Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00394-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JONI L. JOHNSON, Plaintiff, v. JOSEPH BIDEN, JR., COMMISSIONER CARL DANBERG, BUREAU CHIEF RICK KEARNY, WARDEN PATRICK RYAN, COLLEEN SHOTZBURGER, MS. RUSSELL, and MR. O'CONNOR Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

C. A. No. 07-394-GMS

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF COMES NOW, Defendant Carl C. Danberg ("Defendant"), by and through undersigned counsel and hereby opposes Plaintiff's Motion for Preliminary Injunctive Relief. (D.I. 14). In support of his position, Defendant states the following: 1. On or about June 18, 2007, Plaintiff Joni Johnson ("Johnson"), an inmate

incarcerated at the Baylor Women's Correctional Institution ("BWCI") commenced this action by filing a Motion for Preliminary Injunctive Relief. (D.I. 1). On or about July 10, 2007, Johnson filed a motion for leave to proceed in forma pauperis against the above captioned Defendants. (D.I. 8). On or about October 11, 2007, Defendants were ordered by the Court, to respond to Johnson's Motion for Injunctive Relief on or before October 18, 2007. (D.I. 14). 2. A service order has not been issued by the Court because the pro se inmate

complaint has not yet been reviewed by the Court pursuant to 28 U.S.C. § 1915. Thus,

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Defendants have not been served with the Complaint. Defendant Danberg does not waive service by the filing of this motion, or any other affirmative defenses. However, given the Court's Order, the allegations contained in Johnson's motion and in the interests of preserving their rights and arguments, Defendant files this response in opposition to Johnson's Motion for Injunctive Relief. 3. Plaintiff contends that State Defendants have prevented her from filing a

lawsuit revealing prison abuses by denying her access to her legal research, legal documents, and access to the law library. Not only does Plaintiff fail to identify the specific conduct which demonstrates a wrongful interference with her constitutionally protected right to access the courts, but also, fails to specify the involvement that these Defendants had in furtherance of the alleged deprivation. 4. Federal Rules of Civil Procedure Rule 65(a) sets out the standard to bring

into play injunctive relief. "[T]he grant of injunctive relief is an `extraordinary remedy, which should be granted only in limited circumstances.'" Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989) (quoting Frank's GMC Truck CTR. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988)). The decision to grant or deny a motion for injunctive relief rests with the sound discretion of the district judge. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir. 1978). 5. The purpose of injunctive relief is to address a presently existing threat.

Continental Group, Inc. v. Amoco Chem. Corp., 614 F.2d 351, 359 (3d Cir. 1980) (quoting Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d 614, 618 (3d Cir. 1969). Therefore, the party seeking an injunction must demonstrate that the threatened injury is immediate.

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6.

In order to grant injunctive relief, the court must be sufficiently satisfied

that the party seeking relief has demonstrated: (1) a reasonable probability of success on the merits; (2) immediate and irreparable injury will suffer if relief is denied; (3) a grant of relief will not result in greater harm to the other party; and (4) the public interest will be served by the grant of injunctive relief. Clear Ocean Action v. York, 57 F.3d 328, 331 (3d Cir. 1995); Maldonado v. Houston, 157 F.3d 179, 184 (3d Cir. 1998). "All four preliminary injunction factors should favor preliminary relief before injunction will issue." S & R Corp. v. Jiffy Lube Inter., Inc., 968 F.2d 371, 374 (3d Cir. 1992). 7. Plaintiff contends that she is being denied access to the law library.1 Plaintiff

has failed to produce substantial evidence that State Defendants denied her access to her legal research, legal documents, photocopies, and stationary supplies. To the contrary, however, Plaintiff has visited the law library at BWCI numerous times from July 2006 to the present. See attached Exhibit A, Affidavit of BWCI Law Librarian George

O'Connor. State Defendants have fully accommodated Plaintiff's requests for stationary supplies, legal documents, ability to make photocopies, and access to legal research, as evidenced by the Inmate Law Library Appointment Report (Report included in Exhibit A). Therefore, Plaintiff cannot show the likelihood of success on any claim that she was denied access to the law library. 8. Regarding the element of immediate and irreparable injury, Plaintiff states that she is being denied access to the Courts to make various legal filings. Plaintiff has failed to produce substantial evidence that State Defendants denied her access to the Courts. State Defendants have not obstructed Plaintiff's ability to make Court filings. Instead,
1

Plaintiff fails to cite to any specific violation of state or federal law in making this claim (denial of access to the law library).

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Plaintiff has received substantial assistance from the law library staff in receiving state and federal legal forms, making photocopies, notarizing documents and help with other occurrences in the law library. See attached Exhibit A, Affidavit of BWCI Law Librarian George O'Connor. Plaintiff has failed to show that she missed any opportunities to file in Court as a result of BWCI staff. 9. There is no sufficient evidence that State Defendants have refused appropriate accommodations for Plaintiff's access to her court needs. To the contrary, inmates at BWCI are provided an inmate handbook that lists available programs and services, including use of the law library services. See Exhibit B, Inmate Handbook. Specifically, the inmate handbook outlines the procedures an inmate must follow to use the library. Id. Plaintiff is aware of the rules and regulations pertaining to access to the law library. Id. 11. Clearly, the record does not support that Plaintiff was denied access to

legal research, legal documents or access to the law library. In fact, all inmates are eligible to access the library services free of charge. 12. To succeed, Plaintiff must demonstrate that the threatened injury is

immediate and clearly shown. Acierno v. New Castle County, 40 F.3d at 645. Plaintiff has failed to make an adequate showing that she faces immediate and irreparable harm. 13. Lastly, the Plaintiff does not consider the effect of the injunction on other

interested persons as well as the public interest in general. A prisoner does not have the right to unlimited law library access. For safety concerns (including consideration of all other inmates requesting use of the law library), as outlined in Exhibit A, inmates must request their law library access in advance in order to receive that accommodation. The prison regulations governing access to the law library are related to legitimate

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penological interests.
CONCLUSION

Based on the reasons set forth above, State Defendants contend that the Plaintiff has not demonstrated an adequate showing to warrant the extraordinary relief that she is requesting. Therefore, State Defendants respectfully request the Court deny Plaintiff's motion for injunctive relief.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Catherine Damavandi Catherine Damavandi, I.D. No. 3823 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302) 577-8400 [email protected] Attorney for State Defendants DATE: October 18, 2007

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CERTIFICATE OF SERVICE I hereby certify that on October 18, 2007, I electronically filed Defendant's Opposition to Plaintiff's Motion for Preliminary Injunctive Relief with the Clerk of Court using CM/ECF. I hereby certify that on October 18, 2007, I have mailed by United States Postal Service, the document to the following non-registered participant:

Joni Johnson, Inmate SBI#182823 Delores J. Baylor Women's Correctional Institution, 660 Baylor Blvd., New Castle, DE 19720

. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Catherine Damavandi Catherine Damavandi, I.D. No. 3823 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302) 577-8400 [email protected] Attorney for State Defendants

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