Robertson v. Samuels et al

Filing 19

REPORT AND RECOMMENDATION - IT IS RECOMMENDED as follows: (1) Defendants Samuels and Thomas Should be dismissed with prejudice; (2) Robertsons motion for protective order (Doc. 13), which seeks wide-ranging injunctive relief should be denied without prejudice; and (3) The complaint should be served on the sole remaining named defendant Dr. Pigos. Objections to R&R due by 1/24/2014. Signed by Magistrate Judge Martin C. Carlson on January 6, 2014. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARCO MIGUEL ROBERTSON,
Plaintiff,
v.
CHARLES SAMUELS, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

Civil No. 3:13-CV-2500

( Judge Caputo)
(Magistrate Judge Carlson)

REPORT AND RECOMMENDATION
I.

Statement of Facts and of The Case

This pro se civil rights case was initially filed by the plaintiff, a federal
prisoner, against the head of the Bureau of Prisons, and the warden and clinical
medical director at the United States Penitentiary, Lewisburg, J.E. Thomas, and Dr.
Kevin Pigos. In his complaint, Robertson described injuries he allegedly received at
the hands of a fellow inmate in December 2011, and alleged that individual prison
staff at the Lewisburg Penitentiary who are not named as defendants subsequently
neglected to address his medical concerns, or otherwise mistreated him. (Doc. 1)
However, notably lacking from this complaint were factual averments relating to the
supervisory defendants actually named by Robertson in this action. Indeed, the
narrative section of Robertson’s complaint contained no well-pleaded allegations

whatsoever with respect to defendants Samuels and Thomas. As to defendant Pigos
the complaint simply alleged that Dr. Pigos denied Robertson surgery he requested
in May of 2012. (Id.)
We granted Robertson’s motion for leave to proceed in forma pauperis, (Doc.
2), but as part of our legally-mandated screening review we found that Robertson had
failed to state a claim upon which relief may be granted with respect to supervisory
defendants Samuels and Thomas. Therefore, we recommended that the Court dismiss
the claims lodged against these defendants for failure to state a claim upon which
relief can be granted, but without prejudice to allowing the plaintiff to attempt to
correct the deficiencies noted in this report and recommendation by filing an amended
complaint.

(Doc. 6)

On November 7, 2013, the district court adopted this

recommendation and dismissed the claims against defendants Samuels and Thomas,
without prejudice to the filing of an amended complaint by Robertson, provided
Robertson acted within 20 days. (Doc. 11)
Robertson did not respond to this order by filing an amended complaint.
Instead, Robertson filed a pleading, styled a motion for protective order, (Doc. 13),
which was in fact a motion for preliminary injunction that invited this Court to find
in his favor on the merits of this complaint, order the transfer of the plaintiff to
another prison, and specifically prescribe the medical care he should receive.
-2-

For the reasons set forth below, it is now recommended as follows: (1)
defendants Samuels and Thomas should be dismissed from this action with prejudice;
(2) Robertson’s motion for injunctive relief should be denied without prejudice; and
(3) the complaint should be served on the sole remaining named defendant Dr. Pigos.
II.

Discussion

A.

Defendants Samuels and Thomas Should Be Dismissed With
Prejudice

At the outset, in this case Robertson was given this opportunity to further
amend his complaint, but has now forfeited this opportunity through his inaction. In
this situation, where a deficient complaint is dismissed as to some defendants without
prejudice but the pro se plaintiff refuses to timely amend the complaint, it is well
within the court’s discretion to dismiss the complaint with prejudice given the
plaintiff’s refusal to comply with court directives. Indeed, the precise course was
endorsed by the United States Court of Appeals for the Third Circuit in Pruden v. SCI
Camp Hill, 252 F. App'x 436, 438 (3d Cir. 2007). In Pruden, the appellate court
addressed how district judges should exercise discretion when a pro se plaintiff
ignores instructions to amend a complaint. In terms that are equally applicable here
the court observed that:
The District Court dismissed the complaint without prejudice and
allowed [the pro se plaintiff] twenty days in which to file an amended
-3-

