Kenneth R. Abraham v. Delaware Department of Corrections

BLD-194 NOT PRECEDENTIAL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)

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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 1 st 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

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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

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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

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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.

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