BORRERO v. HORTON et al

Filing 33

MEMORANDUM ORDER denying 21 Motion to Compel asking for a preliminary injunction; denying 29 Motion for Preliminary Injunction; denying 29 Motion for TRO; denying 29 Motion an injunction. Signed by Magistrate Judge Maureen P. Kelly on 3/5/2013. [A copy of this Memorandum Order was mailed to Plaintiff on this day at his address of record]. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
HECTOR BORRERO,

)
)
)
vs.
) Civil Action No. 12-113J
) Judge Kim R. Gibson/
JEFF HORTON, Deputy Superintendent, ) Magistrate Judge Maureen P. Kelly
SCI Rockview; KENNETH R.
)
HOLLIBAUGH, Deputy Superintendent, )
SCI Houtzdale; J.W. SAWTELLE,
)
C.C.P.M. at SCI Houtzdale; ROBERT
)
REED, Hearing Examiner, SCI Houtzdale; ) Re: ECF Nos. 21, 29
Defendants. )
Plaintiff,

MEMORANDUM ORDER
Plaintiff Hector Borrero (“Plaintiff”), an inmate in the custody of the Pennsylvania
Department of Corrections, is currently incarcerated at the State Correctional Institution (“SCI”)
at Smithfield. Plaintiff initiated this action on June 26, 2012, by filing a Motion for Leave to
Proceed in Forma Pauperis. ECF No. 1. The Motion was granted on September 18, 2012, and
the Complaint was filed on that same date. ECF Nos. 3, 4. In response to a Motion to Dismiss
filed by Defendants, Plaintiff filed an Amended Complaint on February 1, 2013. ECF No. 22.
Plaintiff has brought claims against Defendants Jeff Horton, Kenneth Hollibaugh, J.W. Sawtelle
and Robert Reed, who are all employed at SCI Houtzdale, concerning events that occurred in
June of 2010 while Plaintiff was incarcerated at that facility.
Specifically, Plaintiff alleges that after he reported that his cellmate had a sharpened
metal object that looked like an “ice pick” in his possession, Corrections Officers searched his
cell and found the metal object inside the cellmate’s winter coat. Plaintiff complains that he was
nevertheless handcuffed along with his cellmate, taken to the Restricted Housing Unit (“RHU”),
and charged with Possession of Contraband. Plaintiff claims that the Hearing Examiner,

Defendant Reed, knew that Plaintiff was not guilty of the misconduct but found him guilty
anyway, sentencing him to a period of confinement in the RHU. Defendants Horton, Hollibaugh
and Sawtelle, for their part, allegedly knew that Plaintiff was innocent as well but upheld Reed’s
finding of guilt. Plaintiff claims that these actions violated his rights provided by the Eighth and
Fourteenth Amendments to the United States Constitution.
On February 4, 2013, Plaintiff filed a document entitled “Motion to Compel,” wherein he
contends that on January 22, 2013, he was forced to relinquish all of his personal property,
including his clothes, personal hygiene products as well as his legal documents. ECF Nos. 21,
21-3. Plaintiff claims that these items were removed from his possession in retaliation for having
filed a lawsuit and because of his dietary restrictions. ECF No. 21-3, p. 1. Plaintiff asks that a
preliminary injunction be issued against Defendants Hollibaugh and Sawtelle, as well as Mr.
Sharp, and Superintendent Glunt for their role in a pattern of harassment that Plaintiff alleges he
was subjected to while at SCI Houtzdale. In addition, Plaintiff asks the Court to compel SCI
administrative personnel to allow him the use of a jailhouse lawyer and access to the law library.
Id.
On February 19, 2013, Plaintiff filed a Motion for Preliminary Injunction wherein he
renews his claims from the earlier Motion to Compel, and also claims that on February 11, 2013,
he was “kicked out of Houtzdale” in retaliation for filing the present lawsuit;1 that he is not being
provided with paper or pens and is forced to perform sexual favors in order to obtain them; that
he is housed in a filthy cell with “blood all over the place;” and that his dietary restrictions and
medical needs are continuously being ignored. ECF No. 29. Plaintiff seeks an injunction against
Defendants Hollibaugh and Sawtelle, as well as Mr. Smith, Mrs. Hollibaugh, and SCI
Smithfield’s kitchen and medical department personnel. Id. at p. 6.
1

Plaintiff was transferred to SCI Smithfield on February 11, 2013. See ECF Nos. 30, p. 1; 31.

