United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge.
before the Court are two motions (Docs. 15, 26) for
preliminary injunction filed by Plaintiff Eduard Zavalunov
("Zavalunov"), an inmate currently confined at the
Allenwood, Low Security Correctional Institution
("LSCI-Allenwood") in White Deer, Pennsylvania. For
the reasons set forth below, the Court will deny the motions
for preliminary injunction.
pro se pleadings which seek emergency relief in the
form of preliminary injunctions are governed by Rule 65 of
the Federal Rules of Civil Procedure. Preliminary injunctive
relief is "an extraordinary remedy" and
"should be granted only in limited circumstances."
Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708
(3d Cir. 2004) (citing AT&T v. Winback and Conserve
Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994)). In
determining whether to grant a motion seeking preliminary
injunctive relief, the Court considers the following four
factors: (1) the likelihood that the movant will prevail on
the merits; (2) the extent to which the movant is being
irreparably harmed by the challenged conduct; (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)). The Third Circuit clarified this
standard. See Reilly v. City of Harrisburg, 858 F.3d
173 (3d Cir. 2017). As a threshold matter, the movant must
establish the two "most critical" factors:
likelihood of success on the merits and irreparable harm.
Id. at 179. Under the first factor, the movant must
show that "it can win on the merits," which
requires a showing that is "significantly better than
negligible but not necessarily more likely than not."
Id. Under the second factor, the movant must
establish that it is "more likely than not" to
suffer irreparable harm absent the requested relief.
Id. Only if these "gateway factors" are
satisfied may the court consider the third and fourth factors
and "determine in its sound discretion if all four
factors, taken together, balance in favor of granting the
requested preliminary relief." Id. at 176, 179.
initiated this action pursuant to the Federal Tort Claims Act
("FTCA"), 28 U.S.C. § 2671, et seq.
Named as Defendants are the United States of America, the
Federal Bureau of Prisons ("BOP"), and the
following BOP employees in their official capacities: D.K.
White, Warden, Arleen Garcia-Haupt, Institution Hearing
Program Assistant, and Hugh Hurwitz, BOP Director. In the
amended complaint, Zavalunov contends that he was improperly
referred to the United States Immigration and Customs
Enforcement ("ICE") for deportation proceedings,
and a detainer was lodged without the required detainer
action letter and warrant. (Doc. 25). He further alleges that
the ICE detainer precludes him from consideration for a
Residential Reentry Center and participation in the
Residential Drug Abuse Treatment Program. (Id.).
instant motions, Zavalunov seeks injunctive relief to enjoin
Defendants from processing detainers without appropriate
forms in violation of policy and federal regulation, and to
remove the ICE detainer from his record. (Docs. 15, 26). The
Court finds that Zavalunov cannot meet the heavy burden of
establishing that injunctive relief is warranted.
Likelihood of Success on the Merits
amended complaint seeks, inter alia, injunctive
relief against the Defendants, however such relief is not
authorized under the FTCA. See Priovolos v. F.B.I.,
632 Fed.Appx. 58, 59 n.1 (3d Cir. 2015) (citing Estate of
Trentadue ex rel. Aguilar v. United States, 397 F.3d
840, 863 (10th Cir. 2005) (recognizing that the FTCA does not
authorize federal courts to issue declaratory judgments and
injunctions against the United States)). As such,
Zavalunov's request for preliminary injunctive relief
does not establish a reasonable likelihood of success on the
merits of his claim for injunctive relief because the Court
may not grant injunctive relief under the FTCA against the
United States. See Michtavi v. United States, 345
Fed.Appx. 727, 730 n. 4 (3d Cir. 2009) (citing Hatahley
v. United States, 351 U.S. 173, 182 (1956) (a district
court does not possess power under the FTCA to enjoin the
injury is harm of such an irreversible character that
prospective judgment would be "inadequate" to make
the moving party whole. See Anderson v. Davila, 125
F.3d 148, 163 (3d Cir. 1997); Instant Air Freight Co. v.
C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir.
1989). An injunction will not issue "simply to eliminate
a possibility of a remote future injury..." Acierno
v. New Castle County, 40 F.3d 645, 655 (3d Cir. 1994)
(citations omitted). Zavalunov has not presented any evidence
that he will suffer irreparable harm by the denial of the
injunctions. On the contrary, Zavalunov can file a habeas
petition challenging the ICE detention and deportation
orders. See Ziglar v. Abbassi, 137 S.Ct. 1843,
1862-63 (2017) (finding injunctive relief and a habeas remedy
can constitute alternative methods of relief). Thus, the
Court finds that Zavalunov has not shown an immediate,
irreparable harm justifying a preliminary injunction.
Zavalunov failed to "demonstrate both a
likelihood of success on the merits and the probability of
irreparable harm if relief is not granted," the motions
must be denied. Hohe v. Casey, 868 F.2d 69, 72 (3d
Cir. 1989) (emphasis in original) (quoting Morton v.
Beyer, 822 F.2d 364, 367 (3d Cir. 1987)).
on the foregoing, the Court will deny the motions (Doc. 15,
26) for preliminary ...