Free Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JIMMIE LEWIS, Plaintiff, v. THOMAS L. CARROLL, et al. Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 06-778-GMS Jury Trial Requested

STATE DEFENDANT THOMAS CARROLL'S JOINDER IN MEDICAL DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S AMENDED MOTION FOR PRELIMINARY INJUNCTION AND RESPONSE IN OPPOSITION TO PLAINTIFF'S SECOND MOTION FOR A PRELIMINARY INJUNCTION [RE: D.I. 60 & 61] COMES NOW, State Defendant Thomas Carroll1 ("State Defendant Carroll"), by and through his undersigned counsel, and hereby joins in Defendants Anthony Cannuli, M.D., John Durst, M.D., Dale Rogers, M.D., and Mary Snider, R.N.'s Opposition to Plaintiff's Amended Motion for Preliminary Injunction (D.I. 63) and incorporates herein by reference the facts as stated by the medical defendants as it relates to the medical care and mental health treatment the Plaintiff is receiving. In addition, State Defendant

Carroll responds in opposition (the "Response") to the non-medical claims in Plaintiff's Second Motion for Injunctive Relief (D.I. 60 & 61) as follows:

State Defendant Carroll is the only State Defendant who has entered an appearance in this matter. The other State Defendants who have been served with the Complaint have not entered their appearance in light of the stay ordered by the Court.

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1.

Plaintiff Jimmie Lewis ("Lewis" or "Plaintiff") is an inmate presently

incarcerated at the Delaware Correctional Center ("DCC") in Smyrna, Delaware. He is appearing pro se in this matter with leave to proceed in forma pauperis. 2. On December 20, 2006, Lewis filed a complaint and a statement of facts

against numerous defendants, including State Defendant Carroll, alleging that the defendants violated a number of his constitutional rights (the "Complaint") (D.I. 2, 4). 3. Prior to serving the defendants with the Complaint, on April 13, 2007,

Lewis filed with the Court his Motion for Order to Compel Defendant Thomas L. Carrol [sic] to Place Plaintiff Jimmie Lewis into Protective Custody (the "First Motion for Injunctive Relief"). (D.I. 10). State Defendant Carroll responded in opposition to the First Motion for Injunctive Relief on May 11, 2007. (D.I. 25). The Court denied Lewis's First Motion for Injunctive Relief on June 18, 2007. (D.I. 34). 4. On July 10, 2007, the Court entered an order referring Plaintiff's case to

the Federal Civil Panel for representation. (D.I. 40). The Court also ordered the case stayed pending the referral and instructed the parties not to file any pleadings during the pendency of the stay. (Id.). 5. On or about June 6, 2007, Lewis was transferred, for the second time, to

the Delaware Psychiatric Center ("DPC") for psychological testing and evaluation. Doctors at DPC diagnosed Lewis with Malingering and Antisocial Personality Disorder. (Exhibit A). He was considered a "manipulative patient" and "[h]is history suggest[ed] that he has invoked the issue of mental illness in the past to gain an advantage." (Id.). Moreover, Lewis was deemed a danger because he is "capable of manipulative action in

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order to achieve a desired result." (Id.). Psychological testing revealed that Lewis was "feigning or exaggerating psychotic symptoms." (Id.). 6. Six months following his admission into DPC, on December 14, 2007,

Lewis was transferred back to the DCC. Upon his return to prison, in accordance with instructions from DPC, Lewis was immediately admitted into the Infirmary. (Exhibit B). Lewis was uncooperative at the time of his admission and refused to allow the intake nurse to examine him. (Exhibit C). Lewis, however, did not complain of any injuries. (Id.). 7. On December 15, 2007, mental health staff interviewed and observed

Lewis. The staff person noted that he believed Lewis "would do anything at this point" to get himself back to DPC. (Exhibit D). 8. Shortly after his arrival at DCC, Lewis began to display his manipulative,

antisocial behavior. On January 14, 2008, Lewis was seen "wiping feces on the walls of his cell." (Exhibit E). Lewis was given a write up for the incident on charges of disorderly or threatening behavior, creating a health, safety or fire hazard, and failing to obey an order. (Id.). He later pled guilty to the charges and received 15 days in isolated confinement. (Id.). 9. Less than one month later, on February 9, 2008, two officers were

conducting security checks on Lewis's tier. As they approached Lewis's cell, Lewis got off his bed and came "to the door masturbating". (Exhibit F). Lewis was given a write up for indecent exposure and disrespect. (Id.). The indecent exposure charge was later changed to sexual misconduct and Lewis was sanctioned to 15 days in isolated confinement. (Id.).

