United States District Court, W.D. Pennsylvania
CHARLES W. BAXTER, Plaintiff,
WEXFORD HEALTHCARE, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
BARBARA JACOBS ROTHSTEIN U.S. DISTRICT COURT JUDGE
the Court is the Report and Recommendation of Magistrate
Judge Baxter (Doc. No. 16), which recommends that the Court
deny the motion for temporary restraining order (Doc. No. 6).
After reviewing the Report and Recommendation,
Petitioner's objections (Doc. No. 18), and the relevant
filings and legal authorities, the Court ADOPTS Magistrate
Judge Baxter's Report in its entirety.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
W. Baxter ("Plaintiff), acting pro se, filed
this civil rights action on November 30, 2016. Plaintiff
alleges that Wexford Healthcare, the only named defendant to
this action, has committed medical malpractice against him.
This allegation is based on three grounds. First, Plaintiff
alleges that Wexford reduced Plaintiff's diet to 2400
calories, causing him to drop from 185 to 167 pounds. Second,
Plaintiff alleges that Wexford withheld his blood pressure
medication from him, and his blood pressure rose to an
extreme level. Third, Plaintiff alleges that Wexford failed
to treat his shoulder pain, which arose after he fell from
his bed on the top bunk. (Doc. No. 3).
Plaintiff has filed a motion for a temporary restraining
order against Officer Kendziora, for conduct that arises out
of his complaint against Wexford. In his motion, Plaintiff
alleges that Officer Kendziora heard about Plaintiff's
complaint against Wexford and threatened to "[take] care
of [him]" if he heard anything else about the matter.
(Doc. No. 7). Plaintiff also claims that Officer Kendziora
threatened him with, "over-[excessive] punishment."
(Doc No. 6).
court held an evidentiary hearing on this matter February 2,
injunctions, including temporary restraining orders, are
"extraordinary and drastic [remedies]... that should not
be granted, unless the movant by a clear showing, carries the
burden of persuasion." Mazurek v. Armstrong,
520 U.S. 968, 972 (1997) (citing § 2948 Grounds for
Granting or Denying a Preliminary Injunction, 11A Fed. Prac.
& Proc. Civ. § 2948 (3d ed.)). Before issuing a
temporary restraining order, a court must consider four
factors: "1) a likelihood of success on the merits; 2)
he or she will suffer irreparable harm if the injunction is
denied; 3) granting relief will not result in even greater
harm to the nonmoving party; and 4) the public interest
favors such relief." Bimbo Bakeries USA, Inc. v.
Botticela, 613 F.3d 102, 109 (3d Cir. 2010) (quoting
Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir.
2010)). See also Fed. R. Civ. P. 65. If the record
does not support a finding of both irreparable injury and a
likelihood of success on the merits, then preliminary
injunctive relief cannot be granted. Marxe v.
Jackson, 833 F.2d 1121, 1123 (3d Cir. 1987).
Third Circuit "has placed particular weight on the
probability of irreparable harm and the likelihood of success
on the merits." Ortho Biotech Prods., L.P. v. Amgen
Inc., No. 05-4850, 2006 WL 3392939, at *5 (D.J.N. Nov.
21, 2006) (quoting Appollo Tech. Corp. v. Centrosphere
Indus. Corp., 805 F.Supp. 1157, 1205 (D.N.J. 1992)). In
fact, irreparable injury is most significant and must be
present for a court to issue a preliminary injunction.
Instant Air Freight Co. v. C.F. Air Freight, Inc.,
882 F.2d 797, 800 (3d Cir. 1989).
instant case, the plaintiff is not entitled to a temporary
restraining order. To grant a preliminary injunction there
must be "a relationship between the injury claimed in
the party's motion and the conduct asserted in the
complaint." Ballv Famiglio, 396 Fed.App'x.
836, 837 (3d Cir. 2010) (quoting Little v
Jones 607 F.3d 1245, 1251 (10th Cir. 2010)). Here,
the complaint is against Wexford Healthcare, who allegedly
committed medical malpractice, yet Plaintiff seeks an
injunction against Officer Kendziora. The lack of connection
between the requested injunction and Plaintiffs complaint is
enough to deny the injunction. See Id. However, in
response to Magistrate Judge Baxter's Report and
Recommendation, Plaintiff requests that his motion be severed
from the instant case, and instead be attached to another
action, civil action 17-16, in which plaintiff has filed a
complaint against Erie County Prison, which implicates
Officer Kendziora. (Doc. No. 18).
it is true that attaching the request for an injunction to
the Plaintiff's complaint against the prison would be
more suitable, it ultimately does not matter. Plaintiff has
not shown the overall need for an injunction. Moreover, a
consideration of the four factors for preliminary injunctions
do not indicate that Plaintiff should be awarded a temporary
Plaintiff has not demonstrated a likelihood of success on the
merits. All Plaintiff has offered are vague statements and
alleged threats made by Officer Kendziora, warning Plaintiff
that he would punish him for requesting medical services
(Doc. No. 7). This evidence is insufficient to show that
Plaintiff will succeed on the merits of the case. In
objection, Plaintiff attempts to bolster his claim, but again
offers little evidence, saying that he is being
"[punished] for a threat against Officer [Kendziora]
with a lawsuit." (Doc. No. 18). This information is
still insufficient for Plaintiff to prevail. The Third
Circuit has repeatedly held that verbal threats alone do not
constitute adverse action for the purposes of establishing a
prima facie retaliation claim. Chrubyv.
Kowaleski, 534 F.App'x 156, 161 (3d Cir. 2013);
Dunbar v. Barone, 487 F.App'x 721, 723 (3d Cir.
2012) (affirming summary judgment for Defendants where
Defendants allegedly threatened Plaintiff by telling him that
he was a "marked man" and that his "days were
numbered"); Burgos v. Canino, 358 F.App'x
302, 306 (3d Cir. 2009) ("Mere threats do not constitute
retaliation."); Booth v. King, 228 F.App'x
167 (3d Cir. 2007) ("Absent any allegation of physical
harm, the defendants' verbal threats do not amount to a
it is not clear that Plaintiff will suffer irreparable harm
if the injunction is denied. Officer Kendziora has not harmed
Plaintiff in any way, nor has plaintiff provided evidence
that there is an imminent threat of harm. Additionally, in
Plaintiff's motion hearing, there is evidence that
Plaintiff was transferred to a different part of the prison,
isolating him from Officer Kendziora. ("So, therefore in
order to ensure that there is no contact between Mr. Baxter
and Officer Kendziora ...