complaint. [The pro se plaintiff] failed to do so. Because [the pro se
plaintiff] decided not to amend his complaint in accordance with the
Federal Rules of Civil Procedure, we conclude that the District Court
did not abuse its discretion when it dismissed [the pro se plaintiff’s]
complaint with prejudice. See In re Westinghouse Securities Litigation,
90 F.3d 696, 704 (3d Cir.1996). The District Court expressly warned
[the pro se plaintiff] that the failure to amend his complaint would result
in dismissal of the action with prejudice. “[I]t is difficult to conceive of
what other course the court could have followed.” Id. (quoting Spain v.
Gallegos, 26 F.3d 439, 455 (3d Cir.1994)).
Pruden v. SCI Camp Hill, 252 F. App'x 436, 438 (3d Cir. 2007).
Therefore, it is recommended that the complaint be dismissed as to defendants
Samuels and Thomas as frivolous for failure to state a claim without further leave to
amend.
B.

Robertson’s Motion for Protective Order, Which Seeks a
Preliminary Injunction under Rule 65, Should Be Denied

As for Robertson’s motion for protective order, which requests wide-ranging
injunctive relief in the form of an order (1) finding in his favor on the merits of this
complaint, (2) directing the transfer of the plaintiff to another prison, and (3)
specifically prescribing the medical care he should receive, inmate pro se pleadings,
like those filed here, which seek extraordinary, or emergency relief, in the form of
preliminary injunctions are governed by Rule 65 of the Federal Rules of Civil
Procedure and are judged against exacting legal standards. As the United States
Court of Appeals for the Third Circuit has explained: “Four factors govern a district
-4-

court’s decision whether to issue a preliminary injunction: (1) whether the movant
has shown a reasonable probability of success on the merits; (2) whether the movant
will be irreparably injured by denial of the relief, (3) whether granting preliminary
relief will result in even greater harm to the nonmoving party; and (4) whether
granting the preliminary relief will be in the public interest.” Gerardi v. Pelullo, 16
F.3d 1363, 1373 (3d Cir. 1994) (quoting SI Handling Systems, Inc. v. Heisley, 753
F.2d 1244, 1254 (3d Cir. 1985)). See also Highmark, Inc. v. UPMC Health Plan, Inc.,
276 F.3d 160, 170-71 (3d Cir. 2001); Emile v. SCI-Pittsburgh, No. 04-974, 2006 WL
2773261, *6 (W.D.Pa. Sept. 24, 2006)(denying inmate preliminary injunction).
A preliminary injunction is not granted as a matter of right. Kerschner v.
Mazurkewicz, 670 F.2d 440, 443 (3d Cir. 1982) (affirming denial of prisoner motion
for preliminary injunction seeking greater access to legal materials). It is an
extraordinary remedy. Given the extraordinary nature of this form of relief, a motion
for preliminary injunction places precise burdens on the moving party. As a threshold
matter, “it is a movant's burden to show that the ‘preliminary injunction must be the
only way of protecting the plaintiff from harm.’ ” Emile, 2006 WL 2773261, at * 6
(quoting Campbell Soup Co. v. ConAgra, Inc., 977 F .2d 86, 91 (3d Cir.1992)). Thus,
when considering such requests, courts are cautioned that:

-5-

“[A] preliminary injunction is an extraordinary and drastic remedy, one
that should not be granted unless the movant, by a clear showing, carries
the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (emphasis deleted). Furthermore, the Court must recognize that
an “[i]njunction is an equitable remedy which should not be lightly
indulged in, but used sparingly and only in a clear and plain case.” Plain
Dealer Publishing Co. v. Cleveland Typographical Union # 53, 520 F.2d
1220, 1230 (6th Cir.1975), cert. denied, 428 U.S. 909 (1977). As a
corollary to the principle that preliminary injunctions should issue only
in a clear and plain case, the Court of Appeals for the Third Circuit has
observed that “upon an application for a preliminary injunction to doubt
is to deny.” Madison Square Garden Corp. v. Braddock, 90 F.2d 924,
927 (3d Cir.1937).
Emile, 2006 WL 2773261, at *6.
Accordingly, for an inmate to sustain his burden of proof that he is entitled to a
preliminary injunction under Fed.R.Civ.P. 65, he must demonstrate both a reasonable
likelihood of success on the merits, and that he will be irreparably harmed if the
requested relief is not granted. Abu-Jamal v. Price, 154 F.3d 128, 133 (3d Cir. 1998);
Kershner, 670 F.2d at 443. If the movant fails to carry this burden on either of these
elements, the motion should be denied since a party seeking such relief must
"demonstrate both a likelihood of success on the merits and the probability of
irreparable harm if relief is not granted." Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.
1989)(emphasis in original), (quoting Morton v. Beyer, 822 F.2d 364 (3d Cir. 1987)).
These limitations on the power of courts to enter injunctions in a correctional
context are further underscored by statute. Specifically, 18 U.S.C. §3626 limits the
-6-

