Free Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DONALD BOYER, AMIR FATIR, and WARREN WYANT, Plaintiffs, v. COMMISSIONER STANELY TAYLOR, et al., Defendants. ) ) ) ) ) ) ) ) ) )

C.A. No. 06-694-GMS Jury Trial Requested

STATE DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER AND/OR A PRELIMINARY INJUNCTION TO PROHIBIT RESTRICTION TO TWO BOOKS [RE: D.I. 136] COMES NOW, State Defendants Thomas Carroll, Ronald Hosterman, David Pierce, Jeanette Havel, Janice Henry, Michael Little, Floyd Dixon, Marvin Creasy, James Satterfield, Maureen Whelan, Ralph Bailey, and David Hall (the "State Defendants"), by and through their undersigned counsel, and hereby respond in opposition (the "Response") to Plaintiffs' Motion for a Temporary Restraining Order and/or a Preliminary Injunction to Prohibit Restriction to Two Books (the "Motion to Prohibit Restriction") (D.I. 136). State Defendants assert that the Court should deny Plaintiffs' Motion because the Motion is moot as Plaintiff Fatir has received the books he claims were withheld and because Plaintiffs cannot show that they are likely to succeed on the merits of their claim or that they will suffer irreparable injury if the Motion is denied. In support of the Response, State Defendants state as follows: 1. Plaintiffs Donald Boyer, Amir Fatir, and Warren Wyant (the "Plaintiffs")

are all inmates presently incarcerated at the Delaware Correctional Center ("DCC") in

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Smyrna, Delaware. Plaintiffs are appearing pro se in this matter with leave to proceed in forma pauperis. 2. On November 15, 2006, Plaintiffs, along with nine (9) other individuals

who have since been dismissed from the case, filed a Complaint against 25 Defendants alleging various claims. (D.I. 10). 3. Less than two months later, on January 5, 2007, Plaintiff Boyer filed the

First Amended Complaint against all of the defendants adding new claims and allegations. (D.I. 18). On July 30, 2007, Plaintiffs filed a Second Amended Complaint further refining their allegations and claims against the defendants. (D.I. 43). The Court entered an order reviewing and screening the Second Amended Complaint on January 14, 2008. (D.I. 65). Following the review, 20 counts of Plaintiffs' Complaints remained against the State Defendants. On March 20, 2008, the State Defendants filed an Answer to the remaining claims. (D.I. 104). 4. Following the filing of their Second Amended Complaint, the Plaintiffs,

led by Plaintiff Fatir, filed a series of five motions requesting injunctive relief for various issues. State Defendants filed a response in opposition to each of the five motions. The Court denied all five of the Plaintiffs' motions in an order dated March 28, 2008. (D.I. 112). 5. Less than one month following the Court's decision, on April 21, 2008,

the Plaintiffs, again led by Plaintiff Fatir, filed another motion for injunctive relief claiming that Fatir was being denied the right to receive certain books (the "Motion to Receive Books") (D.I. 118). In the Motion to Receive Books, Plaintiff Fatir claimed that this Court should grant him injunctive relief because the DCC has "prevented [him] from

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receiving the following publications: The Catcher in the Rye, Natural Cures They Don't Want You to Know About, Ishmael, The Multi-Orgasmic Woman and Shakti: the Feminine Power of Yoga." (D.I. 112 at ¶ 1). The State Defendants filed a response in opposition to the Motion to Receive Books on May 8, 2008. (D.I. 125). The Court has not yet ruled on the Motion to Receive Books. 6. On June 23, 2008, Fatir filed the Motion to Prohibit Restriction. (D.I.

136). In the Motion to Prohibit Restriction Fatir claims the Court should grant him injunctive relief because the DCC withheld from him the book Understanding the Black Woman ­ one of three books sent to him by Khabooks.com. Plaintiff Fatir further asserts that the actions of the Defendants are "draconian and serve no legitimate penological interest other than to keep prisoners ignorant and incapable of legally challenging their mistreatment at the hands of their jailers." (Motion to Prohibit Restriction at ¶ 7). 7. Four days after the motion was filed, on June 27, 2008, personnel at DCC

realized that there was an error in the mailroom regarding the prohibited mail notice sent to Fatir for his third book. As a result Fatir was issued his third book. (Exhibit A). Fatir signed for receipt of this third book ­ Understanding the Black Woman ­ on June 27, 2008. (Id.). I. Fatir's Claims Are Moot Now That He Has Received His Book. 8. This Court should deny Plaintiffs' request for injunctive relief because the

issue is now moot. "`[A] case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome.'" City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (internal citations omitted). A court should not render a decision on the merits of a claim that is moot because "it becomes impossible for the

