Frank Rivera v. Pennsylvania Department of Corrections

ALD-316 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2802
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FRANK RIVERA,
Appellant
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JEFFREY A. BEARD,
Secretary of Corr.; LOUIS S. FOLINO, Superintendent; CINDY G. WATSON, Chief
Grievance Officer; TIMOTHY I. MARK, Deputy Chief Counsel; DAN DAVIS,
Superintendent Assist.; JOSEPH DUPONT, Hearing Examiner; SGT. CONNER, Officer;
OFFICER PAHLER; OFFICER EAGLE; OFFICER GIFFORD; OFFICER TIBERI;
JOHN DOE #2, Officer; JOHN MCANAY, RNS; MICHELL LUKAS, Physician Assist.;
MICHAEL HICE, Clinic Contractor; KELLY GETTY, Nurse; JANE DOE, Nurse;
PROGRAM REVIEW COMMITTEE
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-08-01023)
District Judge: Honorable Terrence F. McVerry
____________________________________
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 IOP. 10.6
September 17, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: September 25, 2009 )
_________
OPINION
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Apparently, the policy excludes the following from being reported as abuse: 1)1
conditions of confinement; 2) claims of inadequate or intentionally denied medical care;
3) harassment or non-performance of duty by staff members. (Memorandum of Law in
Support of a Preliminary Injunction at 2.)
2
PER CURIAM
Frank Rivera, an inmate at the State Correctional Institution at Greene,
Pennsylvania, appeals the order of the District Court denying his motion for a preliminary
injunction. Because the appeal does not present a substantial question, we will summarily
affirm. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.
Rivera filed a civil rights complaint alleging that prison officials denied him
adequate medical treatment for a skin fungus and a digestive condition. Rivera sought to
enjoin the Department of Corrections from enforcing the “Resolution of Problems
Policy.” According to Rivera, this policy, which apparently involves the institution’s
grievance procedure, authorizes and encourages prison officials to violate his
constitutional rights. Specifically, Rivera complained that prison officials violated the1
Eighth Amendment by denying him adequate medical care and the First Amendment by
retaliating against him for filing prison grievances. Rivera also asserts that he was
assaulted by guards during a December 22, 2008 incident and denied mail service, a pair
of boots during winter and an outdoor exercise period. The Magistrate Judge issued a
Report recommending that the motion for preliminary injunction be denied for Rivera’s
failure to show a likelihood of success on the merits of his claims or irreparable harm.

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The District Court, over Rivera’s objections, adopted the Report and Recommendation
and denied the motion. Rivera filed a timely notice of appeal from that order.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1292(a)(1), and
“review the denial of a preliminary injunction for an abuse of discretion, an error of law,
or a clear mistake in the consideration of proof.” Kos Pharms., Inc. v. Andrx Corp., 369
F.3d 700, 708 (3d Cir. 2004) (internal quotations omitted).
To obtain the “extraordinary remedy” of a preliminary injunction, the moving party
must establish: “(1) a likelihood of success on the merits; 2) that [he] will suffer
irreparable harm if the injunction is denied; (3) that granting preliminary relief will not
result in even greater harm to the nonmoving party; and 4) that the public interest favors
such relief.” Id. Additionally, “a showing of irreparable harm is insufficient if the harm
will occur only in the indefinite future. Rather, the moving party must make a clear
showing of immediate irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d
86, 91 (3d Cir. 1992) (internal quotations omitted).
The District Court properly denied Rivera’s motion based on his failure to show
irreparable harm or a likelihood of success on the merits. Rivera asserts that prison
officials withheld his medicine for his upset stomach and his skin condition. The
grievance records Rivera submitted in support of his claim show that he received the
appropriate dosages of prescribed medications and that his grievances were found to be
meritless. Moreover, Rivera has not demonstrated that either of his illnesses is the type of

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serious medical condition which places him in danger of immediate harm. Rivera has
also not shown that he would likely be successful on the merits of his retaliation claims or
that the type of harm he would suffer would qualify him for a preliminary injunction. Nor
has he shown that any of his other complaints, including the assault by the prison guards,
could not be remedied following a final determination on the merits of his claims in the
District Court. See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250
(10th Cir. 2001).
Finally, Rivera cannot demonstrated that the prison’s grievance procedure is
inadequate or unconstitutional inasmuch as a prisoner has no constitutional right to a
grievance procedure. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (per curiam).
In any case, the only evidence Rivera provided regarding the unconstitutionality of the
prison’s procedures is the denial of his numerous grievances. Accordingly, Rivera has
not established the elements necessary for the issuance of a preliminary injunction on this
ground.
For the foregoing reasons, we will summarily affirm the order of the District
Court. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6. Rivera’s motion to exceed the five-
page limit in his memorandum of law is granted, and we have considered his
memorandum in reaching our decision.

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