Shears v. Carter et al
Filing
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MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 3/7/17. (rw)
UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DAARON SHEARS,
Plaintiff
vs.
CORRECTIONAL OFFICER CARTER,
ET AL.,
Defendants
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No. 1:16-CV-01427
(Judge Kane)
MEMORANDUM
Background
On July 12, 2016, Plaintiff Daaron Shears, an inmate at
the State Correctional Institution at Frackville, Pennsylvania
(“SCI-Frackville”), filed a complaint under 42 U.S.C. § 1983
against two correctional officers and a registered nurse employed
at SCI-Frackville. (Doc. No. 1.)
Shears claims the correctional
officers, Carter and Chehovich, improperly required him to strip
search, used excessive force and sexually assaulted him. (Id.)
He
also claims that the registered nurse, Kathleen Shorts, failed to
provide him with medical care.(Id.) Shears requests declaratory
and injunctive relief and compensatory and punitive damages. Id.
Along with the complaint Shears filed a motion to
proceed in forma pauperis and an authorization to have funds
deducted from his prison trust fund account to pay the filing fee
in installments. On July 15, 2016, Shears filed a motion for a
temporary restraining order/preliminary injunction. (Doc. No. 9.)
By order of July 18, 2016, the court directed that the complaint
be served on Defendants named therein. (Doc. No. 10.)
On August
2, 2016, Defendants waived service of the complaint. (Doc. No.
14.) On August 25, 2016, Shears filed a second motion for a
temporary restraining order. (Doc. No. 19) On September 9, 2016,
the court issued an order (Doc. No. 33) deeming Shears’ first
motion for temporary restraining order (Doc. No. 9) withdrawn for
failing to file a supporting brief.
An answer to the complaint
was filed by Defendants on September 19, 2016. (Doc. No. 34.)
The purpose of this order is to address the second motion for a
temporary restraining order.
For the reasons set forth below the
court will deny the motion without prejudice.1
Discussion
The document which Shears filed was designated by him as
a “Temporary Restraining Order” and docketed by the Clerk as a
motion for temporary restraining order. (Doc. No. 19.)
The
motion consists of one page and states as follows, including the
grammatical and spelling errors:
[It is further ordered] that effective immediately, and
pending the hearing and determination of this order to
show cause, the Defendants [correctional officers (CO)
John Carter, Correctional Officer (CO) Clint Chehovich,
Registered Nurse (RN) Kathleen Shorts, SCI Frackville
Medical Department and the Frackville PRC Treatment
Team of the BMU Program.]
1. John Carter & Clint Chehovich area friends in there
Town locally & Carter has Officer Clint Chehovich taking
1. Shears has not filed a brief in support of his second motion.
Such a brief would trigger the Defendants’ obligation to respond
to the motion.
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fruit & food off of my trays at dinner time to were as
though Chehovich also tells me Carter said how do my
nutts feel. Please stop this problem.
2. Clint Chehovich calls me rapist telling me we don’t
believe your innocent that’s why you don’t deserve
testicals and penis “Fuck Boy”.. Chehovich also has
a relationship the deputy & major which the PRC
treatment team and they threaten to throw away all my
legal work depriving me from law work calling me
“competence”..
3. I’ve been having an allergic reaction to dairy
products & I have to begg for medical assistants when
im breaking out in hives and swelling up and they
take my money for sick calls don’t treat me with
medication telling me I shouldn’t have told on Carter,
Chehovich & Kathleen Shorts which works for SCI
Frackville Medical Department...
4. Medical is also playing with my seizure dose which
caused me to go into shock on 8-4-16....
5. I need a safer environment until the outcome of this
serious matter because I cant take what they’re doing
or ill committ suicide Please?
(Id.)
At the end of the page was a signature and date line under
which was handwritten “United States District Judge.” (Id.) It
would appear based on paragraph 5 that Shears is requesting as
relief an order directing that he be separated from the defendants
and transferred to another prison.2
2. It is well-settled that a prisoner has no justifiable
expectation that he will be incarcerated in a particular prison.
Olim v. Wakinekona, 461 U.S. 238 (1983). In Montanye v. Haymes,
427 U.S. 236, 242 (1976), the Supreme Court held that the
Fourteenth Amendment's Due Process Clause does not require a
hearing in connection with a transfer whether or not it is the
result of the inmate's misbehavior or may be labeled as
disciplinary or punitive. The inmate in Montanye had been
removed from his position as inmate clerk in the law library.
Id. at 237. Shortly thereafter, he was transferred to another
(continued...)
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The standard for deciding a motion for a temporary
restraining order is the same as the test for ruling on a motion
for a preliminary injunction.
Bieros v. Nicola, 857 F. Supp. 445,
446 (E.D. Pa. 1994). Preliminary injunctive relief is
extraordinary in nature, and is discretionary with the trial
judge.