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court to grant `any effectual relief whatever' to [the] prevailing party." Id. (internal citations omitted). 9. In the Motion to Prohibit Restriction Plaintiffs claim that Fatir has been

unjustly denied the book Understanding the Black Woman which was sent to him by Khabooks.com. A misunderstanding occurred in the mailroom at DCC which resulted in Fatir being denied the third book. After the error was corrected the mailroom notified Fatir that he was entitled to receive the third book. On June 27, 2008, Fatir received the book Understanding the Black Woman. (Exhibit A). Therefore Fatir no longer has a live issue and his request for injunctive relief is moot. II. Plaintiffs' Request For Injunctive Relief Should Be Denied Because They Cannot Satisfy The Factors For Injunctive Relief. 10. Assuming, arguendo, that Fatir's claim is not moot, this Court should still

deny the Plaintiffs' Motion because they cannot satisfy the factors for injunctive relief. 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). 11. The Third Circuit holds that a district court should grant a request for a

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).

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12.

To obtain a preliminary injunction Plaintiffs must satisfy all four factors.

If they cannot prove that they have a likelihood of success on the merits of their claim or that they are likely to suffer irreparable injury, the request for preliminary injunction should be denied. See Instant Air, 882 F.2d at 800. 13. State Defendants assert that the DCC's policy regarding the limitation on

the number of books an inmate is allowed in his cell does not violate the Plaintiffs' First Amendment rights. Therefore the Plaintiffs are not likely to succeed on the merits of their claims. Moreover, the Plaintiffs will not suffer irreparable injury if they are not immediately granted the ability to receive more than three books in their cell. For these reasons the Court should deny the Plaintiffs' Motion. A. Plaintiffs cannot succeed on the merits of their claim because the three book rule satisfies the Turner test and does not violate their constitutional rights. The first factor of the preliminary injunction test requires that the moving

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party show that he is likely to succeed on the merits of his claims. Maldonado, 157 F.3d at 184. To establish a valid claim under § 1983, a plaintiff must demonstrate that the defendants, while acting under color of state law, deprived him of a right secured by the Constitution or the laws of the United States. Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). 15. "`[C]onvicted prisoners do not forfeit all constitutional protections by

reason of their conviction and confinement in prison.'" O'Lone v. Shabazz, 482 U.S. 342, 348 (1987) (quoting Bell v. Wolfish, 441 U.S. 520, 545 (1979)). Included in the rights prisoners retain are the protections of the First Amendment. Id. But "`[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and

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rights, a retraction justified by the considerations underlying our penal system.'" Id. (quoting Price v. Johnston, 334 U.S. 266, 285 (1948)). Thus the Supreme Court has held that, "`when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'" Williams v. Morton, 343 F.3d 212, 216 (3d Cir. 2003) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). 16. To determine if a prison regulation is reasonably related to a legitimate

penological interest a court must weigh four factors: (1) whether there is a valid, rational connection between the prison regulation and a neutral and legitimate government interest; (2) whether there are alternative means of exercising the right in question; (3) the impact that accommodation of the asserted constitutional right would have on guards and other inmates; and (4) whether there are adequate alternatives to meet the prison's objectives. Jolly v. Snyder, 2003 WL 1697539, at *2 (D. Del. March 22, 2003) (citing Turner, 482 U.S. at 89-91) (Exhibit B). 17. DCC Housing Rules state that an inmate is allowed to have in his cell,

"Two personal or library magazines, three library or personal reading books (which may include Bible and/or Koran), and one newspaper that does not promote illegal activity." (Exhibit C at 7, ¶ 6b). The DCC has been advised by the Delaware State Fire Marshal to limit combustibles in the cells of inmates to protect the safety of the institution. (Exhibit D ­ "Hosterman Affidavit" at ¶ 3). Thus, the purpose of the limitation on the number of books and magazines within the cell is to prevent a fire and safety hazard and to protect the well being of the inmates housed within the institution. (Id.).

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18.

