Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00791-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL L. JONES, ) ) Plaintiff, ) ) v. ) ) RAYNARD JONES and AUDREY EVANS,) ) Defendants. )

C.A. No. 07-791-GMS Jury Trial Demanded

DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION Defendant Raynard Jones ("Defendant"), by and through undersigned counsel, hereby opposes Plaintiff's Motion for Preliminary Injunction, D.I.4. In support of his position, Defendant states the following: 1. On December 6, 2007, Plaintiff Michael L. Jones ("Plaintiff"), an inmate

incarcerated at the James T. Vaughn Correctional Institution in Smyrna, Delaware ("JTVCC") filed a handwritten document in U.S. District Court for injunctive relief. D.I.4. 2. Plaintiff alleges that the Defendant tampered with his breakfast on several

occasions in the Security Housing Unit ("SHU") by supposedly "putting stuff in plaintiffs food trays." Id. He claims that District Court intervention is necessary because "nothing has been done to stop this abuse by [Defendant]." Id. 3. The purpose of injunctive relief is to address a presently existing threat.

Fed.R.Civ.P.65(b). See also 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). Any request for injunctive relief must demonstrate that the threatened harm is immediate.

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4.

As a preliminary matter, Plaintiff is no longer housed in the SHU. Thus, he no

longer interacts with the Defendant, or any of the SHU correctional staff he claims were complicit in the alleged food tampering. See Exhibit 1, Affidavit of Staff Lt. Karen Hawkins. This fact renders Plaintiff's request for preliminary injunction as moot. 5. Moreover, the alleged threat described in D.I.4 was never immediate, as required

by Fed. R. Civ. P. 65(a). Plaintiff writes that the food tampering began in March 2007, yet he waited 6 months to file his first grievance about the food (on August 27, 2007) and 9 months to file the motion for injunctive relief. D.I.4. An inmate faced with an immediate threat surely would have filed a grievance within 7 days of the first incident, as required by the DOC grievance policy. 6. With regard to the merits of Plaintiff's claim, Staff Lt. Karen Hawkins

investigated Plaintiff's complaints after he submitted his grievances. Id. These claims were not found to be credible. See Exhibit 1. Rather, the complaints were written in reaction to

Defendant's disciplinary write-up of Plaintiff on July 16, 2007. See Exhibit 2 ­ Incident Report #1043913. Plaintiff was found guilty of all charges on July 30, 2007. See Exhibit 3 ­

Disciplinary Hearing Decision. One week later, he told two correctional officers that Defendant "will pay for f*ing with me....I lost my job because of him." See Exhibit 4 ­ Incident Report #1044665. On August 13, 2007, Plaintiff's appeal of the disciplinary appeal was reviewed then denied. Afterwards, the complaints against Defendant ensued. 7. All of the individuals named on page 1 of Plaintiff's motion for preliminary

injunction (i.e., Thomas Carroll, David Pierce, David Holman, Karen Hawkins, Raynard Jones, Audrey Evans, Keshaw Travies, Larry Savage and Floyd Dixon) have a connection to Incident Report #1043913 and its subsequent hearing and appeal. This conforms to Plaintiff's promise 2

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that DOC staff "will pay" for taking action against him. See Exhibit 4. WHEREFORE, based upon the reasons set forth above, Defendant respectfully requests that the Court deny Plaintiff's application for injunctive relief.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Catherine Damavandi Damavandi_______ Catherine Damavandi (ID # 3823) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 [email protected] (302) 577-8400 Attorney for Defendant Raynard Jones

Date: August 28, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL L. JONES, ) ) Plaintiff, ) ) v. ) ) RAYNARD JONES and AUDREY EVANS,) ) Defendants. )

C.A. No. 07-791-GMS Jury Trial Demanded

CERTIFICATE OF SERVICE The undersigned certifies that on August 28, 2008, she caused the attached Defendant's Opposition to Plaintiff's Motion for Preliminary injunction to be delivered to the following person by first class mail, postage prepaid: Michael L. Jones SBI#417267 JTVCC 1181 Paddock Road Smyrna, DE 19977

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Catherine Damavandi Catherine Damavandi_______ Catherine Damavandi (ID # 3823) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 [email protected] (302) 577-8400 Attorney for Defendant Raynard Jones

