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Balter v. United States

October 8, 2010


The opinion of the court was delivered by: Judge Munley

Magistrate Judge Mannion


Before the court are Plaintiff Richard Balter's objections (Doc. 38) to the Report and Recommendation of Magistrate Judge Malachy E. Mannion (Doc. 37) which proposes that we deny the plaintiff's motion for a Bureau of Prisons placement in the Middle District of Pennsylvania (Doc. 30). The objections have been fully briefed and are ripe for disposition.


Plaintiff Richard Balter ("Plaintiff"), through counsel, initiated the instant action on July 20, 2009, in which he alleges that the defendants were negligent in providing medical treatment for his macular degeneration. As a result, the Plaintiff alleges that he is legally blind in his left eye. (Doc. No. 1). An amended complaint was subsequently filed on September 11, 2009. (Doc. No. 7). The Plaintiff filed a second amended complaint on December 4, 2009. (Doc. No. 26). Defendants the United States and Medical Development International Ltd., Inc. filed answers to the second amended complaint, on December 18, 2009. (Docs. No. 28, 29).

On January 5, 2010, counsel for the plaintiff filed a motion indicating that the Plaintiff has been informed that he will be transferred out of USPAllenwood in the near future. Counsel seeks an injunction directing the Bureau of Prisons ("BOP") to place the Plaintiff in a facility within the Middle District of Pennsylvania to permit the Plaintiff contact with his current treating physicians and his counsel. (Doc. No. 30). Plaintiff's counsel argued that the Plaintiff has developed a relationship of trust with his treating physicians, with whom he has treated since 2003, and that they are familiar with his ongoing medical condition. In addition, counsel argues that the instant litigation is fact intensive which requires the Plaintiff to have access to meet, confer and consult with his counsel. Counsel also argues that an injunction is necessary to "prevent the BOP from reaping the reward of conduct that could give rise to a retaliation claim."

On January 21, 2010, Magistrate Judge Mannion issued a Report and Recommendation recommending that the court deny the Plaintiff's motion. (Doc. 37). The Plaintiff filed objections on February 4, 2010. (Doc. 38). The objections are fully briefed, bringing the case to its present posture.


In disposing of objections to a magistrate judge's report and recommendation, we make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. We may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.


In considering a motion for injunctive relief, the district court must consider: (1) whether the movant has shown probability of success on the merits; (2) whether the movant will be irreparably harmed 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. Brian B. v. Commonwealth, 230 F.3d 582 (3d Cir. 2000).

The Supreme Court has instructed that injunctive relief should be reserved for "extraordinary" situations. Sampson v. Murray, 415 U.S. 61, 88 (1974). In following that instruction, the Third Circuit has held that the granting of injunctive relief is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it. Warner Bros. Pictures v. Gittone, 110 F.2d 292 (3d Cir. 1940). Further, the Third Circuit has insisted that "the use of judicial power to arrange relationships prior to a full determination on the merits is a weighty matter, and the preliminary injunction device should not be exercised unless the moving party shows that it specifically and personally risks irreparable harm." Adams v. Freedom Forge Corporation, 204 F.3d 475, 487 (3d Cir. 2000) (citing Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d Cir. 1992); Frank's GMC Truck Center v. General Motors Corp., 847 F.2d 100, 102-03 (3d Cir. 1988)).

1. Probability of Success on the Merits

Judge Mannion reasoned that it is too early in the litigation-- without the benefit of medical expert testimony-- to determine whether the Plaintiff will likely prevail on the merits. (Doc. 37 at 4). The Plaintiff objects, arguing that in order to demonstrate a reasonable probability of success on the merits he need only establish a prima facie negligence claim. See Punnett v. Carter, 621 F.2d 587, 583 (3d Cir. 1980) ("It is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits." (citation and quotations omitted)). We ...

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