The opinion of the court was delivered by: Judge Munley
(Magistrate Judge Blewitt)
Before the court is the plaintiff's motion for a temporary restraining order ("TRO").*fn1 (Doc. 20).
Plaintiff is a prisoner at the State Correctional Institution in Coal Township, Pennsylvania. According to the plaintiff's motion, Defendant Pennsylvania Board of Probation and Parole has since November 2006 continually demanded that plaintiff complete a substance-abuse treatment program through the Department of Corrections to establish his eligibility and suitability for parole. (Doc. 20 at ¶¶ 7-8). The Department of Corrections has also conditioned receipt of other benefits, such as other institutional treatment programs, on plaintiff's participation in the substance abuse classes to which he objects. (Id. at ¶ 9). Plaintiff contends that these classes require him to participate in a "faith-based" twelve-step program in violation of both Federal and Pennsylvania law and the establishment clause of the First Amendment. (Id. at ¶¶ 11, 27).
Because plaintiff has refused to participate in this program, he has not been able to establish his eligibility for parole. (Id. ¶ 11). In October 2007 and April 2008, the Board determined that plaintiff was ineligible for parole because he did not complete the required substance-abuse courses. (Id. at ¶ 14). Plaintiff contends that the Board's requirements violate his rights, and he seeks an order from the court preventing the Board from enforcing its requirement that he participate in the program as a condition of his parole.
Plaintiff seeks a temporary restraining order preventing the defendants from enforcing certain of their institutional policies which plaintiff claims violate his First Amendment rights, as well as taking action to use these programs to prevent his parole. An injunction is an "extraordinary remedy" that is never awarded as of right. Winter v. Natural Resources Defense Council, - - U.S. - - , 129 S.Ct. 365, 375 (2008). The Third Circuit Court of Appeals has outlined four factors that a court ruling on a motion for a preliminary injunction must consider: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir.2001). These same factors are used to determine a motion for a temporary restraining order. Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D.Pa.1994).
The above factors merely "structure the inquiry" and no one element will necessarily determine the outcome. The court must engage in a delicate balancing of all the elements, and attempt to minimize the probable harm to legally protected interests between the time of the preliminary injunction to the final hearing on the merits. Constructors Association of Western Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir.1978). The movant bears the burden of establishing these elements. Adams v. Freedom Forge Corp., 204 F.3d 475, 486 (3d Cir.2000).
The court will examine each of the above four factors in turn.
A. Likelihood of Success on the Merits
Plaintiff's complaint here is largely that the Board's requirement that he attend certain alcohol-treatment classes as a condition of obtaining parole. He contends that he has been denied equal protection of the laws because his refusal to participate in the twelve-step program has made him ineligible for parole. Prisoners who find the religious nature of the program acceptable are not excluded from consideration for parole. In addition, plaintiff claims that defendants' refusal to grant him parole is retaliation for his refusal to submit to coerced religious speech.
If the plaintiff's claim is that the court should issue an injunction to allow him to obtain parole, plaintiff could not prevail on the merits. Plaintiff does not have a liberty interest in parole, and therefore cannot make out a claim that he has been denied a constitutional right as a result of defendant's policy. The Supreme Court has held that "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979). A state may "create liberty interests in parole release that are entitled to protection under the Due Process Clause." Board of Pardons v. Allen, 482 U.S. 369, 371 (1987). When a parole statute creates an "'expectation of parole'" for a prisoner, then that prisoner has a liberty interest in the parole decision. Id. at 373 (quoting Greenholtz, 442 U.S. at 11). In Pennsylvania, however, "[n]o such expectation is created by Pennsylvania's parole statute, and therefore, there is no liberty interest ...