The opinion of the court was delivered by: Chief Judge Kane
Plaintiff Tracy L. Todd filed this civil rights action pursuant to 42 U.S.C. § 1983 on October 3, 2005. At that time, Todd was an inmate confined at the State Correctional Institution at Rockview, Pennsylvania.*fn1 The incidents set forth in the complaint occurred while Plaintiff was confined at the State Correctional Institution at Huntingdon ("SCI-Huntingdon"), Pennsylvania. Named as Defendants are five (5) members of the staff at SCI-Huntingdon and Jeffrey A. Beard, Secretary of the Department of Corrections ("DOC"), and four (4) employees of a contracted health care provider. Plaintiff sets forth various Eighth Amendment claims including excessive force, deprivation of food, food tampering and inadequate medical care. He also alleges that he was denied access to the law library, harassed and subjected to discrimination. As relief he seeks monetary damages. Presently pending before the Court are the following motions filed by Plaintiff: motion for temporary restraining order (Doc. 13); motion to compel (Doc. 36); motion for protective order (Doc. 38); and two motions to join third parties (Docs. 50, 55). These motions will be addressed in this Memorandum. Also pending is a motion to dismiss less than all claims by Defendants Baney, Kyler, Grace, Beard, Pellegrino and McCoy ("DOC Defendants") (Doc. 30), and a motion to dismiss filed by Defendants Auman, Mills, Arias and Beregovskaya ("Medical Defendants) (Doc. 31). These motions are also ripe and will be addressed in a separate Memorandum and Order.
II. Allegations in Complaint
Plaintiff was transferred to SCI-Huntingdon on September 30, 2003, and denied all meals.
On October 4, 2003, he states that he was assaulted while in the Restricted Housing Unit ("RHU") when Defendant Pellegrino dragged him from his cell by a rope attached to his handcuffs, causing him to hit his head several times on the floor and a table. Thereafter, Pellegrino is alleged to have hit Plaintiff on the face and other parts of his body with the rope. Todd was then dragged back to his cell during which time he hit his head, was choked with the rope and kicked several times. He was left in "a freezing cold cell" naked, and denied meals and medical attention. Defendant McCoy is alleged to have been present at the cell and to have taken all bed coverings and Plaintiff's asthma inhalers. McCoy also called Plaintiff a "nigger" and threatened to kill him. Plaintiff asserts that McCoy and Pellegrino convinced other RHU staff members to deny him food, showers, recreation and library time, and also make him crawl back and forth over 900 feet on his hands and knees to retrieve legal property. He claims that Defendants McCoy and Pellegrino had the RHU second shift spit on him and put glass and human waste in his food. Plaintiff contends that because of the assault and due to becoming sick over 40 times from the tainted food trays, he bleeds rectally and also when he urinates. According to Plaintiff, he sent over 300 DNA samples to the U.S. Department of Justice and claims that an investigation is currently taking place.
Plaintiff claims that the medical department at SCI-Huntingdon failed to provide him with treatment following the assault or after becoming sick from the tainted food, and refuses to provide him with a wheelchair or walker to go to other places in the prison. He further contends that his asthma medication has been withheld. Plaintiff contends that Defendants are subjecting him to this treatment based upon the orders of two staff members of the State Correctional Institution at Greensburg, and also because Plaintiff reported the assault which occurred on October 4, 2003.
Plaintiff contends that Kenneth D. Kyler and James L. Grace are responsible for the cruel and unusual punishment he was subjected to because each of these individuals served as warden during the time period during which the above incidents occurred. As warden, each Defendant is legally responsible for the RHU and medical department staff. Plaintiff also claims that Felipe Arias, employed during the relevant time period as the medical director at SCI-Huntingdon, is responsible for his injuries because he failed to treat him following the assault or provide him with a walker, wheelchair or braces. Plaintiff contends that as medical director, Arias is responsible for all of the actions of his physicians assistants and their failure to provide him with his asthma medication and their role in treating him following the assault and food tampering incidents. Plaintiff further claims that Defendant Baney, Grievance Coordinator, violated his rights by blocking his access to the courts when she failed to process grievances he filed or failed to send back parts of his grievance which would allow him to appeal to the next level in the grievance system.
Physicians assistants Mills and Auman are alleged to have violated Plaintiff's rights because they were aware of Pellegrino's assault and failed to provide medical care. According to Plaintiff, Mills discriminated against him on behalf of all the white RHU staff members by failing to provide a wheelchair or braces for his back, neck and knees, advising him to do sit ups and failing to treat his asthma. Auman is alleged to have failed to take pictures and treat Plaintiff's injuries following the assault and take no action after he ingested glass.
Olga Beregovskaya, who was employed as a doctor at SCI-Huntingdon, is alleged to have refused to treat Plaintiff's emergency medical needs following the assault and the food tampering incidents. Plaintiff contends she also failed to do anything when he was made to crawl on his hands and knees from place to place within the prison, all because he was a black inmate. It is alleged that Jeffrey A. Beard, Secretary of the DOC, is legally responsible for all the Defendants actions because he is in charge of the overall operation of the state prisons within Pennsylvania.
III. Motion for Temporary Restraining Order/Preliminary Injunction
Plaintiff seeks injunctive relief directing several staff members at the State Correctional Institution at Rockview to stop torturing, raping, shocking and burning him through the use of some unnamed state-of-the-art technological "device." (Doc. 13.) According to Plaintiff, the device is subtle and barely visible to the eye resembling mist, fog and steam. The vapor is said to come over Plaintiff's body shocking, burning and raping him. He claims that this activity has been going on since he was transferred to SCI-Rockview from SCI-Huntingdon over 13 months ago.
In determining whether to grant a motion seeking preliminary injunctive relief, the court must evaluate four factors: (1) the likelihood of success on the merits; (2) irreparable harm resulting from a denial of the relief; (3) the harm to the nonmoving party if relief is granted; and (4) the public interest. United States v. Bell, Civil No. 1:CV-01-2159, 2003 WL 102610, *2 (M.D. Pa. January 10, 2003)(J. Conner)(internal citations omitted). "[A] failure to show a likelihood of success or a failure to demonstrate irreparable injury must necessarily result in the denial of a preliminary injunction." In Re Arthur Treacher's Franchise Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982). It is the moving party that bears the burden of satisfying these factors. Bell, 2003 WL 102610 at *2.
For the following reasons, the motion for injunctive relief will be denied. It is well established that the adjudicatory power of a federal court depends upon "the continuing existence of a live and acute controversy." Steffel v. Thompson, 415 U.S. 452, 459 (1974) (emphasis in original). "The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Id. at 459, n.10 (citations omitted). "Past exposure to illegal conduct is insufficient to sustain a present case or controversy regarding injunctive relief if unaccompanied by continuing, present adverse effects." Rosenberg v. Meese, 622 F. Supp. 1451, 1462 (S.D.N.Y. 1985)(citing O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). A prisoner's transfer or release from prison moots his claims for injunctive or declaratory relief since he is no longer subject to the conditions he alleges are unconstitutional. Abdul-Akbar v. Watson, 4 F.3d 195, 206-07 (3d Cir. 1993); see also, Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir. 1981)("a prisoner lacks standing to seek injunctive relief if he is no longer subject to the alleged conditions he attempts to challenge."). Further, federal courts, having ...