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10.

On February 26, 2008, Lewis's deviant behavior escalated.

At

approximately 10:50 p.m., Lewis began to state that he was depressed and having suicidal thoughts. (Exhibit G). Sergeant Walter Dymowski went to Lewis's cell and informed him that he was going to call the nurse. Lewis stated that "she could not do anything for him and he did not want to talk to her." (Id.). Sergeant Dymowski then went to call a lieutenant and, as he was doing so, noticed Lewis grab a bed sheet and take it towards the window in his cell. Sergeant Dymowski then ordered two officers to observe Lewis in his cell. (Id.). Lewis was removed from his cell and taken to a holding cell in Building 20 and seen by a nurse. (Id.). The nurse interviewed Lewis and contacted the mental health staff. (Id.). A few hours later, on the early morning of February 27, 2008, Lewis was moved to an interview room on the D Tier in Building 17 and put on Suicide Watch. (Exhibit H). 11. At approximately 8:55 a.m. on the morning of February 27, mental health

staff came to Building 17, cleared Lewis and told correctional officers to place Lewis back in his cell on the A Tier of Building 17. (Exhibit I). Officers then removed Lewis from the D-Tier Interview Room and placed him in his cell on the A Tier. Less than three hours later, at approximately 11:25 a.m., Lewis started flooding his cell and parts of the tier by placing something down the toilet in his cell. (Id.). Fifteen minutes later, water came pouring out of the cell and Lewis began hitting the glass panel on his cell door. Lewis shattered the cell door window, ripped the sink off the cell wall and smeared feces in his cell. (Id.). Lewis was immediately transferred from Building 17 to Building 20 where he was evaluated by medical staff. (Exhibit J). The medical staff cleared Lewis to go to administrative segregation and officers then escorted Lewis to the C Tier

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of Building 18 ­ administrative segregation. (Id.). Lewis received a write up for the incident and was sanctioned to 15 days in isolated confinement and loss of 50 good time days. (Exhibit K). 12. On March 12, 2008, Lewis was transferred out of administrative

segregation to the A Tier of Building 17. (Exhibit B). Lewis is still incarcerated on this tier. (Id.). 13. Less than three months after his arrival at DCC, Lewis filed the Second

Motion for Preliminary Injunction. (D.I. 60 & 61). In the Second Motion Lewis makes three claims. First, Lewis asserts that he was "assaulted" by the officers that transported him from DPC to DCC. (D.I. 61 at ¶ 2). Second, he claims that on February 27, 2008 he was placed in a barbershop for 24 hours with handcuffs, shackles and a black box because "the plaintiff requested to be placed onto the protective custody unit." (D.I. 60 at ¶ 3). Finally, Lewis asserts his safety is in jeopardy because another inmate in a cell next to his was given a knife by an officer and "a DCC correctional officer was placed into SHU 18 C Lower 9 Cell." (D.I. 61 at ¶ 6, 7). 14. Despite Lewis's bald assertions, the record clearly shows that Lewis was

neither assaulted nor injured during his transport from DPC to DCC. Further, Lewis did not complain of any injuries upon his arrival at DCC. The evidence also shows that Lewis's constitutional rights have not been violated and his life has not been placed in jeopardy. In light of the facts of this case, Lewis's past manipulative behavior, and the statements made herein, the Second Motion for Injunctive Relief should be denied.

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15.

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). 16. The Third Circuit holds that 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). 17. To obtain a preliminary injunction Lewis must satisfy all four factors. If

he cannot prove that he has a likelihood of success on the merits of his claims 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. Lewis Cannot Satisfy His Burden For Injunctive Relief Because He Cannot Prove He Is Likely To Succeed On The Merits Of His Claims. 18. Lewis makes a number of allegations regarding the alleged treatment he Lewis's assertions are nothing more than

has received since his return to DCC.

fabrications and an attempt to be transferred back to DPC. Because Lewis has no support for his false claims, he is unlikely to succeed on the merits of his allegations and the Second Motion for Injunctive Relief should be denied.

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A. 19.