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This Court has discretion to grant preliminary injunctive relief under Fed. R. Civ. Proc.
65. The purpose of the preliminary injunction is to preserve the status quo until the rights of the
parties can be fairly and fully investigated and determined by strictly legal proofs and according
to the principles of equity. Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980). Thus, the
grant of injunctive relief is an “extraordinary remedy which should be granted only in limited
circumstances.” American Telephone & Telegraph Co. v. Winback and Conserve Program, Inc.,
42 F.3d 1421 (3d Cir. 1994), quoting Frank's GMC Truck Center, Inc. v. General Motor Corp.,
847 F.2d 100, 102 (3d Cir. 1988).
The party seeking a preliminary injunction has the burden of demonstrating: 1) a
reasonable probability of success on the merits; 2) irreparable harm if the injunction is denied; 3)
that the issuance of an injunction will not result in greater harm to the non-moving party; and 4)
that the public interest would best be served by granting the injunction. Council of Alternative
Political Parties v. Hooks, 121 F.3d 876, 879 (3d Cir. 1997); Opticians Ass'n of America v.
Independent Opticians of America, 920 F.2d 187, 191–92 (3d Cir. 1990). See Opticians Ass’n of
America, 920 F.2d at 192 (an injunction should issue only if the movant produces evidence
sufficient to convince the trial judge that all four factors favor preliminary relief). As the United
States Court of Appeals for the Third Circuit has found, these four factors suggest that “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 Fed. App’x 836, 837 (3d Cir. 2010), quoting Little v.
Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). See Adams v. Freedom Forge Corp., 204 F.3d 475,
489-90 (3d Cir. 2000) (affirming the denial of injunctive relief where the harm alleged was
insufficiently related to the complaint); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)
(“Devose's motion is based on new assertions of mistreatment that are entirely different from the

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claim raised and the relief requested in his inadequate medical treatment lawsuit. Although these
new assertions might support additional claims against the same prison officials, they cannot
provide the basis for a preliminary injunction in this lawsuit”); Spencer v. Stapler, 2006 WL
2052704, at *9 (D. Ariz. July 21, 2006) (“Plaintiff's motion [for injunctive relief] concerns
events that are unrelated to the subject of his complaint and that concerns conduct of persons
other than the Defendants. Plaintiff's request will therefore be denied”); Williams v. Platt, 2006
WL 149024, at *2 (W.D. Okla. Jan.18, 2006) (“[a] preliminary injunction would be
inappropriate to address wrongs wholly unrelated to the complaint”); Westbank Yellow Pages v.
BRI, Inc., 1996 WL 255912, at *1 (E.D. La. May 13, 1996) (“[a] preliminary injunction is not an
appropriate vehicle for trying to obtain relief that is not even sought in the underlying action”).
Moreover, there is a “general 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 (1897) (“The decree is also objectionable because it enjoins persons not parties to
the suit.”). See Williams v. Platt, 2006 WL 149024, at *2 (denying motion for an injunction
noting that the movant 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”).
Here, Plaintiff has failed to satisfy his burden. Not only are most of the individuals that
Plaintiff seeks to enjoin not named as defendants in this action but the requested relief concerns
events that post-date the filing of this action and/or the Amended Complaint and are completely
unrelated to the allegations raised in the Amended Complaint. As previously discussed,
Plaintiff’s claims in this suit revolve around an allegedly unfounded misconduct that was issued

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against Plaintiff in June of 2010 while he was housed at SCI Houtzdale. ECF No. 22. Plaintiff,
however, seeks injunctive relief to gain access to his legal documents as well as the law library
and to be provided with a special diet which have nothing to do with the misconduct he was
issued. See ECF Nos. 21, 29. See also ECF No. 32, p. 2. Indeed, Plaintiff was transferred from
SCI Houtzdale to SCI Smithfield on February 11, 2013. Because the second motion filed by
Plaintiff -- the Motion for Preliminary Injunction -- was not filed until February 19, 2013, ECF
No. 29, he necessarily seeks to enjoin individuals at SCI Smithfield from engaging in conduct
that is necessarily unrelated to what occurred at SCI Houtzdale.
Moreover, Plaintiff’s first motion -- the Motion to Compel -- was filed on February 4,
2013, while he was still incarcerated at SCI Houtzdale. ECF No. 21. Because Plaintiff is no
longer under the control of officials at SCI Houtzdale, any effort to enjoin them from engaging in
certain conduct is now moot. Marshall v. Pa. Dept. of Corrections, 2012 WL 4458279, at *1-2
(3d Cir. Sept. 27, 2012), citing Abdul–Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993) (inmate's
transfer to another institution moots his claim for declaratory or injunctive relief).
It therefore appears that Plaintiff's requests for injunctive relief are an improper attempt
to expand his Amended Complaint to add new parties and reach unrelated issues that are
properly brought in a separate action. To find otherwise would permit Plaintiff to circumvent the
Prison Litigation Reform Act’s filing, exhaustion, and three-strike requirements by allowing him
to assert an entirely new cause of action as a request for injunctive relief.

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Accordingly, the following Order is entered:
AND NOW, this 5th day of March, 2013, upon consideration of Plaintiff’s Motion to
Compel, ECF No. 21, and Plaintiff’s Motion for Preliminary Injunction, ECF No. 29, IT IS
HEREBY ORDERED that the Motions are DENIED.
BY THE COURT:

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

cc:

Hector Borrero
JB-2013
SCI Smithfield
P.O. Box 999
Huntingdon, PA 16652

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