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Thorn v. Smith

May 23, 2006


The opinion of the court was delivered by: Judge McClure



On January 4, 2006, plaintiff Joseph Thorn, proceeding pro se, commenced the instant Bivens action in the United States District Court for the Middle District of Pennsylvania. As part of his complaint, Thorn asserts that the crowded housing conditions at the Federal Prison Camp in Lewisburg, and the camp's planned expansion to house more inmates, amount to cruel and unusual punishment under the Eighth Amendment of the United States Constitution. The complaint and motion for a temporary restraining order and preliminary injunction filed on January 4, 2006, were largely identical to documents he filed in an action he commenced in 2005; an action which was ultimately dismissed by this court for his failure to exhaust administrative remedies. Thorn v. Smith, No. 4:05-CV-0166 (M.D. Pa. July 29, 2005) (McClure, J.).

On February 2, 2006, before Smith filed a brief in opposition, Thorn filed a document we construed as a motion for leave to file an amended complaint with four new defendants. On February 14, 2006, we granted plaintiff leave to file an amended complaint with new defendants. On March 6, 2006, we timely received plaintiff's amended complaint and supporting memorandum of law. The amended complaint added defendants Troy Williamson, Dave Moffat, D. Scott Dodrill, and Harley G. Lappin. Thorn's amended complaint, largely identical to his previously filed complaints, sought a temporary restraining order and a preliminary injunction.

On March 7, 2006, we denied Thorn's request for a TRO, dismissed the portion of his complaint referencing criminal prosecution, and ordered service of the amended complaint on the new defendants. On April 17, 2006 the defendants filed a brief in opposition to plaintiff's request for a preliminary injunction. After being granted an extension of time, the defendants had until May 12, 2006, to file a response to the amended complaint. On May 12, 2006, the government filed a motion to dismiss or, in the alternative, for summary judgment. The government has not yet filed a brief in support. Also on or about May 12, 2006, Thorn filed a "Motion to Reject Defendant's Second Response to Plaintiff's Complaint and Request for Preliminary Injunction" and an accompanying brief in support. The government has not yet filed a brief in response. For the following reasons we will deny plaintiff's request for a preliminary injunction and will deny Thorn's motion to preclude the government from filing further responses to his amended complaint, as it is without merit.



A party seeking preliminary injunctive relief must show: "(1) a likelihood of success on the merits; (2) that it will suffer irreparable harm if the injunction is denied; (3) that granting preliminary injunctive relief will not result in even greater harm to the nonmoving party; and (4) that the public interest favors such relief." KOS Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citing Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999)); Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990). "Preliminary injunctive relief is 'an extraordinary remedy' and 'should be granted only in limited circumstances.'" KOS Pharmaceuticals, Inc., 369 F.3d at 708 (quoting Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1988)).

The essential factors for granting preliminary injunctive relief are irreparable harm and likelihood of success on the merits; if one of those factors is absent the moving party is not entitled to a preliminary injunction. Int'l Union v. Textron Lycoming Reciprocating Engine Div., 919 F. Supp. 783, 789 (M.D. Pa. 1996); see also Larami Ltd. v. Ohio Art Co., 270 F. Supp. 2d 555, 562 (D.N.J. 2003) (citing Reebok Int'l v. J. Baker, Inc., 32 F.3d 1552, 1555-56 (Fed. Cir. 1994)) (noting that in patent infringement cases the Federal Circuit does not require district courts to analyze all four factors when denying a preliminary injunction because the movant has failed to demonstrate either irreparable harm or a substantial likelihood of success on the merits).


Plaintiff has been confined at USP Lewisburg's satellite camp since December 1, 2004, when he transferred from FCI Fort Dix, New Jersey.

On July 12, 2004, before Thorn's arrival to the camp, defendant Dave Moffat issued a memorandum to the inmates at the Lewisburg Camp notifying them that most cubes at the camp would become three man cubes instead of two man cubes.*fn1 At that time the inmates were informed that additional telephones would be added, administration building hours would be extended, and television viewing times would be expanded. The inmates were informed that because of the increase in prison population visiting procedures might be changed, but that inmates would be given notice to alert their families. These changes have since been implemented.

From June 29, 2004 to July 1, 2004, the American Correctional Association's (ACA) visiting committee audited USP-Lewisburg. The government has provided as an exhibit the Visiting Committee Members report and the ACA's February 11, 2005 re-accreditation letter. The summer 2004 audit noted that the rated capacity of all of USP-Lewisburg was 1,666 and that the population at audit was noncompliant at 1,761.*fn2

Thorn asserts in his supporting memorandum that Lewisburg is a "boiling kettle of hazard." (Rec. Doc. No. 16, at 2.) To support this claim he recites that there has been a thirty man riot ...

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