Orson, Inc. v. Miramax Film Corp., 836 F. Supp. 309, 311
(E.D. Pa. 1993) (citing Skehan v. Board of Trustees of Bloomsburg
State College, 353 F. Supp. 542 (M.D. Pa. 1973)).
In determining
whether to grant a motion seeking preliminary injunctive relief,
courts in the Third Circuit consider the following four factors:
(1) the likelihood that the applicant will prevail on the merits;
(2) the extent to which the movant is being irreparably harmed by
the conduct complained; (3) the extent to which the non-moving
party will suffer irreparable harm if the preliminary injunction
is issued; and (4) whether granting preliminary injunctive relief
will be in the public interest.
S & R Corp. v. Jiffy Lube Int'l,
Inc., 968 F.2d 371, 374 (3d Cir. 1992) (citing Hoxworth v.
Blinder, Robinson & Co., 903 F.2d 186, 197-98 (3d Cir. 1990));
Instant Air Freight v. C.F. Air Freight, Inc., 882 F.2d 797, 800
2. (...continued)
institution after he was caught circulating a petition to a
federal judge signed by eighty-two other prisoners protesting the
inmate's removal from his position. Id. at 237-38. The Court
stated that "[a]s long as the conditions or degree of confinement
to which the prisoner is subjected is within the sentence imposed
upon him and is not otherwise violative of the Constitution, the
Due Process Clause does not in itself subject an inmate's
treatment by prison authorities to judicial oversight." Id. at
242.
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(3d Cir. 1989); Premier Dental Prods. Co. v. Darby Dental Supply
Co., 794 F.2d 850, 852 (3d Cir.), cert. denied, 479 U.S. 950
(1986).
It is the moving party that bears the burden of
demonstrating these factors.
See Dorfman v. Moorhous, No. Civ. A.
93-6120, 1993 WL 483166 at *1 (E.D. Pa., Nov. 24, 1993).
Perhaps the most important prerequisite for the issuance
of a preliminary injunction is a demonstration that if it is not
granted, the applicant is likely to suffer irreparable harm before
a decision on the merits can be rendered.
Continental Group, Inc.
v. Amoco Chems. Corp., 614 F.2d 351, 356 (3d Cir. 1980); see
Wright & Miller, Federal Practice and Procedure: Civil Sec. 2948
at 431 (1973).
The Third Circuit Court of Appeals has defined
irreparable injury as "potential harm which cannot be redressed by
a legal or equitable remedy following a trial." Instant Air
Freight, 882 F.2d at 801.
A court may not grant preliminary
injunctive relief unless "[t]he preliminary injunction [is] the
only way of protecting the plaintiff from harm."
Id. The relevant
inquiry is whether the party moving for the injunctive relief is
in danger of suffering the 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).
Clearly, speculative injury does not constitute a
showing of irreparable harm.
Continental, 614 F.2d at 359; see
also Public Serv. Co. v. West Newbury, 835 F.2d 380, 383 (1st Cir.
1987).
"The possibility that adequate compensatory or other
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corrective relief will be available at a later date, in the
ordinary course of litigation, weighs heavily against a claim of
irreparable harm."
Instant Air Freight, 882 F.2d at 801 (quoting
Sampson v. Murray, 415 U.S. 61, 90 (1964)).
Also, because the purpose of preliminary injunctive
relief is to prevent irreparable injury pending the resolution of
an underlying claim on the merits, the injury claimed in the
motion for preliminary injunctive relief must relate to the
conduct alleged and permanent relief sought in the plaintiff’s
complaint. See Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.
2010); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994);
It is abundantly clear that Shears has not set forth
fact demonstrating he deserves preliminary injunctive relief
according to the pertinent legal standards outlined above.
He has
not demonstrated that there is a likelihood of success on the
merits.
Furthermore, he has
not alleged facts or submitted
evidentiary materials from which it can be concluded that he will
suffer irreparable harm, i.e, “potential harm which cannot be
redressed by a legal or equitable remedy following a trial,” if
preliminary injunctive relief is denied.3
Instant Air Freight,
882 F.2d at 801.
Under the circumstances the court will deny without
prejudice Shears’ motion for a temporary restraining order and
3. Furthermore, Shears raises issues in his one-page motion
which were not raised in his underlying complaint.
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grant him an opportunity to file motion which complies with the
Local Rules of Court,
including filing a supporting brief,
and
which also specifies the relief requested and the basis for the
relief requested.4
An appropriate order will be entered.
Yvette Kane
United States District Judge
4. On July 12, 2016, a Standard Practice Order was issued which
advised Shears of the requirements of several of the Local Rules
of Court, including the rules relating to filing of motions with
the court. (Doc. No. 7.) Attached to the Standard Practice Order
were the Local Rules of Court referenced in the order. (Id.)
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