PORTER v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 25

MEMORANDUM ORDER denying 13 Motion for Preliminary Injunction. Signed by Chief Magistrate Judge Maureen P. Kelly on 9/15/17. [A copy of this Memorandum Order was mailed to Plaintiff on this date at his address od record]. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERNEST PORTER,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, JOHN E. WETZEL,
ROBERT GILMORE, and JOHN/JANE
DOES,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 17-763
Chief Magistrate Judge Maureen P. Kelly

Re: ECF No. 13

MEMORANDUM ORDER
Plaintiff Ernest Porter (“Plaintiff”), an inmate at the State Correctional Institution at
Greene (ASCI-Greene@), has presented a civil rights complaint, which he has been granted leave
to prosecute without prepayment of costs, alleging that Defendants have violated his rights
provided by the Eighth and Fourteenth Amendments to the United States Constitution by
continuing to confine him in the Capital Case Unit (“CCU”) even though his sentence of death
has been vacated.1
Presently before this Court is a Motion for Preliminary Injunction submitted by Plaintiff,
ECF No. 13, wherein Plaintiff largely reiterates the claims set forth in his Complaint, arguing
that “for more than 13-years since Plaintiff’s Death Sentence had been Vacated the Respondents
have kept Plaintiff Illegally Confined under Punitive solitary Confinement at the State
Correctional of Greene County, Pennsylvania, and have acted with deliberate indifference to a
substantial risk of serious harm.” ECF No. 13 ¶ 1. Plaintiff’s Motion, as well as his Complaint,

1

Plaintiff was convicted of Murder in the First Degree on June 27, 1986 in the Court of Common Pleas of
Philadelphia County, Pennsylvania, and subsequently sentenced to death. ECF No. 21-1 at 4-5 (Criminal Docket for
Case No. CP-51-CR-0622491-1985). His conviction and sentence were subsequently affirmed by the Supreme
Court of Pennsylvania in an Opinion dated February 8, 1990. Commonwealth v. Porter, 569 A.2d 942 (Pa. 1990).

is based upon the recent decision by United States Court of Appeals for the Third Circuit in
Williams v. Sect’y of the Pa. Dept. of Corr., 848 F.3d 549 (3d Cir. 2017), wherein the Court held
that “the Due Process Clause of the Fourteenth Amendment . . . limits the State's ability to
subject an inmate to the deprivations of death row once the death sentence initially relied upon to
justify such extreme restrictions is no longer operative.” Id. at 552. Plaintiff contends that
because his death sentence has been vacated, his continued confinement in the CCU runs afoul of
Williams necessitating his immediate placement in the general population.
A preliminary injunction is an extraordinary and drastic remedy that "should not be
lightly indulged in, but used sparingly and only in a clear and plain case." Emile v. SCIPittsburgh, No. 04-974, 2006 WL 2773261, at *6 (W.D. Pa. Sept. 24, 2006), quoting Plain
Dealer Publ'g Co. v. Cleveland Typographical Union #53, 520 F.2d 1220, 1230 (6th Cir. 1975).
See AT&T v. Winback and Conserve Prog. Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994). "[G]reat
caution" and "judicial restraint" are particularly called for in the prison context where "complex
and intractable problems of prison administration" are implicated. Goff v. Harper, 60 F.3d 518,
520 (8th Cir. 1995). See Bailey v. Gagnon, No. 06-1154, 2009 WL 982694, at *1 (W.D. Pa.
April 9, 2009).
In determining whether a preliminary injunction is warranted, the District Court is to
consider “(1) whether the movant has a reasonable probability of success on the merits; (2)
whether irreparable harm would result if the relief sought is not granted; (3) whether the relief
would result in greater harm to the non-moving party, and (4) whether the relief is in the public
interest.” Monroe v. Bryan, No. 12-1627, 2012 WL 2478375, at *1 (3d Cir. June 29, 2012),
quoting Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002). See Abu-Jamal v. Price,
154 F.3d 128, 133 (3d Cir. 1998) (for an inmate to sustain his burden of proof that he is entitled

