Free Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD E. CLARK, JR., ) ) Plaintiff, ) ) v. ) ) WARDEN RAPHAEL WILLIAMS, et al., ) ) Defendants. )

Civil Action No. 07-239-JJF Jury Trial Requested

WARDEN RAPHAEL WILLIAMS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION [RE: D.I.14] COMES NOW, State Defendant Warden Raphael Williams ("Warden Williams"), by and through his undersigned counsel, and hereby responds in opposition (the "Response") to Plaintiff's Motion for a Temporary Restraining Order and a Preliminary Injunction (the "Motion for Preliminary Injunction") (D.I. 14). In support of the Response, Warden Williams states as follows: 1. Plaintiff Richard E. Clark, Jr. ("Clark" or "Plaintiff") is an inmate

presently incarcerated at the Howard R. Young Correctional Institution ("HRYCI") in Wilmington, Delaware. Clark is appearing pro se in this matter with leave to proceed in forma pauperis. 2. On May 2, 2007, Clark filed a Complaint claiming that the

Defendants violated his Eighth Amendment rights by allegedly housing him in a cell with an inmate infected with HIV and Hepatitis B. Clark also claims that, as a result of being housed with the inmate, he received Hepatitis B. In addition, Clark asserts that the

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Defendants violated his Eighth Amendment rights by neglecting to provide him with proper medical treatment. (D.I. 2). 3. The docket in this matter reflects that, to date, Clark has not served

the Complaint on Warden Williams, Lieutenant Sheets or the other Defendants. 4. On October 12, 2007, Clark filed the Motion for Preliminary

Injunction alleging that the Defendants were retaliating against him for filing his lawsuit by opening his legal mail, manipulating his regular mail, providing him with inadequate medical treatment and threatening him. (D.I. 14). In support of his allegations Clark claims that he has been threatened with placement in administrative segregation. Clark, however, does not state which employees threatened him with administrative segregation. Clark also claims that, "One of Plaintiff's defendants, Lt. Sheets has been very intimidating due to threatining [sic] looks, and statements made on his behalf." (D.I. 14 at Declaration ¶ 5). 5. Less than one week after Clark filed the Motion for Preliminary

Injunction, the Court entered an order directing the Defendants to respond to the Motion for Preliminary Injunction on or before October 24, 2007. (D.I. 16, entered 10/18/07). 6. On October 24, 2007 ­ the deadline for filing a response ­ the

Attorney General's Office received the Court's Order and filed a Motion for Extension of Time requesting until on or before October 31, 2007 to file a response to the Motion for Preliminary Injunction. (D.I. 23). On the same date, HRYCI placed Clark in protective custody pending resolution of the Motion for Preliminary Injunction. (D.I. 24). 7. The next day, October 25, 2007, Clark waived his right to

protective custody stating that, "[I] do not fear for my safety. At this time I don't feel

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threatened." (Exhibit A). On October 25, in accordance with Clark's wishes, HRYCI transferred Clark back to general population. In addition, counsel for Warden Williams filed a letter and supporting documentation with the Court informing the Court that Clark no longer wished to be housed in protective custody. (D.I. 25). 8. The aforementioned facts clearly show that the Defendants have

not retaliated against Clark. The Defendants were not served with Plaintiff's Complaint prior to the filing of the Motion for Preliminary Injunction. Moreover Clark has not suffered any adverse action at the hands of Warden Williams or Lieutenant Sheets. In fact Clark admits that he does not believe his life is in danger or that he needs protective custody. In light of the foregoing, Warden Williams requests that the Court deny the Motion for Preliminary Injunction. 9. A grant of injunctive relief is an extraordinary remedy. Thus a

request for injunctive relief should only be granted in limited circumstances. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989). 10. In the Third Circuit a district court should grant a request for

preliminary injunction only if "(1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm to the plaintiff; (3) granting the injunction will not result in irreparable harm to the defendant; and (4) granting the injunction is in the public interest." Maldonado v. Houstoun, 157 F.3d 179, 184 (3d Cir. 1998). An injunction should only issue if all four factors favor relief. See S & R Corporation v. Jiffy Lube International, Inc., 968 F.2d 371, 374 (3d Cir. 1992). 11. To obtain a preliminary injunction Clark must satisfy all four

factors. If Clark cannot prove that he has a likelihood of success on the merits of his