authority of courts to enjoin the exercise of discretion by prison officials, and
provides that:
Prospective relief in any civil action with respect to prison conditions
shall extend no further than necessary to correct the violation of the
Federal right of a particular plaintiff or plaintiffs. The court shall not
grant or approve any prospective relief unless the court finds that such
relief is narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary
to correct the violation of the Federal right. The court shall give
substantial weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the relief.
18 U.S.C.A. § 3626(a)(1)(A).
With respect to preliminary injunctions sought by inmates, courts are also
instructed that:
Preliminary injunctive relief must be narrowly drawn, extend no further
than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct that harm.
The court shall give substantial weight to any adverse impact on public
safety or the operation of a criminal justice system caused by the
preliminary relief and shall respect the principles of comity . . . in
tailoring any preliminary relief.
18 U.S.C.A. § 3626(a)(2).
Furthermore, several other basic legal tenets guide our discretion in this
particular case, where an inmate: (1) seeks to enjoin a wide array of non-parties; (2)
requests injunctive relief of a presumably permanent nature without first fully
exhausting administrative remedies; and (3) requests relief which goes beyond
-7-

merely preserving the status quo in this litigation, but seeks to impose new,
mandatory conditions on prison officials. Each of these aspects of Robertson’s prayer
for injunctive relief presents separate problems and concerns.
For example, an injunction against non-parties, like the injunction sought here,
requires a specific legal showing. To the extent that Robertson seeks to enjoin nonparties in this litigation it is clear that: “[a] non-party cannot be bound by the terms
of an injunction unless the non-party is found to be acting ‘in active concert or
participation’ with the party against whom injunctive relief is sought. Fed.R.Civ.P.
65(d).” Elliott v. Kiesewetter, 98 F.3d 47, 56 (3d Cir. 1996).
Further, where the requested preliminary injunction “is directed not merely at
preserving the status quo but...at providing mandatory relief, the burden on the
moving party is particularly heavy.” Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.
1980). Mandatory injunctions should be used sparingly. United States v. Price, 688
F.2d 204, 212 (3d Cir. 1982). Thus, a request for some form of mandatory proactive
injunctive relief in the prison context “must always be viewed with great caution
because judicial restraint is especially called for in dealing with the complex and
intractable problems of prison administration.” Goff v. Harper, 60 F.3d 518 (3d Cir.
1995).

-8-

In addition, to the extent that the plaintiff seeks a preliminary injunction with
some enduring effect, he must show that he will be irreparably injured by the denial
of this extraordinary relief. With respect to this benchmark standard for a preliminary
injunction, in this context it is clear that:
Irreparable injury is established by showing that plaintiff will suffer
harm that “cannot be redressed by a legal or an equitable remedy
following trial.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882
F.2d 797, 801 (3d Cir.1989) (“The preliminary injunction must be the
only way of protecting the plaintiff from harm”). Plaintiff bears this
burden of showing irreparable injury. Hohe v. Casey, 868 F.2d 69, 72
(3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102
(1989). In fact, the plaintiff must show immediate irreparable injury,
which is more than merely serious or substantial harm. ECRI v.
McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.1987). The case law
provides some assistance in determining that injury which is irreparable
under this standard. “The word irreparable connotes ‘that which cannot
be repaired, retrieved, put down again, atoned for ...’.” Acierno v. New
Castle County, 40 F.3d 645, 653 (3d Cir.1994) (citations omitted).
Additionally, “the claimed injury cannot merely be possible, speculative
or remote.”
Dice v. Clinicorp, Inc., 887 F.Supp. 803, 809
(W.D.Pa.1995). An injunction is not issued “simply to eliminate the
possibility of a remote future injury ...” Acierno, 40 F.3d at 655
(citation omitted).
Messner, 2009 WL 1406986, at *4 .
Furthermore, it is well-settled that “[t]he purpose of a preliminary injunction
is to preserve the status quo, not to decide the issues on their merits.” Anderson v.
Davila, 125 F.3d 148, 156 (3d Cir. 1997). Therefore, in a case such as this, where the
inmate-“Plaintiff's request for immediate relief in his motion for preliminary
-9-

