“The record . . . demonstrates that [plaintiff's] liver cirrhosis is being continuously monitored and treated with no indication that the condition places him in danger of immediate irreparable harm”
How later courts described this case
- “The record . . . demonstrates that [plaintiff's] liver cirrhosis is being continuously monitored and treated with no indication that the condition places him in danger of immediate irreparable harm”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
OMAR S. FOLK, No. 3:18-cv-02252
Plaintiff, | (Judge Mariani)
BUREAU OF PRISONS, et al. FILED
Defend | SCRANTON
efendants.
SEP 26 2019
MEMORANDUM a_i
Pen PUTY CLERK
September 2¢, 2019
Introduction
Omar S. Folk, currently a federal inmate, filed this civil rights complaint in November
2018—which he subsequently amended—alleging that numerous individuals violated his
constitutional rights by providing inadequate medical treatment, and by retaliating against him
for filing grievances related to that inadequate medical treatment.’ (Docs. 1, 7). Currently
pending before the Court are several of Folk's motions, including motions for injunctive relief
to compel certain actions. (Docs. 24, 26, 33, 34, 45, 46).
il. Discussion
A. Preliminary Injunction
1 Folk has filed a proposed second amended complaint that adds numerous defendants and factual
allegations. (Doc. 30).
Folk has filed two motions for injunctive relief, along with supporting memoranda.
(Docs. 33, 39, 46, 47). In his first motion for injunctive relief, Folk asserts that, during a pat
down, CO Gentzyel grabbed Folk’s swollen leg, causing discomfort. (Doc. 33 at 2). In the
memorandum in support of a preliminary injunction, Folk asserts that he has lost
approximately thirty pounds as a result of kidney issues and a bacterial infection, and
therefore must be examined by an outside doctor. In his most recent motion, Folk asserts
that Gentzyel conducted a strip search because Folk appeared suspicious, and Lieutenant
Cain opened Folk’s legal mail. (Doc. 46). In his supporting brief, Folk reiterates that Gentzyel
grabbed Folk’s swollen leg and that, when he complained of this, another officer stated that
Folk would need to take off his knee brace in the future if he did not want Gentzyel to conduct
a pat down search. (Doc. 47 at 1-2). Folk also complains of unspecified harassment
regarding his legal mail and asserts that he must see an outside specialist because it is
unclear if allergies caused his bacterial infection. (/d. at 3, 5-6).
A preliminary injunction is an “extraordinary remedy” that will not be granted “unless
the movant, by a clear showing, carries the burden of persuasion.” Holland v. Rosen, 895
F.3d 272, 285 (3d Cir.) (internal quotation marks omitted), cert. denied, 139 S. Ct. 440 (2018).
To determine whether Folk has met his burden, the Court must review
four factors: (1) a reasonable likelihood of success on the merits; (2) irreparable □
harm to the applicant; (3) whether the denial of a preliminary injunction would
injure the moving party more than the issuance of an injunction would harm the
non-moving party; and (4) whether the grant of relief would serve the public
interest.
Id. at 286-87.
“The first two factors are prerequisites for a movant to prevail.” /d. at 287. “To
establish irreparable harm, a stay movant must demonstrate an injury that is neither remote
nor speculative, but actual and imminent.” In re Revel AC, inc., 802 F.3d 558, 571 (3d Cir.
2015) (internal quotation marks omitted). “Furthermore, a prisoner's request for injunctive
relief must be viewed with great caution because of the intractable problems of prison
administration.” Milhouse v. Fasciana, 721 F. App’x 109, 111 (3d Cir. 2018) (internal
quotation marks omitted).
The Court concludes that Folk’s requests for injunctive relief fail because he has not
demonstrated imminent, irreparable harm. As to Folk’s first motion, Folk notes a single
incident in which Gentzyel—during a pat down—squeezed Folk’s swollen leg, causing
“discomfort.” (Doc. 33 at 1; see Doc. 47 at 1). There is no indication that Gentzyel continues
to squeeze Folk’s leg, or that the discomfort Folk experienced resulted in irreparable harm.
