United States District Court, W.D. Pennsylvania
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE.
Ernest Porter (“Plaintiff”), an inmate at the
State Correctional Institution at Greene (ASCI-Greene@), has
presented a civil rights complaint, which he has been granted
leave to prosecute without prepayment of costs, alleging that
Defendants have violated his rights provided by the Eighth
and Fourteenth Amendments to the United States Constitution
by continuing to confine him in the Capital Case Unit
(“CCU”) even though his sentence of death has
before this Court is a Motion for Preliminary Injunction
submitted by Plaintiff, ECF No. 13, wherein Plaintiff largely
reiterates the claims set forth in his Complaint, arguing
that “for more than 13-years since Plaintiff's
Death Sentence had been Vacated the Respondents have kept
Plaintiff Illegally Confined under Punitive solitary
Confinement at the State Correctional of Greene County,
Pennsylvania, and have acted with deliberate indifference to
a substantial risk of serious harm.” ECF No. 13 ¶
1. Plaintiff's Motion, as well as his Complaint, is based
upon the recent decision by United States Court of Appeals
for the Third Circuit in Williams v. Sect'y of the
Pa. Dept. of Corr., 848 F.3d 549 (3d Cir. 2017), wherein
the Court held that “the Due Process Clause of the
Fourteenth Amendment . . . limits the State's ability to
subject an inmate to the deprivations of death row once the
death sentence initially relied upon to justify such extreme
restrictions is no longer operative.” Id. at
552. Plaintiff contends that because his death sentence has
been vacated, his continued confinement in the CCU runs afoul
of Williams necessitating his immediate placement in
the general population.
preliminary injunction is an extraordinary and drastic remedy
that "should not be lightly indulged in, but used
sparingly and only in a clear and plain case." Emile
v. SCI-Pittsburgh, No. 04-974, 2006 WL 2773261, at *6
(W.D. Pa. Sept. 24, 2006), quoting Plain Dealer
Publ'g Co. v. Cleveland Typographical Union #53, 520
F.2d 1220, 1230 (6th Cir. 1975). See AT&T
v. Winback and Conserve Prog. Inc., 42 F.3d 1421,
1426-27 (3d Cir. 1994). "[G]reat caution" and
"judicial restraint" are particularly called for in
the prison context where "complex and intractable
problems of prison administration" are implicated.
Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).
See Bailey v. Gagnon, No. 06-1154, 2009 WL 982694,
at *1 (W.D. Pa. April 9, 2009).
determining whether a preliminary injunction is warranted,
the District Court is to consider “(1) whether the
movant has a reasonable probability of success on the merits;
(2) whether irreparable harm would result if the relief
sought is not granted; (3) whether the relief would result in
greater harm to the non-moving party, and (4) whether the
relief is in the public interest.” Monroe v.
Bryan, No. 12-1627, 2012 WL 2478375, at *1 (3d Cir. June
29, 2012), quoting Swartzwelder v. McNeilly, 297
F.3d 228, 234 (3d Cir. 2002). See Abu-Jamal v.
Price, 154 F.3d 128, 133 (3d Cir. 1998) (for an inmate
to sustain his burden of proof that he is entitled to a
preliminary injunction, he must demonstrate both a reasonable
likelihood of success on the merits and that he will be
irreparably harmed if the requested relief is not granted).
"[I]t is the movant's burden to show that the
'preliminary injunction must be the only way of
protecting the plaintiff from harm.'" Emile v.
SCI-Pittsburgh, 2006 WL 2773261, at *6, quoting
Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 91 (3d
Cir. 1992). Indeed, because "[t]he purpose of a
preliminary injunction is to preserve the status
quo, not to decide the issues on their merits[, ]
Anderson v. Davila, 125 F.3d 148, 156 (3d Cir.
1997), irreparable harm is established by showing that the
plaintiff will suffer injury that "cannot be redressed
by a legal or an equitable remedy following trial."
Messner v. Bunner, No. 07-112E, 2009 WL 1406986, at
*4 (W.D. Pa. May 19, 2009), quoting Instant Air Freight
Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d
it is apparent from the record before the Court that
Plaintiff is unable to show a likelihood of success on the
merits and therefore his Motion will be denied.
record shows that Plaintiff filed a Petition for Writ of
Habeas Corpus in the United States District Court for the
Eastern District of Pennsylvania on or about May 25, 1999,
which was granted in part and denied in part on June 26,
2003. ECF No. 21-1 at 13-27: #1, #109 (Civil Docket for Case
No. 2:99-cv-02677). See Porter v. Horn, 276
F.Supp.2d 278, 364-65 (E.D. Pa. 2003). Specifically, the
Court granted relief with respect to Plaintiff's sentence
of death, which was concomitantly vacated, and denied the
petition in all other respects. Id. The Order also
stated, however, that “if either Petitioner or
Respondents file an appeal to the United States Court of
Appeals for the Third Circuit, the entry of this Order will
be stayed pursuant to Eastern District of Pennsylvania Local
Rule 9.4(12) pending the disposition of that appeal.”