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Incident# 1043913

Case

JTVCC James T. Vaughn Correctional Center 1:07-cv-00791-GMS Smyrna Landing Road Filed 08/28/2008 Document 19-3 SMYRNA DE, 19977 Phone#: 302-653-9261

Date: 08/28/2008

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INCIDENT REPORT
Group#: N/A Type: Inmate Involved Incident Date: 07/16/2007 Time: 13:41 Confidential: No Facility: JTVCC James T. Vaughn Correctional Center Associated Disciplinary Report #(s) 1033294 Incident Location: Bldg.17 D Tier Location Description: Delta Wing at Cell Lower 8 Violated Conditions: 2.01/200.105 Abuse of Privileges 2.06/200.108 Failing to Obey an Order 2.10/200.213 Lying 2.13/200.111 Possession of Non-Dangerous Contraband Description of Incident: On July 16th, 2007 at 134hrs., I Sgt. Raynard L. Jones and Cpl. Audrey Evans went on Delta Wing in Bldg.-17 for Phone Punch and area check. When I was leaving D-Wing I noticed that the tier-man Michael Jones SBI- 00417267 was trying to conceal 2packs of Ramen noodles and a milk in the window of yard 1 where he was secured. I asked him and quote," you are not getting ready to pass that are you"? Inmate Michael Jones replied, "No". After Cpl. Evans and myself exited D-Wing I went to the C&D flap and told the Pod officer Sgt. Keshaw Travies, " that Inmate Jones had 2 packs Ramen Noodles and a milk that I think he is going to pass after he gets out of the yard". I act like I was going on C-Wing and came back to D-Wings big window and saw Inmate Jones put the contraband under the door of Delta lower 8 where inmate Darrel Page # 00410556 lives. I immediately requested from Sgt. Branch a door bar and a set of handcuffs. I then entered D-Wing and went to cell Lower 8 for a shakedown, there I had to wake Inmate Page to tell him that we were there for a shakedown. Inmate Page got up and came to the door and when the door was opened the 2-packs of Ramen Noodles and 1 milk was laying on the floor by the small square opening at the bottom of the door. I asked Inmate Page, " was the 2-packs Ramen Noodles and 1-milk his?, and he said, " no". At that time I told inmate Page, " that I am taking the 2-packs of Ramen Noodles and 1 milk " and Inmate Page had no objection. I then ordered Inmate Jones to lock-in after we exit the tier and he will be written-up for passing contraband into Cell Lower 8. End-of-Report. Injured Persons Hospitalized Nature Of Injuries N/A Evidence Type: N/A Discovered By :N/A Type of Force Used [ ] Restraints Used PHYSICAL [] CHEMICAL [ ] Secured By:N/A STUN [ ] OTHER [] CAPSTUN [X] NONE N/A N/A Date Collected: N/A Followup Required : No

: N/A Immediate Action Taken: Notified Lt. James Satterfield of this write-up and wrote the necessary paperwork. Individuals Involved Person Code Name SBI# Staff Inmate Staff Staff Raynard, Jones L Michael, Jones L Audrey, Evans L Keshaw, Travies D N/A 00417267 N/A N/A

Title CO Corporal/Sgt. - Large Inst. N/A CO Corporal/Sgt. - Large Inst. Correctional Officer

Reporting Officer: Jones, Raynard L (Co Corporal/Sgt. - Large Inst.)

Entered By: Jones, Raynard L (Co Corporal/Sgt. - Large Inst.)

Approval Information X Approved Disapproved Date: 07/16/2007 Approved by: Satterfield, James P (Staff Lt./Lt)

Comments: mab

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DR# 1033294

Case

JTVCC James T. Vaughn Correctional Center 1:07-cv-00791-GMS Smyrna Landing Road Filed 08/28/2008 Document 19-4 SMYRNA DE, 19977 Phone No. 302-653-9261

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DISCIPLINARY HEARING DECISION
Inmate : Jones, Michael L Institution:JTVCC James T. Vaughn Correctional Center Inmate Present: Yes Reason(If No): N/A SBI#:00417267 Hearing Date: 07/30/2007 Type: Class 1 Time: 13:30

