                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2009

Kenneth Abraham v. Dept Corr DE
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4446




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Kenneth Abraham v. Dept Corr DE" (2009). 2009 Decisions. Paper 1165.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1165


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
BLD-194                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 08-4446


                             KENNETH R. ABRAHAM,
                                             Appellant

                                          v.

                 DELAWARE DEPARTMENT OF CORRECTIONS;
                     COMMISSIONER CARL C. DANBERG;
                          WARDEN PERRY PHELPS;
             RONNIE MOORE, Health Care Services Administrator DCC;
          DR. SPENCE, Master Counselor in the Greentree Treatment Program,
            ANY AND ALL OTHER DEPARTMENT OF CORRECTIONS
              STAFF ADMINISTERING THE GREENTREE PROGRAM
             AT ALL DEPARTMENT OF CORRECTIONS FACILITIES
             WHOSE NAMES AND TITLES SO FAR ARE UNKNOWN
                          TO KENNETH ABRAHAM


                    On Appeal from the United States District Court
                              for the District of Delaware
                           (D.C. Civil No. 1-08-cv-00452)
                     District Judge: Honorable Sue L. Robinson


      Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
      or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 May 21, 2009

              Before: McKEE, FISHER and CHAGARES, Circuit Judges

                                (Filed: June 19, 2009)
                                        OPINION


PER CURIAM

       Kenneth Abraham, an inmate at the James T. Vaughn Correctional Center, appeals

from an order by the District Court denying his petition for declaratory judgment and

injunctive relief. For the reasons that follow, we will summarily affirm.

       In May 2008, Abraham filed a petition for declaratory judgment and injunctive

relief and a motion for leave to proceed in forma pauperis. Abraham requested that the

GreenTree Program, a drug treatment program operated by the Department of

Corrections, be declared unlawful and unconstitutional. Abraham asserted that due to the

“gross inaction” of the Department of Corrections personnel, the GreenTree Program was

“incompetent, ineffective, and grossly mismanaged,” and that “the activities of the

inmates in charge [of the program] violate the 8th and 1st Amendments.” According to

Abraham, if an inmate participating in the GreenTree Program does not agree with the

inmates in charge, this may be construed as a failure to obey, which in turn could delay or

prevent completion of the program; and this, Abraham alleged, could lead to increased

incarceration. Abraham conceded, however, that he is not currently participating in the

GreenTree Program because he has been housed in SHU for a two-year term.

       Because Abraham was proceeding in forma pauperis, the District Court screened

his complaint pursuant to 28 U.S.C. § 1915A and determined that he failed to state a

claim upon which relief may be granted. The District Court determined that Abraham


                                             2
was not entitled to declaratory judgment or injunctive relief, that amending the complaint

would be futile, and that dismissal was appropriate pursuant to 28 U.S.C. § 1915(e)(2)(B)

and § 1915A (b)(1). Abraham timely appealed.

       We exercise plenary review over the District Court’s sua sponte dismissal under

§ 1915(e)(2)(B). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Upon

review, we conclude that the District Court properly dismissed Abraham’s petition, for

reasons given by the District Court.

       The Declaratory Judgment Act permits a federal court the discretion to “declare

the rights and other legal relations of any interested party seeking such declaration,” when

there is a “case of actual controversy.” 28 U.S.C. § 2201; see also Green v. Mansour, 474

U.S. 64, 72 (1985); Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643,

647 (3d Cir. 1990). A “case of actual controversy” means one of a justiciable nature.

Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 325 (1936). “The controversy must

be definite and concrete, touching the legal relations of parties having adverse legal

interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937).

       Abraham cannot show he is entitled to declaratory judgment because he has not

shown that an “actual controversy” exists. As the District Court noted, Abraham does not

present a controversy of justiciable nature. Prisoners have no constitutional right to drug

treatment or other rehabilitation. See Rhodes v. Chapman, 452 U.S. 337, 348, (1981)

(“Prisoners have no constitutional right to rehabilitation, education, or jobs”). Abraham’s

complaints over the alleged lack of content and mismanagement of the GreenTree

                                             3
Program do not provide a legal basis on which relief could be granted. His petition also

does not provide sufficient factual allegations that could entitle Abraham to relief based

on, for example, violations of the First and Eighth Amendments. Cf. Warner v. Orange

County Dep’t of Probation, 115 F.3d 1068, 1074-75 (2d Cir. 1997) (finding a first

amendment violation where a prisoner was required to participate in a drug or alcohol

rehabilitation program with a religious component); Kerr v. Farrey, 95 F.3d 472, 479 (7th

Cir. 1996); Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985) (to show an Eighth

Amendment violation, an inmate must show “a pervasive risk of harm to inmates from

other prisoners,” and that the prison officials have displayed “deliberate indifference” to

the danger [citations omitted]). Finally, because Abraham is not currently participating in

the GreenTree Program and merely speculates about what could happen to him once he is

allowed to participate in the future, he cannot show that an actual controversy exists

justifying declaratory relief. Aetna, 300 U.S. at 240-41.

       Abraham also cannot demonstrate that he is entitled to injunctive relief. “The

requisite for injunctive relief has been characterized as a “clear showing of immediate

irreparable injury,” or a “presently existing actual threat; (an injunction) may not be used

simply to eliminate a possibility of a remote future injury, or a future invasion of rights,

be those rights protected by statute or by the common law.” Continental Group, Inc. v.

Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir. 1980) (citing Ammond v. McGahn,

532 F.2d 325, 329 (3d Cir. 1976), Holiday Inns of America, Inc. v. B & B Corporation,

409 F.2d 614, 618 (3d Cir. 1969)). As stated above, Abraham cannot meet the requisites

                                              4
for injunctive relief because he has no right to drug treatment or rehabilitation programs.

Furthermore, given that he is currently housed in SHU and not participating in the

GreenTree Program, he cannot show any immediate irreparable injury or presently

existing actual threat. We agree with the District Court that it would have been futile to

allow Abraham to file an amended complaint.

       As Abraham’s appeal does not present a substantial question, we will summarily

affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

Appellant’s motions to expedite, for counsel, for summary action, and for an injunction

are denied. Appellee’s motion to summarily dismiss is also denied.




                                             5
