United States District Court, W.D. Pennsylvania
MEMORANDUM ORDER RE: ECF NO. 83.
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
Stanton Story (“Plaintiff”) is an inmate in the
custody of the Pennsylvania Department of Corrections
(“DOC”), and is currently incarcerated at the
State Correctional Institution at Greene (“SCI
Greene”). Plaintiff initiated with civil action on
September 23, 2015, bringing claims against Defendants
alleging that they violated his rights provided by the First,
Eighth and Fourteenth Amendments to the United States
Constitution relative to an anal probe and enema performed by
Dr. Jin after Plaintiff purportedly received contraband from
a visitor, and Plaintiff's subsequent confinement to a
cell where he was allegedly shackled and handcuffed to the
wall for 26 hours. Plaintiff has also brought claims
revolving around the alleged confiscation of both his legal
and personal property in October of 2014.
the adjudication of a Motion to Dismiss filed by Dr. Jin and
a separate Motion to Dismiss filed by the DOC Defendants,
Plaintiff's Eighth Amendment claims revolving around his
alleged unconstitutional confinement brought against
Defendants Kelly, Johnson I, Barnhart and Schirra at Count IV
of the Complaint, and a state law claim for conversion
brought against Defendants Plumley, Trout and Johnson II at
Count VII remain. ECF No. 70. Plaintiff, however, was
permitted to amend his Complaint with respect to his Eighth
Amendment deliberate indifference claim brought against Dr.
Jin at Count IV, and his First Amendment access to the courts
claim brought against Defendants Trout and Barnhart at Count
VI. Id. Plaintiff, in fact, filed an Amended
Complaint on December 9, 2016, ECF No. 71, and on December
29, 2016, the DOC Defendants filed a renewed Motion to
Dismiss. ECF No. 72. Dr. Jin filed a renewed Motion to
Dismiss on January 20, 2017. ECF No. 87. Both Motions are
January 19, 2017, Plaintiff filed a Motion for Temporary
Restraining Order and/or Preliminary Injunction, which is
presently before the Court. ECF No. 83. Plaintiff alleges
that on December 22, 2016, he was taken from his cell in the
Restricted Housing Unit (“RHU”) in order to
inventory his property and that during the process his legal
material and some books were taken from him by some
unidentified officers. ECF No. 84-1 ¶ 2. Plaintiff
alleges that, as of January 19, 2017, when he filed the
instant motion, the items at issue had not been returned to
him despite Plaintiff's requests. Id. ¶ 3.
injunctive relief is an “extraordinary remedy which
should be granted only in limited circumstances.”
American Telephone & Telegraph Co. v. Winback and
Conserve Program, Inc., 42 F.3d 1421, 1426-27
(3d Cir. 1994) (internal quotations and citations omitted).
In order to obtain such relief, the moving party bears the
burden of establishing: “(1) a likelihood of success on
the merits; (2) that [he] will suffer irreparable harm if the
injunction is denied; (3) that granting preliminary relief
will not result in even greater harm to the nonmoving party;
and (4) that the public interest favors such relief.”
Kos Pharms, 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). See Hohe v.
Casey, 868 F.2d 69, 72 (3d Cir. 1989); Brown v.
Diguglielmo, 2007 WL 4570717, at *1 (E.D. Pa. 2007).
“The facts must clearly support a finding that
immediate and irreparable injury will
result to the movant if preliminary relief is denied.”
Miskovitch v. Hostoffer, 2007 WL 433142, at *2 (W.D.
Pa. 2007), citing U.S. v. Stazola, 893 F.2d 34, 37
n.3 (3d Cir. 1990) (emphasis added). See id.
citing ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226
(3d Cir. 1987) (it is not enough to merely show irreparable
harm: the plaintiff has the burden of showing immediate
irreparable injury, which is more than merely serious or
substantial harm and which cannot be redressed with money
counsel for the DOC Defendants has represented in the
Response to the instant Motion that, having contacted SCI
Greene, she was informed that Officers Phillips and Gumbert
inventoried Plaintiff's property on the date in question
-- December 22, 2016. ECF No. 99 ¶ 8.Defendants have
also submitted a Declaration from Officer Phillips in which
he declares under penalty of perjury that neither he nor
Officer Gumbert took any of Plaintiff's property during
the inventory and that, had they done so, Plaintiff would
have received a Confiscation Slip (DC-154). ECF No. 99-2 at
2. Officer Phillips further avers that Plaintiff's
records not only show that he never received a Confirmation
Slip but that the inventory slip, which was signed by
Plaintiff on December 22, 2016, specifically indicates that
he received three legal books. Id. at 2, 3. Although
the inventory slip does not have a separate designation for
other legal materials, Plaintiff nevertheless signed the form
which, according to Officer Phillips, indicates that
Plaintiff received all of his property and that no concerns
were raised about missing legal materials. ECF No. 99-1 at 2;
ECF No. 99-2 at 3.
as Plaintiff himself has attested to, he submitted a request
for “an extra legal box” on December 23, 2016.
ECF No. 84-1 ¶ 4. Although the request was granted on
December 28, 2016, Plaintiff did not receive the extra box
until January 21, 2017, which, notably, was two days after
Plaintiff filed the instant Motion. Id.; ECF No. 99
¶¶ 11, 13, 14. Under these circumstances, Plaintiff
has not only failed to show the likelihood of success on the
merits but he has failed to show that he will suffer
immediate and irreparable harm if injunctive relief is not
granted. Indeed, having received the extra box of legal
materials after seeking the instant temporary restraining
order and/or preliminary injunction, it would appear that the
issue is moot. Plaintiff's Motion, therefore, is properly
denied, albeit without prejudice. Accordingly, the following
Order is entered:
NOW, this 9th day of February, 2017, upon
consideration of Plaintiff's Motion for Temporary
Restraining Order and/or Preliminary Injunction, ECF No. 83,
and the DOC Defendants Response thereto, ECF No. 99, IT IS
HEREBY ORDERED that Plaintiff's Motion is DENIED without
FURTHER ORDERED that the due date for Plaintiff's
responses to the DOC Defendants' pending Motion to
Dismiss, ECF No. 72, and Dr. Jin's Motion to Dismiss, ECF
No. 87, is extended until March 3, 2017.
 As pointed out by the DOC Defendants,
although the analysis applicable to the adjudication of a
request for a temporary restraining order and a preliminary
injunction is the same, because they have been provided
notice prior to the issuance of an order regarding the
requested relief, Plaintiffs' request is properly
designated as a motion for preliminary injunction.
See Fed.R.Civ.P. 65(b). See also Keszthelyi v.
Lappin, 2007 WL 2713249, at *1 n.1 (W.D. Pa. 2007),
aff'd, 293 F. App'x 843 (3d Cir.
 Although Defendant Dr. Jin also filed
a Response to Plaintiff's Motion and a brief in support
thereof, ECF Nos. 90, 91, it is clear that Dr. Jin, who has
not worked at SCI Greene for over a year, has no knowledge of
or involvement in the ...