Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00082-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM H. BOOZE, IV, ) ) Plaintiff, ) ) v. ) ) CORRECTIONAL MEDICAL SERVICES, ) INC., et al, ) ) ) Defendants. )

C.A. No. 07-82-GMS

WARDEN THOMAS CARROLL'S RESPONSE IN OPPOSITION TO PLAINTIFF'S APPLICATION FOR INJUNCTIVE RELIEF Warden Thomas Carroll, by and through undersigned counsel, hereby urges this Honorable Court pursuant to Federal Rule of Civil Procedure Rule 65 to deny Plaintiff's application for injunctive relief. To support this opposition for injunctive relief, Warden Carroll responds as follows:
FACTUAL BACKGROUNDAND PROCEDURAL HISTORY

1.

On or about February 13, 2007 William H. Booze, IV, Plaintiff, currently

incarcerated at the Delaware Correctional Center ("DCC"), filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 against prison officials and medical care providers. Specifically, he is suing Inmate Classification Administrator Anthony Rendina, Staff Lieutenant James P. Satterfield, and DCC Disciplinary Hearing Officer Ralph Heverin. In addition to naming prison officials as defendants, plaintiff identifies several Correctional Medical Services ("CMS") medical personnel he alleges made verbal threats against him and refused to provide medical treatment. 2. On or about April 20, 2007, Plaintiff wrote a letter motion for injunctive

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relief requiring "CMS and its staff to stop threatening and harressing (sic) me, to issue my nitro and pain-off pills." Respondent Carroll denies Plaintiff's claims of retaliation and offers this response in opposition to Plaintiff's motion seeking injunctive relief.
LEGAL STANDARD

3.

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). 4. 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. 5. In order to grant injunctive relief, the court must be sufficiently satisfied

that the party seeking relief has demonstrated a reasonable probability of success on the merits; immediate and irreparable injury will suffer if relief is denied; a grant of relief will not result in greater harm to the other party; and 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. Houstoun, 157 F.3d 179, 184 (3d Cir. 1998). "All four preliminary injunction factors should favor preliminary relief before injunction will issue." S & R

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Corp. v. Jiffy Lube Inter., Inc., 968 F.2d 371, 374 (3d Cir. 1992).
PLAINTIFF CANNOT SHOW LIKELIHOOD OF SUCCESS ON THE MERITS OF THE RETALIATION CLAIM

6.

The United States Court of Appeals for the Third Circuit defined the

elements of a prisoner's cause of action for retaliation and the burden he must carry to succeed on that claim. See Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001). The court established a three prong test to determine whether retaliation has occurred. The first Rauser prong requires a prisoner to prove that he engaged in constitutionally protected conduct which led to the alleged retaliation. In keeping with the Rauser analysis, the second prong requires the prisoner to show that he has suffered some adverse action at the hands of prison officials. The third Rauser factor requires the prisoner to establish a causal link between the constitutional right exercised, and the adverse action taken against him. Rauser, 241 F.3d at 333 (citing Allah v. Seiverling, 229 F.3d 220, 225 (3d. Cir. 2000) ). If the plaintiff can show that the constitutionally protected conduct "was a substantial or motivating factor in the challenged decision, prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest." Id. at 334. 7. Indeed, a prisoner has a constitutional due process right of access to the

courts. Bounds v. Smith, 430 U.S. 817 (1977); Lewis v. Casey, 518 U.S. 343 (1996). In the instant case, assuming arguendo, Plaintiff has demonstrated he has engaged in constitutionally protected conduct leading to his claim of retaliation, he must demonstrate that actions taken by the defendants are the result of retaliatory motivation. 8. Plaintiff's conduct leading to his claim of retaliation begins with his filing

of a lawsuit on February 13, 2007. He alleges that he "has been threatened by Dr. Dale

