and a plaintiff in six cases. Milhouse must
choose what issues he can present that have plausible merit. This court will not
compel USP Lewisburg to incur costs to provide more paper to a litigious inmate
as compared to other inmates.
Milhouse’s restriction on the use of the law library is undoubtedly due to
his confinement in the SMU. However, the institution should not be preventing
him total access to the library. The motions to compel will be denied without
prejudice to renew the access to the law library issue.
On November 11, 2016, Milhouse filed a motion for appointment of
counsel. (Doc. 56.) Milhouse, as noted above, appears to be capable of litigating
without the aid of counsel. That motion will be denied.
On November 11, 2016, Milhouse also filed a motion to add exhibit 2000
A. (Doc. 53.) No brief in support thereof has been filed as required by Middle
District Local Rule 7.5. This motion will be denied.
On February 22, 2016, Milhouse filed a motion with supporting brief to
add exhibits 2000 and 1000 A in support of his motion for a preliminary
injunction. (Docs. 59 & 60.) These exhibits are documents apparently pertinent to
4

an incident which occurred on February 15, 2016. Milhouse does not explain how
these exhibits are pertinent to his motion for a preliminary injunction. This motion
will be denied.
On February 25, 2016, Milhouse filed a motion of inquiry and brief in
support. (Docs. 61 & 62.) This motion will be denied as it alleges facts that are
not pertinent to the pending action.
An appropriate order will issue.

s/Sylvia H. Rambo
United States District Judge
Dated: March 3, 2016

5