injunction necessarily seeks resolution of one of the ultimate issues presented in [the]
. . . Complaint, . . . [the] Plaintiff cannot demonstrate that [s]he will suffer irreparable
harm if he is not granted a preliminary injunction, because the ultimate issue
presented will be decided either by this Court, upon consideration of Defendants'
motion to dismiss, or at trial. As a result, Plaintiff's motion for preliminary injunction
should be denied.” Messner, 2009 WL 1406986, at *5.
In assessing a motion for preliminary injunction, the court must also consider
the possible harm to other interested parties if the relief is granted. Kershner, 670
F.2d at 443. Finally, a party who seeks an injunction must show that the issuance of
the injunctive relief would not be adverse to the public interest. Emile, 2006 WL
2773261, at * 6 (citing Dominion Video Satellite, Inc. v. Echostar Corp., 269 F.3d
1149, 1154 (10th Cir. 2001)).
Judged against these standards, Robertson’s request for injunctive relief
should be denied without prejudice at this time for several reasons.
First, Robertson has not shown a likelihood of success on the merits of his
claims, an essential prerequisite to injunctive relief. Quite the contrary, many of his
claims have been dismissed upon an initial screening assessment of the complaint.
Second, in this motion Robertson seeks not only to enjoin the named
defendants, but also seeks proactive relief which would affect the actions of other
-10-

prison officials in other institutions. Thus, Robertson appears to seek to enjoin
numerous individuals who are not parties to the instant lawsuit. This effort, in turn,
runs afoul of the:
“[G]eneral rule that a court may not enter an injunction against a person
who has not been made a party to the case before it.” Additive Controls
& Measurement Sys., Inc. v. Flowdata, Inc., 96 F.3d 1390, 1394
(Fed.Cir.1996) (citing Scott v. Donald, 165 U.S. 107, 117, 17 S.Ct. 262,
41 L.Ed. 648 (1897) (“The decree is also objectionable because it
enjoins persons not parties to the suit.”)). Indeed, courts have refused
to issue injunctions against non-parties. See U.S. Commodity Futures
Trading Comm'n v. Amaranth Advisors, LLC, 523 F.Supp.2d 328,
334–35 (S.D.N.Y.2007) (the court denied the defendant's motion for a
preliminary injunction against the Federal Energy Regulatory
Commission because it was not a party to the suit and it was not an
“officer, agent, servant, employee, or attorney” of any party); Williams
v. Platt, Civ. No. 03–281–C, 2006 WL 149024 at *2 (W.D.Okla. Jan.18,
2006) (unpublished) (the court denied the plaintiff's motion for an
injunction noting that he had “not established a relationship between the
preliminary injunction and the underlying civil rights claim, and he
seeks to bind non-parties without any suggestion of active concert or
participation by the named defendants”). Moreover, once a court has
issued an injunction against a party, that injunction may only be
enforced against non-parties that are officers, agents, servants,
employees, or attorneys of a party, or ones that are in active concert or
participation with such non-parties or the party itself. Fed.R.Civ.P.
65(d)(2). To be bound by an injunction, a “non-party must have
constructively had his day in court.” Harris County, Tex. v. CarMax
Auto Superstores Inc., 177 F.3d 306, 314 (5th Cir.1999) (“the relevant
inquiry is ... whether [the non-party] had such a key role in the
corporation's participation in the injunction proceedings that it can be
fairly said that he has had his day in court in relation to the validity of
the injunction.”) (citation omitted) (emphasis in original).

