Herrera v. Lackawanna County Prison Warden

Filing 7

MEMORANDUM (Order to follow as separate docket entry) Signed by Honorable Malachy E Mannion on 1/18/23. (ao)

Case 3:22-cv-01998-MEM-DB Document 7 Filed 01/18/23 Page 1 of 8

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY E. HERRERA,

:

Plaintiff
v.
WARDEN, LACKAWANNA
COUNTY PRISON,

:

CIVIL ACTION NO. 3:22-1998

:

(JUDGE MANNION)

:
:

Defendant

MEMORANDUM
I.

BACKGROUND
Plaintiff, Jeffrey E. Herrera, an inmate confined at the Lackawanna

County Prison, Pennsylvania, commenced this action by filing a Motion for
Preliminary Injunction. (Doc. 1). This motion, however, was unaccompanied
by a complaint or filing fee/motion for leave to proceed in forma pauperis.
Subsequent to the filing of his motion, Plaintiff filed a motion for leave to
proceed in forma pauperis. (Doc. 5).
In his Motion for Preliminary Injunction, Plaintiff claims that he is being
denied access to the courts by being denied “legal supplies that are meant
to be given out to indigent inmates on a regular basis” and “has been forced
to barter food trays for pens” and “steal stationary.” (Doc. 1). He “believes

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this to be retaliatory action.” Id. He “asserts that his right to petition and
access to the courts are being infringed,” and that “without supplies he will
be unable to carry on as pro-se litigant.” Id.
Plaintiffs request that his Court issue an order supplying Plaintiff “with
legal supplies.” Id.
For the reasons that follow, the court will deny the Motion for
Preliminary Injunction and direct that Plaintiff file a complaint in the above
captioned action if he chooses to purse the within claims.

II.

LEGAL STANDARD
Motions for preliminary injunctive relief are governed by Rule 65 of the

Federal Rules of Civil Procedure1 and are judged against exacting legal
standards. To obtain a preliminary injunction or a temporary restraining
order, a movant “must satisfy the traditional four-factor test: (1) a likelihood
of success on the merits; (2) he or she will suffer irreparable harm if the
injunction is denied; (3) granting relief will not results in even greater harm to
Pursuant to Rule 65(a)(1) of the Federal Rules of Civil Procedure, a
“court may issue a preliminary injunction only on notice to the adverse party.”
Fed. R. Civ. P. 65(a)(1). In contrast, a “court may issue a temporary
restraining order without written or oral notice to the adverse party or its
attorney” if certain conditions are met. Fed. R. Civ. P. 65(b)(1).
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the non-moving party; and (4) the public interest favors such relief.” Miller v.
Mitchell, 598 F.3d 139, 147 (3d Cir. 2010). It is the movant’s burden to show
a likelihood of success on the merits. Campbell Soup Co. v. ConAgra Inc.,
977 F.2d 86, 90 (3d Cir. 1992).
Preliminary injunctive relief is not granted as a matter of right. Kershner
v. Mazurkiewicz, 670 F.2d 440,443 (3d Cir. 1982), see also Thomas v.
Pennsylvania Dep’t of Corr., 3:13-CV-2661, 2014 WL 3955105, at *1 (M.D.
Pa. Aug. 13, 2014) (“An injunction is an ‘extraordinary remedy’ that is never
awarded as of right.”). Rather, the decision to grant or deny such relief is
committed to the discretion of the district court. United States v. Price, 688
F.2d 204, 210 (3d Cir. 1982). Generally, preliminary injunctive relief is an
extraordinary remedy that places precise burdens on the moving party, and
“[t]he preliminary injunction must be the only way of protecting the plaintiff
from harm.” “It has been well stated 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). Further, where the requested preliminary
injunctive relief “is directed not merely at preserving the status quo but ... at
providing mandatory relief, the burden on the moving party is particularly
heavy.” Punnet v. Carter, 621 F.2d 578, 582 (3d Cir. 1980). Mandatory