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Rogers . . . nurse Gani Neal, nurse Rebecca Vliet, and other CMS staff." He further states, "nurse Neal and Dr. Rogers informed me that since I wish to sue, they would `fix my ass' and nurse Neal and Vliet had the building Sgt. Remove all medications from my quarters." Plaintiff pleads with the court to issue an order "telling CMS and its staff to stop threating (sic) and harressing (sic) me, to issue my nitro and pain-off pills." 9. On or about May 9, 2007, a CMS medical doctor (signature illegible),

wrote a medical status report on Mr. Booze, plaintiff, which describes plaintiff's current medical conditions and recommended medication list. See Correctional Medical Services Inter Disciplinary Progress Notes attached as Exhibit "A". Notwithstanding Plaintiff's need for extensive medical treatment, and his fraught requests for medication, he repeatedly refused to accept necessary medical treatment and recommendations. See Correctional Medical Services Release of Responsibility attached 10 pages as Exhibit "B". Given the details of plaintiff's medical history and treatment, coupled with plaintiff's blatant refusal to take his prescribed medication, he cannot demonstrate a violation of his Eighth Amendment right to adequate medical care has occurred. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); accord White v. Napolean, 897 F.2d 103, 109 (3d Cir. 1990). There is nothing in the record to show that prison officials acted with intent or recklessness evidencing a deliberate indifference to plaintiff's medical needs. See Estelle, 429 U.S. at 105. "Where the plaintiff has received some care, inadequacy or impropriety of the care that was given will not support an Eighth Amendment claim." Norris v. Frame, 585F.2d 1183, 1186 (3d Cir. 1978). 10. One year earlier on May 13, 2006, during medication administration

pass, Plaintiff falsely reported to the nursing staff that he was without medication. See

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Incident Report #1032430 attached as Exhibit "C". He presented nurse Vliet with empty medicine bottles, cards and boxes to support his claim. Id. Recognizing that plaintiff was abusing his privileges in the "KOP" program for self-medication, "all medication [was] confiscated and returned to the medical department. The nurses will now be given him his medication each day." Id. The medical staff took immediate action to ensure there is no confusion over medication administered and the appropriate dosages. Id. Such measures prevent a risk of harm to plaintiff, and others who potentially could find and ingest the pills. Id. For example, permitting plaintiff to have the security staff inform nurses that he is out of medications may result in him not receiving the proper medications which have been ordered. See Exhibit C. In essence, Plaintiff engaged in the dangerous practice of hoarding medications for improper and illegal purposes. Id. As a result, the medical staff required that all of Plaintiff's medications were to be administered by the medical staff on a daily basis. Id. 11. Plaintiff has failed to produce any evidence that Warden Carroll or any

security staff at Delaware Correctional Center interfered with plaintiff's right to access the courts. Moreover, he has failed to demonstrate that prison officials took adverse action against him for pursuing legal redress. Yet, he urges the court to prevent defendants from retaliating against him. (D.I. 8). 12. There is no sufficient record evidence that prison officials have refused

appropriate accommodations for Plaintiff's access to court needs. To the contrary, a review of the District Court docket confirms that plaintiff has the ability to access the court. 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 regardless of

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their housing units or medical conditions are eligible to access the library services free of charge. See Michael Little, Legal Services Administrator Affidavit attached as Exhibit "D" with attachment 1. 13. Plaintiff cannot demonstrate that any constitutionally protected conduct

was a "substantial or motivating factor" in the alleged retaliatory conduct. Contrary to claims of retaliatory adverse treatment, any actions to remove Plaintiff's medications from his cell after he abused his privileges and placed himself and fellow inmates' health and safety at risk, were reasonably related to legitimate penological objectives. The inmate rules of conduct identify creating a health, safety or fire hazard as a class one disciplinary infraction. Lying and possession of non-dangerous contraband are class two offenses. All disciplinary infractions may be subject to disciplinary action. (See Disciplinary Report # 1024975 attached as Exhibit "E"). 14. In the instant case, Plaintiff acknowledges that he has utilized the law

library services to research and prepare legal documents. However, to engage in such practices as lying about the administration of medications in an effort to obtain an excess of the required dosages is clearly an abuse of a prisoner's self-medication privileges afforded Plaintiff, and a blatant disregard for institutional rules and regulations. Plaintiff's use of his serious medical condition to obtain more medication than is prescribed certainly creates great health and safety risks within the prison administration. Exhibit C. Prison administrators have a legitimate interests in managing institutional security and safety. Turner v. Safely, 482 U.S. 78, 89 (1987). To curtail abuses of selfmedication privileges, as is evident in this case, enforcement of the inmate rules of conduct is necessary. So far, Plaintiff seeks to invoke the court's power to issue an