Violation: , 2.01/200.105 Abuse of Privileges, 2.06/200.108 Failing to Obey an Order, 2.10/200.213 Lying, 2.13/200.111 Possession of Non-Dangerous Contraband Inmate PLEA: Not Guilty Inmate Statement: It's retaliation for me writing him up. Witness Name: Evans, Audrey CPL. Testimony : N/A Decision :Guilty Rational : During confrontation inmate have any questions for Sgt Jones. Per report and Cpl Evans statement inmate passed contraband. Found guilty of all charges. Sanctions: N/A HEARING OFFICER'S SIGNATURE Savage, Larry I understand that I may appeal the decision of a Class II Hearing to the Class I Hearing Officer.I may appeal the decision of a Class I Hearing to the facility administrator.I also understand that I have 72 hours to submit my notice of appeal in writing to the Class I Hearing Officer if I am appealing a Class II Hearing decision or the Warden if I am appealing a Class I Hearing decision. I [X] DO [ ] DO NOT INTEND TO APPEAL INMATE's SIGNATURE

ORDER TO IMPLEMENT SANCTIONS
[X] [ ] Inmate does not wish to appeal Sanctions have been modified [ ] [ ] Appeal has been denied by Commissioner or Designate Time Limit(72 Hours since hearing) for appeal has expired

It is here by ordered to implement the sanctions: Sanctions 1. Confinement to Quarter Start Date 09/10/2007 Days 10 End Date 09/19/2007

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Incident# 1044665

Case

JTVCC James T. Vaughn Correctional Center 1:07-cv-00791-GMS Smyrna Landing Road Filed 08/28/2008 Document 19-5 SMYRNA DE, 19977 Phone#: 302-653-9261

Date: 08/28/2008

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INCIDENT REPORT
Group#: N/A Type: Inmate Involved Incident Date: 08/09/2007 Time: 20:12 Confidential: No Facility: JTVCC James T. Vaughn Correctional Center Incident Location: Bldg.17 Yard Location Description: Building 17 , yard 5 Violated Conditions: 1.06/200.203 Disorderly or Threatening Behavior Disrespect to staff. Making any personal threats to staff. Description of Incident: On the above date and time while conducting our tier check , I C/O Silva, Romeo and C/O Dittman, John were informed by I/M Jones, Michael SBI00417267 that "he was going to get sgt. Jones, whenever he gets a chance, he wiill pay for fucking with me". I C/O Silva asked I/M Jones what was the matter , and he stated " I lost my job because of him". Building sgt. and Area Lt. were advised of this situation. Sgt. Jones, Raynard was also informed of this matter. E.O.R. Injured Persons Hospitalized Nature Of Injuries N/A Evidence Type: N/A Discovered By :N/A Type of Force Used [ ] : N/A Immediate Action Taken: 404 written. Individuals Involved Person Code Staff Staff Inmate Romeo, Silva J John, Dittman E Michael, Jones L Name SBI# N/A N/A 00417267 Correctional Officer Correctional Officer N/A Title Restraints Used PHYSICAL [] CHEMICAL [ ] Secured By:N/A STUN [ ] OTHER [] CAPSTUN [X] NONE N/A N/A Date Collected: N/A Followup Required : No

Reporting Officer: Silva, Romeo J (Correctional Officer)

Entered By: Silva, Romeo J (Correctional Officer)

Approval Information X Approved Disapproved Date: 08/27/2007 Approved by: Forbes, Peter (Staff Lt./Lt)

Comments: N/A

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

) ) Plaintiff, ) ) v. ) ) RAYNARD JONES and AUDREY EVANS,) ) Defendants. ) ORDER

MICHAEL L. JONES,

C.A. No. 07-791-GMS Jury Trial Demanded

Upon the Plaintiff's Motion For Injunctive Relief (D.I.4), and Defendant Raynard Jones's Response In Opposition To Plaintiff's Motion For Injunctive Relief (D.I.19); and it appearing that good and sufficient notice of Plaintiff's Motion and Defendant's Response has been given; and after due deliberation thereon: IT IS HEREBY ORDERED that Plaintiff's Motion for Injunctive Relief is DENIED.

SO ORDERED this _________ day of ______________, 2008.

_________________________________ The Honorable Gregory M. Sleet United States District Court Judge