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retaliation claim or that he is likely to suffer irreparable injury, the request for preliminary injunction should be denied. See Instant Air, 882 F.2d at 800. I. Clark Is Not Likely To Succeed On The Merits Of His Retaliation Claim. 12. Clark's Motion states that the Defendants are retaliating against

him for filing the lawsuit. To demonstrate a likelihood of success on the merits of a retaliation claim a plaintiff must show that: (1) the conduct which led to the alleged retaliation was constitutionally protected; (2) he suffered some "adverse action" at the hands of the prison officials; and (3) his constitutionally protected conduct was "a substantial or motivating factor" in the adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). If the plaintiff can demonstrate a likelihood of success, the burden then shifts to the prison officials to demonstrate that "they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest." Id. at 334. A. 13. Clark has not suffered adverse action at the hands of Warden Williams or Lieutenant Sheets. Clark provides several areas in which the Defendants have

allegedly retaliated against him: a) threatening him with placement in administrative segregation; b) intimidating him with threatening looks and statements; c) denying him medical treatment; and d) manipulating his legal and regular mail. Clark, however, cannot prove that this allegedly adverse action took place or that it was committed at the hands of the Defendants. 14. First, Clark claims that he has been threatened with placement in

administrative segregation in retaliation for filing his lawsuit. Clark, however, fails to

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provide a single detail regarding these alleged threats. He does not state who threatened him, when he was threatened, where, in what manner or what was said. In addition, Clark never filed a single grievance at HRYCI stating that he was threatened with placement in administrative segregation. Clark also never states that he has actually been placed in administrative segregation. In fact, Clark is housed in general population and currently participates in the Key Program. Clearly Clark's allegations are unsubstantiated and should not form the basis for injunctive relief. 15. Second, Clark alleges that Lieutenant Sheets intimated him by

giving him threatening looks and causing others to make threatening statements to him. Again Clark does not state with specificity who threatened him, when he was threatened or what was said. He also does not state how Lieutenant Sheets "looked" at him. Clark simply makes bald, unsubstantiated allegations. Further Clark never filed a single

grievance stating that he was threatened or intimidated by Lieutenant Sheets. Clark's allegations are unsubstantiated and should not form the basis for the extraordinary relief of a preliminary injunction. 16. Next, Clark contends that he is not receiving medical treatment in

retaliation for filing the lawsuit. Clark's allegations are false. Clark's medical records demonstrate that he has been seen by the medical provider many times over the past few months and has received numerous lab tests. (Exhibit B). Moreover, in a recent appeal of a grievance Clark admits that his lab work is being done on a consistent basis and that he is being seen by a doctor. (Exhibit C). Thus the evidence demonstrates that Clark is receiving medical attention.

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17.

Finally, Clark alleges that HRYCI is tampering with his mail in

retaliation for his lawsuit. Again Clark fails to provide any specific details about this alleged tampering. Further, Clark never claims that this alleged tampering was done at the hands or request of Warden Williams or Lieutenant Sheets. To the extent then that Clark has had problems with his mail it does not prove the problems were the result of retaliation for filing his lawsuit. Therefore Clark cannot meet his burden for a grant of injunctive relief. B. Warden Williams and Lieutenant Sheets were not served with the lawsuit prior to the commission of the allegedly adverse action. Therefore Clark cannot prove the lawsuit was a motivating factor in the alleged retaliation. Assuming, arguendo, that Clark is able to show that the adverse

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action was done at the hands of the Defendants he must also demonstrate that the filing of the lawsuit was the motivating factor in the adverse action. Clark, however, cannot meet this burden. 19. The record shows that, to date, Clark has not served the

Defendants with the lawsuit. Given that the Defendants have not been served with the lawsuit Clark cannot prove that the Defendants were aware of the lawsuit at the time of the alleged adverse action and that the lawsuit was a substantial motivating factor in the alleged retaliation. Therefore Clark cannot meet his burden for injunctive relief. II. Clark Will Not Suffer Irreparable Injury If The Court Denies His Request For Injunctive Relief. 20. This Court should also deny the Motion for Preliminary Injunction

on grounds that Clark cannot show that he will suffer irreparable injury. To demonstrate irreparable injury a plaintiff must prove "more than a risk of irreparable harm ...."