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extraordinary writ as injunctive relief merely to compel the prison officials to comply with his ever unreasonable demands for unregulated medication administration. 15. Although Plaintiff must satisfy this second requirement by indicating the

action was sufficient to deter a person of ordinary firmness from exercising his constitutional right, Warden Carroll contends that his staff has taken no action against Plaintiff to deter his pursuit of his lawsuit. Moreover, there is no record evidence sufficient to support Plaintiff's claim that retaliatory action was taken against him. 16. Initially, Plaintiff must show that his constitutionally protected conduct

was a substantial or motivating factor in the decision to discipline him or retaliate against him. Mount Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977). However, under the burden-shifting framework used to decide whether retaliation occurred, Defendants must then prove by a preponderance of the evidence that they would have taken the same action even in the absence of the protected activity. Rauser, 241 F. 3d at 333. The Turner Court, considering the difficult tasks of prison administration, held that a prison regulation that impinges on the constitutional rights of an inmate is valid if it is "reasonably related to legitimate penological interests." 482 U.S. at 89. Thus, Plaintiff must at the outset prove that his exercise of a constitutional right was a substantial or motivating factor in the challenged decision. However prison officials may refute this claim by showing that they would have acted in the same manner absent the protected conduct for reasons reasonably related to valid penological interests. Upon such a showing, they must prevail over Plaintiff's retaliation claims. 17. In the beginning, Plaintiff describes the adverse action taken by the prison

officials, specifically medical staff as a refusal to permit him self-medication privileges.

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This refusal, Plaintiff claims, is an effort to prevent him from pursuing his lawsuit. (D.I. 8). The challenged action of removing medications from plaintiff's cell is merely a legitimate penological interest to control and manage the prisons safety and security. See James Satterfield, Lieutenant, Affidavit attached as Exhibit "F".
PLAINTIFF CANNOT MAKE A CLEAR SHOWING OF IRREPARABLE HARM

18.

As has been pointed out above, plaintiff has refused to take medication as

prescribed and directed. See Incident Report #1039652 attached as Exhibit "G". He appears to elicit the court's intervention to decide his medication administration. Specifically, Plaintiff suggests to the District Court that he is able to administer his medication without the assistance of the medical staff if the court grants him injunctive relief. (D.I. 8). Plaintiff seeks to encourage the court to disregard the judgment of medical authorities and the prison authorities. In essence, he seeks to dictate the prison administrators' ability to regulate an inmate's medical care. 19. All the same, to succeed, Plaintiff must demonstrate that the threatened

injury is immediate and clearly shown. See, New Jersey Hosp. Ass'n v. Waldman, 73 F.3d 509, 512 (3d Cir. 1995) (quoting Merchant & Evans, Inc. v. Roosevelt Bldg. Prods., 963 F.2d 628, 932-33 (3d Cir. 1992)). Plaintiff has failed to provide any evidence to demonstrate that he has suffered any actual injury from the removable of medication from his cell or the medical treatment that he subsequently received under the supervision of DCC's medical staff. 20. Lastly, the Plaintiff does not consider the effect of the injunction on other

interested persons as well as the public interest in general. Id.

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CONCLUSION

Based on the reasons set forth above, Warden Carroll contends that the Plaintiff has not demonstrated an adequate showing to warrant the extraordinary relief that he is requesting. Therefore, respondent respectfully requests the Court deny Plaintiff's motion for injunctive relief.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Ophelia M. Waters Ophelia M. Waters, I.D. No. 3879 Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302) 577-8400 [email protected] Attorney for State Defendants DATE: May 14, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM H. BOOZE, IV, ) ) Plaintiff, ) ) v. ) ) CORRECTIONAL MEDICAL SERVICES, ) INC., et al, ) ) ) Defendants. )

C.A. No. 07-82-GMS

ORDER AND NOW, this day of , 2007, upon consideration of

plaintiff's Motion for Injunction and the Response of Warden Thomas Carroll and Correctional Medical Services, IT IS HEREBY ORDERED that plaintiff's Motion for Injunction is DENIED.

_______________________________ United States District Judge

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CERTIFICATE OF SERVICE I hereby certify that on May 14, 2007, I electronically filed State Defendants' Answer in Opposition to Plaintiff's Application for Injunctive Relief with the Clerk of Court using CM/ECF. I hereby certify that on May 14, 2007, I have mailed by United States Postal Service, the document to the following non-registered participant: William H. Booze, Inmate SBI # 00256158 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 Megan T. Mantzavinos, Esq. Marks, O'Neill, O'Brien & Courtney, P.C. 913 North Market Street, Suite 800 Wilmington, DE 19801

/s/ Ophelia M. Waters Deputy Attorney General Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]

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