2

to a preliminary injunction, 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). "[I]t is the
movant's burden to show that the 'preliminary injunction must be the only way of protecting the
plaintiff from harm.'" Emile v. SCI-Pittsburgh, 2006 WL 2773261, at *6, quoting Campbell
Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992). Indeed, because "[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), irreparable harm is established by
showing that the plaintiff will suffer injury that "cannot be redressed by a legal or an equitable
remedy following trial." Messner v. Bunner, No. 07-112E, 2009 WL 1406986, at *4 (W.D. Pa.
May 19, 2009), quoting Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d
Cir. 1989).
Here, it is apparent from the record before the Court that Plaintiff is unable to show a
likelihood of success on the merits and therefore his Motion will be denied.
The record shows that Plaintiff filed a Petition for Writ of Habeas Corpus in the United
States District Court for the Eastern District of Pennsylvania on or about May 25, 1999, which
was granted in part and denied in part on June 26, 2003. ECF No. 21-1 at 13-27: #1, #109 (Civil
Docket for Case No. 2:99-cv-02677). See Porter v. Horn, 276 F. Supp. 2d 278, 364-65 (E.D. Pa.
2003). Specifically, the Court granted relief with respect to Plaintiff’s sentence of death, which
was concomitantly vacated, and denied the petition in all other respects. Id. The Order also
stated, however, that “if either Petitioner or Respondents file an appeal to the United States Court
of Appeals for the Third Circuit, the entry of this Order will be stayed pursuant to Eastern
District of Pennsylvania Local Rule 9.4(12) pending the disposition of that appeal.” Id. Not
only did Respondents appeal the granting of habeas relief relative to Plaintiff’s sentence to the

3

Third Circuit Court of Appeals but Plaintiff appealed the portion of the Order denying relief on
the other issues raised in his habeas petition. ECF No. 21-1 at 26: #112, #114; ECF No. 21-1 at
28-37 (General Docket for Case No. 03-9006 (3d Cir.); ECF No. 21-1 at 38-47 (General Docket
for Case No. 03-9007 (3d Cir.)). Consequently, the Order vacating Plaintiff’s death sentence
was stayed pending the outcome of those appeals. The record shows that those appeals are still
pending and thus the Order vacating Plaintiff’s death sentence remains stayed. Id.2 Plaintiff’s
death sentence therefore is still operative and his continued confinement in the CCU does not
violate Williams. Under these circumstances, Plaintiff is unable to show that he is likely to
succeed on the merits of his claim and injunctive relief is not warranted.

2

It appears that The Court of Appeals for the Third Circuit entered an order on February 12, 2004, staying the
briefing schedules on the parties’ respective appeals pending a decision by the United States Supreme Court in
Banks v. Horn, No. 02-1603. ECF No. 21-1 at 32, 42. Although the stay was lifted on September 8, 2004 following
the Supreme Court’s decision in Banks, Plaintiff subsequently filed two motions on October 22, 2004 and October
27, 2004, respectively, asking that the briefing schedules be temporarily tolled pending the disposition of two other
cases then pending in the United States Supreme Court. Id. Plaintiff subsequently withdrew one of those requests
and, following the Supreme Court’s decision in the second case, the briefing schedules on Plaintiff’s cases were
reinstated. Id. at 33, 42-43. Plaintiff, however, filed four motions seeking an extension of time of 60 days each to
file his brief and appendix, which were all granted. Id. Then, on November 9, 2006, Plaintiff filed a Motion asking
to hold the appellate proceedings in abeyance pending the Pennsylvania Supreme Court’s disposition of Plaintiff’s
Petition for State Post-Conviction Relief filed on August 16, 2002, wherein he raised a claim under Atkins v.
Virginia, 536 U.S.304 (2002). Id. at 33, 43. That motion was granted by the Third Circuit Court of Appeals on
February 7, 2007, with the added directive that the parties were to file status reports regarding the PCRA
proceedings every 60 days until the conclusion of the state proceedings. Id. at 34, 43-44. Review of the appellate
docket sheets show that the latest status report was filed on August 16, 2017, in which it is indicated that Plaintiff’s
PCRA Petition with respect to the Atkins issue has yet to be ruled on. Id. at 37, 47. See id. at 48-50 (8/16/17 Status
Report). (It should be noted here that Plaintiff supplemented his PCRA Petition on June 15, 2006, raising a claim
under Brady v. Maryland, 373 U.S. 83 (1963). Although the PCRA court issued a ruling dismissing the PCRA
Petition on November 8, 2007, it did so finding that it was time-barred and did not meet the requirement of Brady
material. Com. v. Porter, 35 A.3d 4, 7–11 (Pa. 2012). The PCRA court did not address the Atkins issue and that
portion of the PCRA Petition remains pending. Indeed, in its opinion affirming the denial of post-conviction relief,
the Pennsylvania Supreme Court directed the PCRA court “to promptly dispose of appellant’s long-pending prior
PCRA petition, which raised an issue under Atkins . . . .” Id. at 7.) As such, the appeals from the District Court’s
Order granting habeas relief with respect to Plaintiff’s death sentence remains pending in the Third Circuit Court of
Appeals as well, and the stay imposed by the District Court of its Order vacating Plaintiff’s death sentence is still in
effect.

4

Accordingly, the following Order is entered:
AND NOW this 15th day of September, 2017, upon consideration of Plaintiff’s Motion
for a Preliminary Injunction and Defendants’ Response thereto, IT IS HEREBY ORDERED that
Plaintiff’s Motion for Preliminary Injunction is DENIED.
BY THE COURT:

/s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE

cc:

Ernest Porter
AY7434
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
All counsel of record via CM/ECF

5