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injunctions should be used sparingly. United States v. Price, 688 F.2d 204,
212 (3d Cir. 1982).
For a party to sustain his burden of proof that he is entitled to
preliminary injunctive relief under Rule 65, he must demonstrate both a
reasonable likelihood of success on the merits and irreparable harm 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. “As these elements suggest, there
must be ‘a relationship between the injury claimed in the party’s motion and
the conduct asserted in the complaint.’ ” Ball v. Famiglio, 396 F. App’x 836,
837 (3d Cir. 2010) (quoting Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.
2010)) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)). “To
establish a reasonable probability of success on the merits, the moving party
must produce sufficient evidence to satisfy the essential elements of the
underlying cause of action.” Sutton v. Cerullo, 3:10-CV-1899, 2014 WL
3900235, at *5 (M.D. Pa. Aug. 8, 2014). To establish irreparable injury, “the
moving party must establish that the harm is imminent and probable.” Stilp
v. Contino, 629 F. Supp. 2d 449, 466 (M.D. Pa. 2009). “The mere risk of
injury is not sufficient to meet this standard.” Id. And the burden of showing
irreparable injury “is not an easy burden” to meet. Moore v. Mann, 3:13-CV2771, 2014 WL 3893903, at *2 (M.D. Pa. Aug 7, 2014). In assessing a motion
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for preliminary injunctive relief, the court must also consider the harm to the
defendants and whether granting the preliminary injunction will be in the
public interest. New Jersey Retail Merchants Ass’n v. Sidamon-Eristoff, 669
F.3d 374, 388 (3d Cir. 2012).

III.

DISCUSSION
Initially, the Court notes that Plaintiff did not file a complaint with his

Motion for Preliminary Injunction and therefore not all the factors of the
traditional four-factor test, which a party must satisfy in order to obtain
preliminary injunctive relief, can be assessed. Nevertheless, based on the
allegations in the motion itself, Plaintiff has not shown an immediate
irreparable injury justifying the grant of such relief.
“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’).” Messner v. Bunner, No. 07-112E, 2009 WL 1406986,
at *4 (W.D. Pa. May 19, 2009). 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,
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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). Plaintiff, who has the burden of showing an
imminent threat of irreparable injury, has failed to meet this precise burden
with respect to his request for preliminary injunctive relief. The Court notes
that Plaintiff has filed five civil actions since September, 2022. 2 He fails to
set forth a prima facie claim of denial of access to courts in that he has failed
to set forth allegations that (1) defendants impeded plaintiff’s access to
courts and (2) plaintiff suffered actual injury in his ability to access the courts.
Lewis v. Casey, 518 U.S. 343, 351 (1996); Rivera v. Monko, 37 F.4th 909,
915 (2022).3
Moreover, granting the requested preliminary injunctive relief would
“effectively have the federal courts making ad hoc, and individual, decisions
concerning the treatment of a single prisoner, [which] could harm both the
defendants’ and the public’s interest.” Kelly v. Merrill, 2014 WL 7740025, at

Civil Action Nos. 3:22-CV-1530, 22-CV-1946, 22-CV-1947, 22-CV1992 and 22-CV-1998.
2

When access to courts claims are based on underlying claims that
plaintiffs have not yet filed, it must be alleged that the underlying claims are
nonfrivolous and arguable and that defendants have frustrated plaintiff’s
ability to bring the claims. Christopher v. Harbury, 536 U.S. 403, 415 (2002)
(citing Lewis, 518 U.S. at 353 n.3).
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*9 (M.D. Pa. Dec. 11, 2014); see generally Jenkins v. Crayton, 2013 WL
3467191, at *2 (W.D. Pa. July 10, 2013) (“The federal courts are not
overseers of the day-to-day management of prisons. Prison officials require
broad discretionary authority as the ‘operation of a correctional institution is
at best an extraordinary difficult undertaking.’ ”) (quoting Wolff v. McDonnell,
418 U.S. 539, 566 (1974)). Accordingly, the balance of the hardship does
not weigh in favor of granting Plaintiff’s request for preliminary injunctive
relief.

IV

CONCLUSION
In sum, Plaintiff has not demonstrated that he suffers from an

immediate irreparable harm, and, considering that granting him the
requested relief may adversely affect the interest of the Defendant and the
public, the Court will deny their Motion for Preliminary Injunctive Relief. The
Court, however, will provide Plaintiff an opportunity to file a complaint in the
instant action. At that time, Plaintiff’s motion for leave to in forma pauperis
will be addressed, and Plaintiff’s complaint will be screened prior to service.
Failure to file a complaint in the instant action will result in the case being
closed.

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An appropriate Order follows.

s/ Malachy E. Mannion
DATE: January 18, 2023

MALACHY E. MANNION
United States District Judge

22-1998-01

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