Clearly the first factor of the Turner test has been met ­ the DCC rule

limiting the number of books is related to the neutral and legitimate interest of preventing a fire and safety hazard to the institution and the inmates housed therein. 19. The second Turner factor is also satisfied. Although the Plaintiffs are

limited to a certain number of items in their cell they are allowed to have up to two magazines, three books and one newspaper. (Exhibit C). Moreover, the DCC library has over 7,000 books in circulation. (Exhibit E). Therefore, when Fatir is finished reading the three books currently in his cell, he is free to donate the books to the library or send them out and either check out new books or have new books mailed to him. (Hosterman Affidavit at ¶ 4). Therefore the Plaintiffs have a means of exercising their First Amendment rights. 20. Permitting inmates like Fatir to have more than the requisite number of

books could lead to other inmates also requesting an unlimited number of books. This would then lead to the fire and safety hazard that the Fire Marshal has warned DCC against. Thus the third factor of the Turner test is satisfied. 21. Finally, in considering the fourth Turner factor, the Court must determine

whether the plaintiff has proven "that an adequate alternative of reaching the prison's objective exists." Snyder, 2003 WL 1697539 at *5. In this case the Plaintiffs have not offered a single adequate alternative to the policy stating that inmates are limited to three books in their cell. Given that the Plaintiffs have not offered any adequate alternatives, the final Turner factor is met. 22. The policy used to restrict inmates to three books satisfies the Turner test

and does not violate the Plaintiffs' First Amendment rights. Therefore Plaintiffs are not

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likely to succeed on the merits of their claim and the Motion to Prohibit Restriction should be denied. II. Plaintiffs Cannot Prove They Will Suffer Future Irreparable Harm If Their Ability To Receive More Than Three Books Is Denied. 23. Aside from not satisfying the first factor for injunctive relief, Plaintiffs

also cannot show that they will suffer irreparable injury if the Motion is denied. 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) (emphasis added). 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). Moreover, 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). 24. Plaintiffs cannot show that they are in danger of suffering irreparable harm

if they are denied the ability to receive more than three books in their cell at one time. As previously demonstrated, the Plaintiffs are permitted to have two magazines, three books and one newspaper in their cell. Moreover, when they have finished the three books they have the opportunity to donate the books to the library and check out one of the more than 7,000 books the DCC has in circulation. Therefore Plaintiffs are being given the opportunity to read and will not suffer irreparable injury if they cannot have more than three books in their cell at one time. 25. Further, any irreparable harm Fatir claims he will suffer has been

eradicated now that he has received his third book.

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WHEREFORE, State Defendants respectfully request that this Honorable Court enter an Order, substantially in the form attached hereto, dismissing Plaintiffs' Motion to Prohibit Restriction. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302) 577-8400 Attorney for State Defendants Dated: July 8, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DONALD BOYER, AMIR FATIR, and WARREN WYANT, Plaintiffs, v. COMMISSIONER STANELY TAYLOR, et al., Defendants. ORDER Upon Plaintiffs' Motion for a Temporary Restraining Order and/or a Preliminary Injunction to Prohibit Restriction to Two Books (D.I. 136) (the "Motion"); and State Defendants' Response in Opposition to the Motion; and it appearing that good and sufficient notice of the Plaintiffs' Motion and the State Defendants' Response in Opposition has been given; and after due deliberation thereon: IT IS HEREBY ORDERED that the Motion is DENIED. SO ORDERED this _________ day of ______________, 2008. ) ) ) ) ) ) ) ) ) )

C.A. No. 06-694-GMS Jury Trial Requested

__________________________________________ The Honorable Gregory M. Sleet United States District Court Chief Judge

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CERTIFICATE OF SERVICE
I, Erika Y. Tross, Esq., hereby certify that on July 8, 2008, I caused a true and correct copy of the attached State Defendants' Response in Opposition to Plaintiffs' Motion for a Temporary Restraining Order and/or a Preliminary Injunction to Prohibit Restriction to Two Books [Re: D.I. 136] to be served on the following individuals in the form and manner indicated: NAME AND ADDRESS OF RECIPIENT(S): Via First Class Mail Donald Boyer SBI # 082420 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 Amir Fatir SBI # 137010 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 Via Electronic Delivery James E. Drnec, Esq. Balick & Balick, LLC 711 King Street Wilmington, DE 19801 Warren Wyant SBI # 00176129 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/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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