Lewis cannot satisfy his claim of excessive force where he was not assaulted or injured during the transport from DPC to DCC. Lewis first claims that the officers who transported him from DPC to DCC

used excessive force on him during the transport. To establish a claim for excessive force, a plaintiff must prove the existence of an "objective" element ­ that he was subjected to the unnecessary and wanton infliction of pain ­ and a "subjective" element ­ that the defendant had a culpable state of mind at the time of the alleged deprivation. Wilson v. Seiter, 501 U.S. 294, 298 (1991). 20. In this case Lewis cannot meet his burden of proof. The record shows that

almost two months after his arrival at DCC, Lewis, for the first time, filed a grievance alleging that he had been injured during the transport from DPC to DCC. (Exhibit L). Despite the fact that Lewis was transported on December 14, 2007, he lied and listed the date of the occurrence as February 2, 2008. (Id.). DCC officials conducted a thorough investigation into Lewis's allegations and found that Lewis appeared to be making a false claim because "the staff involved [in the transport] did not bring his personal property from DPC and [at the time of his transfer, Lewis] did not see a court order for him to be returned to DCC." (Id.). This is further supported by the fact that the first paragraph of Lewis's Motion does not state that he was assaulted by the transporting officers, but rather states that the officers "transfer[red] me back to the Del. Corr. Center `without an official court order stating that the Plaintiff's treatment their [sic] was complete, ....'" (D.I. 60 at ¶ 1). Thus Lewis lied about being assaulted because he was angry at being transported back to DCC. 21. Further, nothing in the record indicates that Lewis was ever injured or hurt

during the transport. When Lewis arrived at DCC he refused to allow medical staff to -7-

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evaluate him. (Exhibit C). Lewis never voiced any complaints to the medical staff nor did he claim that he had been assaulted or suffered an injury. (Id.). Thus there is no medical support for Lewis's claim of injury. 22. Lewis has no proof that he was subjected to the unnecessary and wanton

infliction of pain during his transport from DPC to DCC. Moreover Lewis cannot show that the transporting officers used force for the very purpose of causing harm. Therefore Lewis is unlikely to succeed on the merits of his excessive force claim and his request for injunctive relief with respect to this claim should be denied. B. Lewis cannot support an excessive force claim for the actions that occurred on February 27, 2008, where he cannot show that the restraints used on him were used for the purpose of causing harm. Lewis next claims that on February 27, 2008 he was handcuffed and

23.

shackled with the black box "for twenty four hours because the plaintiff requested to be placed onto the protective custody unit." (D.I. 60 at ¶ 3). As previously stated, to support a claim of excessive force an inmate must show that he was subject to the wanton and unnecessary infliction of pain. Wilson, 501 U.S. at 298. Lewis cannot meet this test. 24. The facts show that on February 26, 2008, Lewis informed guards that he

was depressed and was having suicidal thoughts. (Exhibit G). Officers immediately took action and contacted a lieutenant and a nurse on duty. (Id.). While the officers sought assistance, Lewis began fashioning a noose out of a bed sheet. Officers then removed Lewis from his cell and transported him to another cell where he was observed and interviewed by medical staff. (Id.). 25. The next day, after being cleared by the mental health staff, Lewis was

transferred back to his cell. While in his cell, Lewis placed something in the toilet and

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flooded his cell and parts of the tier. (Exhibit I). Lewis then shattered the glass on his cell door, ripped the sink from the cell wall and smeared feces throughout the cell. (Id.). After his tirade, Lewis was escorted to Building 20 where he was evaluated by medical staff. (Id.). Officers then took Lewis to administrative segregation ­ not the barbershop ­ where he was housed for 15 days as a result of his deviant behavior. (Id.). Nothing in the record shows that Lewis was handcuffed and shackled for 24 hours as a result of requesting placement in protective custody. 26. To the extent Lewis was restrained for 24 hours, the use of restraints was

not for the purpose of causing harm, but to restore order to an unruly inmate. Inmates who are a danger to themselves or others or who destroy state property are sometimes restrained for a period of time to prevent further harm or damage. In this instance, Lewis was spreading feces around his cell ­ a danger to the health of Lewis and others. In addition he had flooded his cell, broken the glass on his cell door window and ripped the sink from the cell wall. Thus, if restraints were used for 24 hours, the restraints was clearly necessary to restore order to an inmate who was causing harm to himself and others and was destroying state property. 27. Moreover, Lewis has not provided any proof that the restraints caused him

injury. Lewis's medical records show that medical and mental health staff evaluated him several times from February 26 to February 28. (Exhibit M). Nothing in these records, however, indicates that Lewis was harmed or injured as a result of being restrained. In fact, the records state that Lewis was "looking well" and had "no acute distress". (Id.). Moreover Lewis never filed a sick call slip stating that he suffered injury to his wrists or

