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Ferrell v. Beard

September 6, 2006

BRUCE FERRELL, PLAINTIFF
v.
JEFFREY A. BEARD, ET AL., DEFENDANTS



The opinion of the court was delivered by: Edwin M. Kosik United States District Judge

Judge Kosik

Memorandum and Order

Background

Pursuant to this Memorandum and Order, the Court will address several motions pending in this consolidated civil rights action filed by Bruce Ferrell pursuant to 42 U.S.C. § 1983. The first motion is one for injunctive relief based upon Defendants alleged confiscation of his legal materials. (Doc. 154.) Also pending are two related motions filed by Plaintiff to submit exhibits with regard to his motion (Docs. 164, 167.) The Court will also address what it believes to be Plaintiff's second request for the appointment of counsel in this case. (Doc. 152.) Defendants have filed opposition to both the motion for injunctive relief as well as the motion for counsel.

Discussion

A. Motion for Injunctive Relief

Plaintiff brings this lawsuit wherein he alleges that Defendants Jeffrey Beard, Secretary of the Department of Corrections ("DOC"), Sarah Vanderbrook Meart, a DOC attorney, and several officials at the State Correctional Institution at Camp Hill violated his constitutional rights. Specifically, the gist of the consolidated complaint sets forth allegations of the denial of legal and religious property, retaliation and illegal housing in the infirmary and Special Management Unit at SCI-Camp Hill. Plaintiff alleges that Defendants' actions were in retaliation for Plaintiff's smearing of feces and urinating on himself and in his cell. As a result of the deprivation of legal property, Plaintiff alleges injury - namely the dismissal of cases as well as the delay or prevention of the filing of appeals. Plaintiff also contends that he was transferred to the State Correctional Institution at Pittsburgh in retaliation for his actions.

On April 18, 2006, Plaintiff filed a motion for court order directing Defendant Beard and his employees to cease confiscating, withholding and destroying his legal property in an effort to deny him access to the courts. (Doc. 154.) At the time the motion was filed, Plaintiff was confined at SCI-Fayette. He has since been transferred to SCI-Mahanoy. The motion is fully briefed. Also pending are two motions subsequently filed by Plaintiff to submit exhibits in support of his motion. (Docs. 164, 167.) The proposed exhibits are attached to the motions. These motions will be granted to the extent that Plaintiff's exhibits will be considered in deciding the outcome of the motion for injunctive relief.

Plaintiff basically argues that Defendant Beard has instructed various employees at the State Correctional Institution at Fayette, none of which are defendants in this action, to confiscate and destroy his legal materials in an effort to thwart his ability to litigate this action. Plaintiff refers to ten (10) boxes of legal materials, without which he is unable to litigate this case. It is Plaintiff's belief that because the Western District of Pennsylvania court ordered a complaint he filed there served, his materials in this case are being confiscated in retaliation. In responding to Plaintiff's motion, Defendants argue that Plaintiff's own misconduct caused his legal materials to be separated however he was always permitted access to his materials. They further contend that Plaintiff has suffered no actual injury.

Preliminary injunctive relief is extraordinary in nature and should issue in only limited circumstances. See American Tel. and Tel Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994), cert. denied, 514 U.S. 1103 (1995). Moreover, issuance of such relief is at the discretion of the trial judge. Orson, Inc. v. Miramax Film, Corp., 836 F. Supp. 309, 311 (E.D. Pa. 1993). In determining whether to grant a motion seeking preliminary injunctive relief, courts in the Third Circuit consider the following four factors:

(1) likelihood of success on the merits;

(2) irreparable harm resulting from a denial of relief;

(3) the harm to the non-moving party if relief ...


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