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Shears v. Carter

United States District Court, M.D. Pennsylvania

March 7, 2017



          Yvette Kane United States District Judge


         On July 12, 2016, Plaintiff Daaron Shears, an inmate at the State Correctional Institution at Frackville, Pennsylvania (“SCI-Frackville”), filed a complaint under 42 U.S.C. § 1983 against two correctional officers and a registered nurse employed at SCI-Frackville. (Doc. No. 1.) Shears claims the correctional officers, Carter and Chehovich, improperly required him to strip search, used excessive force and sexually assaulted him. (Id.) He also claims that the registered nurse, Kathleen Shorts, failed to provide him with medical care. (Id.) Shears requests declaratory and injunctive relief and compensatory and punitive damages. Id.

         Along with the complaint Shears filed a motion to proceed in forma pauperis and an authorization to have funds deducted from his prison trust fund account to pay the filing fee in installments. On July 15, 2016, Shears filed a motion for a temporary restraining order/preliminary injunction. (Doc. No. 9.) By order of July 18, 2016, the court directed that the complaint be served on Defendants named therein. (Doc. No. 10.) On August 2, 2016, Defendants waived service of the complaint. (Doc. No. 14.) On August 25, 2016, Shears filed a second motion for a temporary restraining order. (Doc. No. 19) On September 9, 2016, the court issued an order (Doc. No. 33) deeming Shears' first motion for temporary restraining order (Doc. No. 9) withdrawn for failing to file a supporting brief. An answer to the complaint was filed by Defendants on September 19, 2016. (Doc. No. 34.) The purpose of this order is to address the second motion for a temporary restraining order. For the reasons set forth below the court will deny the motion without prejudice.[1]


         The document which Shears filed was designated by him as a “Temporary Restraining Order” and docketed by the Clerk as a motion for temporary restraining order. (Doc. No. 19.) The motion consists of one page and states as follows, including the grammatical and spelling errors:

[It is further ordered] that effective immediately, and pending the hearing and determination of this order to show cause, the Defendants [correctional officers (CO) John Carter, Correctional Officer (CO) Clint Chehovich, Registered Nurse (RN) Kathleen Shorts, SCI Frackville Medical Department and the Frackville PRC Treatment Team of the BMU Program.]
1. John Carter & Clint Chehovich area friends in there Town locally & Carter has Officer Clint Chehovich taking fruit & food off of my trays at dinner time to were as though Chehovich also tells me Carter said how do my nutts feel. Please stop this problem.
2. Clint Chehovich calls me rapist telling me we don't believe your innocent that's why you don't deserve testicals and penis “Fuck Boy”.. Chehovich also has a relationship the deputy & major which the PRC treatment team and they threaten to throw away all my legal work depriving me from law work calling me “competence”..
3. I've been having an allergic reaction to dairy products & I have to begg for medical assistants when im breaking out in hives and swelling up and they take my money for sick calls don't treat me with medication telling me I shouldn't have told on Carter, Chehovich & Kathleen Shorts which works for SCI Frackville Medical Department...
4. Medical is also playing with my seizure dose which caused me to go into shock on 8-4-16....
5. I need a safer environment until the outcome of this serious matter because I cant take what they're doing or ill committ suicide Please?

(Id.) At the end of the page was a signature and date line under which was handwritten “United States District Judge.” (Id.) It would appear based on paragraph 5 that Shears is requesting as relief an order directing that he be separated from the defendants and transferred to another prison.[2]

         The standard for deciding a motion for a temporary restraining order is the same as the test for ruling on a motion for a preliminary injunction. Bieros v. Nicola, 857 F.Supp. 445, 446 (E.D. Pa. 1994). Preliminary injunctive relief is extraordinary in nature, and is discretionary with the trial judge. Orson, Inc. v. Miramax Film Corp., 836 F.Supp. 309, 311 (E.D. Pa. 1993) (citing Skehan v. Board of Trustees of Bloomsburg State College, 353 F.Supp. 542 (M.D. Pa. 1973)). In determining whether to grant a motion seeking preliminary injunctive relief, courts in the Third Circuit consider the following four factors: (1) the likelihood that the applicant will prevail on the merits; (2) the extent to which the movant is being irreparably harmed by the conduct complained; (3) the extent to which the non-moving party will suffer irreparable harm if the preliminary injunction is issued; and (4) whether granting preliminary injunctive relief will be in the public interest. S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 374 (3d Cir. 1992) (citing Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197-98 (3d Cir. 1990)); Instant Air Freight v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d ...

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