Id. Not only did Respondents appeal the granting of
habeas relief relative to Plaintiff's sentence to the
Third Circuit Court of Appeals but Plaintiff appealed the
portion of the Order denying relief on the other issues
raised in his habeas petition. ECF No. 21-1 at 26: #112,
#114; ECF No. 21-1 at 28-37 (General Docket for Case No.
03-9006 (3d Cir.); ECF No. 21-1 at 38-47 (General Docket for
Case No. 03-9007 (3d Cir.)). Consequently, the Order vacating
Plaintiff's death sentence was stayed pending the outcome
of those appeals. The record shows that those appeals are
still pending and thus the Order vacating Plaintiff's
death sentence remains stayed. Id. Plaintiff's
death sentence therefore is still operative and his continued
confinement in the CCU does not violate Williams.
Under these circumstances, Plaintiff is unable to show that
he is likely to succeed on the merits of his claim and
injunctive relief is not warranted.
the following Order is entered:
this 15th day of September, 2017, upon
consideration of Plaintiff's Motion for a Preliminary
Injunction and Defendants' Response thereto, IT IS HEREBY
ORDERED that Plaintiff's Motion for Preliminary
Injunction is DENIED.
 Plaintiff was convicted of Murder in
the First Degree on June 27, 1986 in the Court of Common
Pleas of Philadelphia County, Pennsylvania, and subsequently
sentenced to death. ECF No. 21-1 at 4-5 (Criminal Docket for
Case No. CP-51-CR-0622491-1985). His conviction and sentence
were subsequently affirmed by the Supreme Court of
Pennsylvania in an Opinion dated February 8, 1990.
Commonwealth v. Porter, 569 A.2d 942 (Pa.
 It appears that The Court of Appeals
for the Third Circuit entered an order on February 12, 2004,
staying the briefing schedules on the parties' respective
appeals pending a decision by the United States Supreme Court
in Banks v. Horn, No. 02-1603. ECF No. 21-1 at 32,
42. Although the stay was lifted on September 8, 2004
following the Supreme Court's decision in Banks,
Plaintiff subsequently filed two motions on October 22, 2004
and October 27, 2004, respectively, asking that the briefing
schedules be temporarily tolled pending the disposition of
two other cases then pending in the United States Supreme
Court. Id. Plaintiff subsequently withdrew one of
those requests and, following the Supreme Court's
decision in the second case, the briefing schedules on
Plaintiff's cases were reinstated. Id. at 33,
42-43. Plaintiff, however, filed four motions seeking an
extension of time of 60 days each to file his brief and
appendix, which were all granted. Id. Then, on
November 9, 2006, Plaintiff filed a Motion asking to hold the
appellate proceedings in abeyance pending the Pennsylvania
Supreme Court's disposition of Plaintiff's Petition
for State Post-Conviction Relief filed on August 16, 2002,
wherein he raised a claim under Atkins v. Virginia,
536 U.S.304 (2002). Id. at 33, 43. That motion was
granted by the Third Circuit Court of Appeals on February 7,
2007, with the added directive that the parties were to file
status reports regarding the PCRA proceedings every 60 days
until the conclusion of the state proceedings. Id.
at 34, 43-44. Review of the appellate docket sheets show that
the latest status report was filed on August 16, 2017, in
which it is indicated that Plaintiff's PCRA Petition with
respect to the Atkins issue has yet to be ruled on.
Id. at 37, 47. See id. at 48-50 (8/16/17
Status Report). (It should be noted here that Plaintiff
supplemented his PCRA Petition on June 15, 2006, raising a
claim under Brady v. Maryland, 373 U.S. 83 (1963).
Although the PCRA court issued a ruling dismissing the PCRA
Petition on November 8, 2007, it did so finding that it was
time-barred and did not meet the requirement of
Brady material. Com. v. Porter, 35 A.3d 4,
7-11 (Pa. 2012). The PCRA court did not address the
Atkins issue and that portion of the PCRA Petition