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


6-16-2009

Nazario Burgos v. Mary Canino
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1043




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ALD-205 AMENDED                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 09-1043
                                 _____________

                             NAZARIO BURGOS,
                                     Appellant

                                        v.

           MARY CANINO; MARSHALL, CORRECTION OFFICER;
     DAY, LIEUTENANT; LEVI HOSBAND; TONY WOLFE; CUDDEBACK,
 CORRECTION OFFICER; DAVID DIGUGLIELMO; CORRETTE, CORRECTION
OFFICER; LIEUTENANT DOYLE; LIEUTENANT SMITH; CORRECTION OFFICER
         CHO; CORRECTION OFFICER BARRATA; SCOTT DAVIES
                ____________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                        (D.C. Civil No. 2-06-cv-02497)
                   District Judge: Honorable Anita B. Brody
                  ____________________________________

      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
                                  June 4, 2009
         Before: SLOVITER, FUENTES AND JORDAN, Circuit Judges

                         (Opinion filed: June 15, 2009)
                                  _________

                                   OPINION
                                   _________

PER CURIAM
       Nazario Burgos appeals from the District Court’s December 16, 2008 order

denying his motion for a preliminary injunction. Because we determine that the appeal is

lacking in arguable legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B). His

request for the appointment of counsel will be denied as moot.

       Burgos, an inmate at the State Correctional Institute at Graterford, Pennsylvania,

proceeding pro se, filed a motion for a temporary restraining order and preliminary

injunction in June 2008, requesting the District Court compel prison officials to transfer

him from Housing Unit F back to Housing Unit D. Burgos argued that officials moved

him in retaliation for filing a lawsuit, and that his life was in danger because Unit F also

houses dangerous inmates with mental disabilities. Burgos also asked that the Court grant

him access to his legal materials. The District Court held a hearing on the motion, at

which Intelligence Captain Thomas Dohman testified that prison officials moved Burgos

to a different unit after receiving an anonymous threat on his life. It was presumed that

this threat came from one of the prisoners in Burgos’ former unit. Dohman also testified

that Housing Unit F was no more dangerous than Housing Unit D. After the hearing, the

District Court denied Burgos’ motion, finding the testimony of Dohman credible and that

Burgos had failed to satisfy the criteria for the grant of a preliminary injunction. The

court granted his request for access to his legal materials. Burgos then filed a timely

appeal as well as a motion to proceed in forma pauperis. In his brief to this Court, he also

requests the appointment of appellate counsel.



                                              2
       We have appellate jurisdiction under 28 U.S.C. § 1292(a)(1).1 We review the

grant or denial of a preliminary injunction for abuse of discretion. Questions of law are

reviewed de novo, while questions of fact are reviewed for clear error. Adams v.

Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir. 2000) (citing Frank Russell Co. v.

Wellington Mgmt. Co., 154 F.3d 97, 101 (3d Cir.1998)). We also review the appeal for

possible dismissal under 28 U.S.C. § 1915(e)(2)(B). An appeal must be dismissed under

28 U.S.C. § 1915(e)(2)(B) if it has no arguable basis in law or fact. Neitzke v. Williams,

490 U.S. 319, 325 (1989).

       A preliminary injunction is “an extraordinary remedy that should be granted 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.” NutraSweet Co. v.

Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). After reviewing the record, we

agree with the District Court that Burgos did not satisfy the criteria for the grant of a

preliminary injunction. Captain Dohman testified that Burgos was moved from his unit,

not out of retaliation for the filing of a lawsuit, but in order to protect him from a threat

  1
   While Burgos captioned his motion as “Plaintiff’s motion for temporary restraining
order and preliminary injunction,” he focused only on the preliminary injunction
requirements in the motion itself. As a general proposition, orders granting or denying
temporary restraining orders are unappealable. NutraSweet Co. v. Vit-Mar Enters., Inc.,
112 F.3d 689, 692 (3d Cir. 1997). Here, however, the District Court properly treated
Burgos’ motion as a request for a preliminary injunction, and we have jurisdiction to
review the decision denying it.


                                               3
they had received against his life.2 Dohman also testified that the unit they moved Burgos

to is newer, contains fewer inmates, has more security protections in place, and fewer

inmates suffering from mental health issues than his former unit. The District Court

found Dohman credible and concluded that Burgos “failed to prove that denying his

motion will cause irreparable harm.” We agree with the District Court’s assessment. See

Fed. R. Civ. P. 52(a)(6) (stating that findings of fact “must not be set aside unless clearly

erroneous, and the reviewing court must give due regard to the trial court’s opportunity to

judge the witnesses’ credibility.”). We also note that courts “must accord substantial

deference to the professional judgment of prison administrators, who bear a significant

responsibility for defining the legitimate goals of a corrections system and for

determining the most appropriate means to accomplish them.” Overton v. Bazzetta, 539

U.S. 126, 132 (2003). As a result, we conclude that Burgos’ appeal does not have

arguable legal merit, and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). His

request for the appointment of counsel is denied as moot.




  2
    Burgos argues in his brief that it was improper for the District Court to rely on
Dohman’s testimony because it contained hearsay in the form of the anonymous note. A
review of the record shows that the Court never accepted the note into evidence because
of a prison policy that such threats are never shown to inmates out of a concern that they
could recognize the handwriting and attempt to retaliate. “[W]hen a challenged
regulation implicates security . . . judicial deference is especially appropriate.” Williams
v. Morton, 343 F.3d 212, 218 (3d Cir. 2003). As a result, we do not find that the Court
improperly relied upon hearsay evidence in reaching its conclusion.