-11-

Banks v. Good, CA 06-253, 2011 WL 2437061 (W.D. Pa. Apr. 20, 2011) report and
recommendation adopted, CA 06-253, 2011 WL 2418699 (W.D. Pa. June 14, 2011).
Further, Robertson’s motion seeks relief which goes directly to the ultimate
issues in this lawsuit. In a case such as this, where the inmate-“Plaintiff's request for
immediate relief in his motion for preliminary injunction necessarily seeks resolution
of one of the ultimate issues presented in [the] . . . Complaint, . . . [the] Plaintiff
cannot demonstrate that [s]he will suffer irreparable harm if he is not granted a
preliminary injunction, because the ultimate issue presented will be decided either by
this Court, upon consideration of Defendants' motion to dismiss, or at trial. As a
result, Plaintiff's motion for preliminary injunction should be denied.” Messner, 2009
WL 1406986, at *5.
Moreover, while we do not in any way diminish Robertson’s complaints, we
find that this inmate has not shown an immediate irreparable harm justifying a
preliminary injunction. See e.g., Rivera v. Pennsylvania Dep’t. Of Corrections, 346
F. App’x 749 (3d Cir. 2009)(denying inmate request for injunction); Rush v.
Correctional Medical Services, Inc., 287 F. App’x 142 (3d Cir. 2008)(same). In this
regard, when considering this benchmark standard for a preliminary injunction, it is
clear that: “Irreparable injury is established by showing that Plaintiff will suffer harm
that ‘cannot be redressed by a legal or an equitable remedy following trial.’ Instant
-12-

Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir.1989) (‘The
preliminary injunction must be the only way of protecting the plaintiff from harm’).”
Messner, 2009 WL 1406986, at *4. In this context, the word irreparable has a
specific meaning and connotes “that which cannot be repaired, retrieved, put down
again, [or] atoned for ....” Acierno v. New Castle County, 40 F.3d 645, 653 (3d
Cir.1994) (citations omitted). Thus, an injunction will not issue “simply to eliminate
the possibility of a remote future injury ...” Acierno, 40 F.3d at 655 (citation omitted).
Therefore, where an inmate-plaintiff is alleging that damages may be an adequate
remedy, a preliminary injunction is often not appropriate since the inmate has not
shown that he faces immediate, irreparable harm. Rivera v. Pennsylvania Dep’t. Of
Corrections, 346 F.App’x 749 (3d Cir. 2009); Rush v. Correctional Medical Services,
Inc., 287 F.App’x 142 (3d Cir. 2008).
Finally, we also note that granting this injunctive relief, which would
effectively have the federal courts making ad hoc, and individual, decisions
concerning the treatment of a single prisoner, could harm both the defendants’ and
the public’s interest. In this prison context, the Defendants’ interests and the public’s
interest in penological order could be adversely effected if the Court began dictating
the treatment for the plaintiff, one inmate out of thousands in the federal prison
system. Therefore, consideration of “whether granting preliminary relief will result
-13-

in even greater harm to the nonmoving party; and . . . whether granting the
preliminary relief will be in the public interest,” Gerardi v. Pelullo, 16 F.3d 1363,
1373 (3d Cir. 1994), also weighs heavily against Robertson in this case.
In sum, in this case Robertson has not demonstrated a likelihood of success on
the merits, and has not shown that he suffers an irreparable harm. Moreover, this
motion is procedurally flawed, and granting this extraordinary relief could harm the
public’s interest and the interests of the opposing parties. Therefore, an assessment
of the factors which govern issuance of such relief under Rule 65 of the Federal
Rules of Civil Procedure weighs against Robertson and compels us to recommend
that the Court deny this motion.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED as follows:
(1)

Defendants Samuels and Thomas Should be dismissed with
prejudice;

(2)

Robertson’s motion for protective order (Doc. 13), which seeks
wide-ranging injunctive relief should be denied without
prejudice; and

(3)

The complaint should be served on the sole remaining named
defendant Dr. Pigos.
-14-

The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings,
recommendations or report addressing a motion or matter described in
28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within fourteen
(14) days after being served with a copy thereof. Such party shall file
with the clerk of court, and serve on the magistrate judge and all parties,
written objections which shall specifically identify the portions of the
proposed findings, recommendations or report to which objection is
made and the basis for such objections. The briefing requirements set
forth in Local Rule 72.2 shall apply. A judge shall make a de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made and may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge, however,
need conduct a new hearing only in his or her discretion or where
required by law, and may consider the record developed before the
magistrate judge, making his or her own determination on the basis of
that record. The judge may also receive further evidence, recall
witnesses or recommit the matter to the magistrate judge with
instructions.

Submitted this 6th day of January, 2014.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

-15-