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hands as a result of the use of restraints. Clearly Lewis has no evidence to support his claims. 28. The force used in this case was not malicious and sadistic for the very

purpose of causing harm. Rather the use of restraints was a direct result of the harmful, destructive acts of an inmate on a rampage. In light of the circumstances in which the restraints were used and considering that Lewis had no injuries as a result of the use of restraints, Lewis cannot support a claim for violation of his Eighth Amendment rights. Therefore the Second Motion for Injunctive Relief should be denied as to this claim. C. 29. DCC officials have not placed Lewis's life or safety in jeopardy. Finally, Lewis contends that Lieutenant Peter Forbes gave a knife or shank

to another inmate ­ Samuel Harris ­ who was transferred to administrative segregation and placed in the cell next to his. Lewis appears to allege that the item was given to Inmate Harris for the purpose of causing him harm. 30. Lieutenant Forbes never gave Inmate Harris a knife, shank or other tool

for the purpose of harming or killing Inmate Lewis. (Exhibit N at ¶ 5). Moreover, inmates in administrative segregation do not have any contact with one another; therefore Lewis was not in danger of being contacted or harmed by Inmate Harris. (Id. at ¶ 4). 31. Lewis never provides an explanation for why Lieutenant Forbes or Inmate

Harris would want to cause him harm. Lieutenant Forbes never had any direct interaction with Lewis prior to February 27, 2008. Therefore there is no reason to believe that Lieutenant Forbes would want to have Lewis harmed or killed. Lewis's assertions are nothing more than fabrications and conspiracy theories and he cannot succeed on the merits of his claim.

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32.

Given that Lewis cannot succeed on the merits of any of his claims, he

cannot satisfy the first factor for injunctive relief and this Court should deny the Second Motion for Injunctive Relief. II. Lewis Will Not Suffer Irreparable Injury If His Request For Injunctive Relief Is Denied. 33. Injunctions are not issued to eliminate a possibility of a remote future

injury. Id. Rather, an injunction is used 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). To demonstrate irreparable injury a plaintiff must prove "more than a risk of irreparable harm ...." Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir. 1980). 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). 34. Plaintiff cannot prove that he will suffer irreparable injury if his requests

for relief are denied. There is no evidence to support Lewis's allegations or to show that his life is in jeopardy. Further, Lewis is no longer incarcerated in administrative

segregation (See Exhibit B) and he has not shown that he will have any contact with Inmate Harris in the future. 35. The record shows that Lewis is a very manipulative individual. He has

lied, claimed to be psychotic, displayed deviant behavior, caused harm to others and even threatened to take his own life to get what he desires. Lewis's latest motion is filled with lies in an attempt to get a transfer back to DPC. Lewis cannot prove that he has suffered

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or will suffer harm at the hands of the defendants. Therefore his request should be denied. WHEREFORE, State Defendant Carroll respectfully requests that this Honorable Court deny Plaintiff's Second Motion for Injunctive Relief.

DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General Carvel State Office Building, 6th Floor 820 N. French Street Wilmington, DE 19801 (302) 577-8400 Attorney for State Defendant Thomas Carroll Dated: April 11, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JIMMIE LEWIS, Plaintiff, v. THOMAS L. CARROLL, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ORDER Upon the Plaintiff's Second Motion for Injunctive Relief (D.I. 60 & 61), and State Defendant Thomas Carroll's Joinder in Medical Defendants' Response in Opposition to Plaintiff's Amended Motion for Preliminary Injunction and Response in Opposition to Plaintiff's Second Motion for Injunctive Relief; and it appearing that good and sufficient notice of Plaintiff's Motion and State Defendant Carroll's Response has been given; and after due deliberation thereon: IT IS HEREBY ORDERED that Plaintiff's Motion is DENIED. SO ORDERED this _________ day of ______________, 2008. ____________________________________ The Honorable Gregory M. Sleet United States District Court Judge

Civil Action No. 06-778-GMS Jury Trial Requested

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CERTIFICATE OF SERVICE
I, Erika Y. Tross, Esq., hereby certify that on April 11, 2008, I caused a true and correct copy of the attached State Defendant Thomas Carroll's Joinder in Medical Defendants' Response in Opposition to Plaintiff's Amended Motion for Preliminary Injunction and Response in Opposition to Plaintiff's Second Motion for Injunctive Relief [Re: D.I. 60] to be served on the following individuals in the form and manner indicated: NAME AND ADDRESS OF RECIPIENT(S): Via First Class Mail Inmate Jimmie Lewis SBI # 506622 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 Via Electronic Delivery & First Class Mail James E. Drnec, Esq. Balick & Balick, LLC 711 King Street Wilmington, DE 19801

/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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