Given the limit nature of this event, there is also no indication that Folk’s injury “could not be
remedied [through monetary damages] following a final determination on the merits of his
claims in the District Court.” Rivera v. Pennsylvania Dep't of Corr., 346 F. App’x 749, 750 (3d
Cir. 2009). Similarly, Folk alleges that Gentzyel conducted a single strip search in August
2019 (Doc. 46 at 2) and, because Folk has not alleged that such searches are ongoing, he
3 .
fails to demonstrate irreparable harm, rather than an injury that may be remedied through an
award of damages.
As to Folk’s allegations regarding Defendants’ failure to refer Folk to outside medical
professionals, Folk asserts that he has kidney issues that have been “ongoing for years,” that
he began suffering from a bacterial infection in August 2018, and that he has lost thirty pounds
within the past year. (Doc. 39 at 2). However, Folk’s complaints make clear that he has
received ongoing treatment for his kidney issues and for the bacterial infection—treatment
that includes multiple forms of antibiotics. (See Doc. 7 at 4-5; Doc. 30 at 5-12). Moreover,
Folk cannot concretely connect his infection with any alleged dietary issues or allergies, and
he acknowledges that he “do[es] not know if this allergic reaction is stemming from [his}
food|].” (Doc. 47 at 6).
The speculative nature of a possible connection between Folk’s infection and potential
allergic reactions undercuts any notion that Folk will suffer irreparable harm unless he is seen
by an outside medical professional. Moreover, given the duration of Folk’s medical issues
and the continuous treatment and monitoring those issues, the Court cannot conclude that
he has made a “clear showing” that that he is in danger of irreparable harm, particularly since
he provides no evidence connecting his weight loss to his allergies, infection, or kidney issues.
Holland, 895 F.3d at 285. See Milhouse, 721 F. App’x at 111 (affirming conclusion that
plaintiff failed to demonstrate irreparable harm because he received “medications and
frequent encounters with medical personnel”); Rush v. Corr. Med. Servs., Inc., 287 F. App’x
142, 144 (3d Cir. 2008) (“The record . . . demonstrates that [plaintiff's] liver cirrhosis is being
continuously monitored and treated with no indication that the condition places him in danger
of immediate irreparable harm”); Lasane v. Campos, No. CV-17-6316, 2019 WL 959703, at
*6 (D.N.J. Feb. 27, 2019) (denying injunctive relief because medical complaints began “more
than two years before” motion was filed, undermining assertion that “immediate failure to be
seen by [outside medical professional] will result in irreparable harm to Plaintiff’).
Finally, with regard to issues surrounding Folk’s legal mail (Doc. 46 at 2; Doc. 47 at
3), which he asserts violates his First Amendment rights, Folk has not established—or even
alleged—that any actions “hindered [Folk] in an effort to pursue a nonfrivolous legal claim,”
Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006), or resulted in “the loss or rejection of a
legal claim.” Offver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997). Because actual injury is
required to pursue a First Amendment access-to-the-courts claim, Folk has not demonstrated
a reasonable likelihood of success on the merits of any such claim, and injunctive relief is not
appropriate. As Folk has failed to establish the necessary conditions for a preliminary
injunction, his motions will be denied.
B. Remaining Motions
Finally, Folk has filed various other motions, including a motion to address special
mail, a motion to compel service, a motion to compel Defendants to provide Folk with a copy
of all Bureau of Prisons regulations, and a motion for a status update. (Docs. 24, 26, 34, 45).
These motions were filed on or before August 20, 2019.
With limited exceptions not applicable here,? this Court’s Local Rule 7.5 requires that
parties file a brief in support of a motion within fourteen days of the date that the motion is
filed. Local Rule 7.5 explicitly warns that “{ijf a supporting brief is not filed within the time
provided in this rule the motion shall be deemed to be withdrawn.” Folk has not filed
supporting briefs for the aforementioned motions, and those motions are therefore deemed
withdrawn.
Ill. Conclusion
For the foregoing reasons, Folk’s pending motions will be denied. An appropriate
order will follow.
BY THE-COU RT:
United States District Judge
2 Briefs are not required in support of a motion for an enlargement of time or appointment of counsel, or if
all parties concur in the motion. L.R. 7.5.