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Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir. 1980) (emphasis added). Injunctions are not issued to eliminate a possibility of a remote future injury. Id. Rather, courts issue an injunction where the movant has shown that he "is in danger of suffering irreparable harm at the time the preliminary injunction is to be issued." SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1264 (3d Cir. 1985). In this case, Clark cannot prove that he will suffer irreparable injury if his request for relief is denied. 21. Clark's claims of retaliation are nothing more than bald and

unsubstantiated allegations. Further, assuming Plaintiff does have evidence to support his allegations, he has not proven that acts of retaliation are likely to occur at the time the injunction is issued. Injunctive relief is used to prevent definite future harms, not to remedy past violations. See SEC v. Bonastia, 614 F.2d 908, 912 (3d Cir. 1980). In documents filed with this Court Clark explicitly states that he does not fear for his safety nor does he feel threatened. (Exhibit A). In fact, despite the HRYCI placing Clark in protective custody, Clark chose to waive his right to protective custody and return to general population. (Id.). Thus by his own actions Clark demonstrates that he does not believe he will suffer irreparable injury if the Court denies the Motion. 22. Clark's allegations are unfounded. The evidence demonstrates that

the Defendants have not retaliated against Clark. Moreover it is clear that Clark will not suffer any irreparable injury if the Court denies the injunction. Therefore the facts of this case do not merit the extraordinary relief a preliminary injunction is designed to provide and the Motion should be denied.

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WHEREFORE, Warden Williams respectfully requests that this Honorable Court deny Plaintiff's Motion for Preliminary Injunction.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Erika Y. Tross Ophelia M. Waters (#3879) Erika Y. Tross (#4506) Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302)577-8400 Attorney for Warden Williams

Dated: October 31, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD E. CLARK, JR., ) ) Plaintiff, ) ) v. ) ) WARDEN RAPHAEL WILLIAMS, et al., ) ) Defendants. ) ORDER Upon the Plaintiff's Motion for a Temporary Restraining Order and a Preliminary Injunction (D.I. 14), and Warden Raphael Williams' Response in Opposition to Plaintiff's Motion for a Temporary Restraining Order and a Preliminary Injunction; and it appearing that good and sufficient notice of Plaintiff's Motion and Warden Williams' Response has been given; and after due deliberation thereon: IT IS HEREBY ORDERED that Plaintiff's Motion for a Temporary Restraining Order and a Preliminary Injunction is DENIED. SO ORDERED this _________ day of ______________, 2007. ____________________________________ The Honorable Joseph J. Farnan, Jr. United States District Court Judge

Civil Action No. 07-239-JJF Jury Trial Requested

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CERTIFICATE OF SERVICE
I, Erika Y. Tross, Esq., hereby certify that on October 31, 2007, I caused a true and correct copy of the attached Warden Raphael Williams' Response In Opposition To Plaintiff's Motion For A Temporary Restraining Order And A Preliminary Injunction [Re: D.I. 14] to be served on the following individual in the form and manner indicated: NAME AND ADDRESS OF RECIPIENT(S): Inmate Richard E. Clark Jr. SBI # 477726 Howard R. Young Correctional Institution P.O. Box 9279 Wilmington, DE 19809 MANNER OF DELIVERY: One true copy by facsimile transmission to each recipient Two true copies by first class mail, postage prepaid, to each recipient Two true copies by Federal Express Two true copies by hand delivery to each recipient

/s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 302-577-8400

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD E. CLARK, JR., ) ) Plaintiff, ) ) v. ) ) WARDEN RAPHAEL WILLIAMS, et al., ) ) Defendants. )

Civil Action No. 07-239-JJF Jury Trial Requested

SEALED EXHIBIT

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