Gerard LOUIS, Appellant, v. Warden B.A. BLEDSOE; Associate Warden D. Young; Unit Manager D. Hollenbach.
No. 11-1571.
United States Court of Appeals, Third Circuit.
July 22, 2011.
129
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 12, 2011.
I concur in the court‘s opinion and judgment. I think it appropriate to add a few words.
After argument I was of the view that the BIA‘s order denying asylum to Bao Hui Chen was in error and that Chen‘s petition for review should be granted. The imposition on Chen of fines totaling nearly 21,000 RMB, the equivalent of more than two years’ wages, seemed economic deprivation so acute as to constitute economic persecution. I was strengthened in this preliminary view by the fact that the fines imposed on Chen actually exceeded, albeit modestly so, the fines imposed on Zhen Hua Li, whose case this court considered in Li v. Attorney General, 400 F.3d 157 (3d Cir.2005). There, this court held that Li‘s allegations, if established, did constitute economic persecution. But my post-argument assessment has proved inadequate. I am persuaded by this court‘s opinion that, notwithstanding the similarity in fines, there are decisive differences between Chen‘s case and Li‘s case which weigh against Chen‘s claim. Chen suffered no sanctions additional to the fines. By contrast, (1) Li lost his government job, and was blacklisted from further government employment; (2) Li and his family lost medical and educational benefits; and (3) a number of household furnishings were confiscated from his home. And in Judge Becker‘s opinion for the court in Li v. Attorney General, it was these severe incremental deprivations on top of the fines that were key to this court‘s conclusion that Li was the subject of economic persecution. Id. at 169.
The holding in this case is that the fines imposed on Chen, though “onerous” as the BIA characterized them, were not so severe an economic deprivation as to constitute economic persecution, and, hence, that Chen was not entitled to asylum. I join that holding.
But beyond this court‘s holding this case entails a cautionary lesson. When Li‘s case arose, the BIA ruled that Li did not qualify for asylum. This court ruled otherwise. In ruling on the case at bar the BIA found that Chen was not as oppressively disadvantaged as Li, and we today conclude that the BIA adduced substantial evidence in support of that finding. But it would, I think, be a mistake to draw the inference that the quantum of economic deprivation suffered by Li is the minimum standard that must be met by one claiming economic persecution. I would suggest that the BIA and this court must be alert to scenarios involving punishments which, while grave and lasting, may take forms different from those visited on Li, or are only marginally less destabilizing than those suffered by Li. The economic deprivation so daunting as to constitute economic persecution is not a closed category.
Gerard Louis, Lewisburg, PA, pro se.
Timothy S. Judge, Esq., Office of United States Attorney, Scranton, PA, U.S. Atty MD PA, Office of United States Attorney, Harrisburg, PA, for Defendant-Appellee.
Before: BARRY, FISHER and ROTH, Circuit Judges.
OPINION
PER CURIAM.
Appellant Gerard Louis, a federal prisoner incarcerated at the United States
Within a week of the filing of the complaint and motion, the District Court held a hearing on Louis‘s motion. Louis admitted, via teleconference, that, almost immediately after complaining, he was separated from his cell mate and transferred to the Special Management Unit (“SMU“). See N.T., 2/25/11, at 27. Nonetheless, although he was no longer paired with the person he feared, Louis testified that he still feared being raped in the SMU because dangerous inmates are housed there, see id. at 30-31. He also was dissatisfied with the restrictions and considered the placement a punishment. On cross-examination, Louis testified that his cellmate had fondled his buttocks. See id. at 33.
Frank Perrin, a Special Investigative Agent at USP-Lewisburg, testified that he investigated Louis‘s allegations, and, immediately upon receiving his complaint, BOP staff instituted the sexual abuse protocol, which included, among other things,
At the conclusion of the hearing, the District Court denied the motion for a temporary restraining order and/or preliminary injunction. The court reasoned that, because of the transfer to the SMU, Louis could not show irreparable harm. The court determined that Louis‘s claim that he was too isolated and restricted in the SMU was not part of his original complaint, and could be addressed during the course of the litigation, and, in any event, his current placement appeared reasonable under the circumstances. See id. at 49-51.
Louis appeals. Our Clerk granted him leave to appeal in forma pauperis and advised him that the appeal was subject to summary dismissal under
We have jurisdiction under
We will summarily affirm the order of the District Court because no substantial question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. To obtain a preliminary injunction, the moving party must demonstrate both (1) a likelihood of success on the merits, and (2) the probability of irreparable harm if relief is not granted. See Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197 (3d Cir.1990). Both prerequisites must be satisfied before an injunction will be granted. See id. The District Court should also take into account (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest. See id. at 198 (citing Morton v. Beyer, 822 F.2d 364, 367 n. 3 (3d Cir.1987)). We review an order denying a preliminary injunction for an abuse of discretion, an error of law, or a clear error on the facts. See ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.1987).
The District Court properly denied preliminary injunctive relief, because Louis failed to show immediate irreparable injury. See Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351, 359 (3d Cir.1980) (risk of irreparable harm means clear showing of immediate irreparable injury or presently existing actual threat). Louis was moved away from his cellmate immediately after he complained. He is no longer in danger from that inmate and he presented no evidence, other than his own speculation, that he is currently in any kind of danger in the SMU. For this reason alone, denial of preliminary injunctive relief was proper. See Hoxworth, 903 F.2d at 197.
For the foregoing reasons, we will summarily affirm the order of the District Court, denying the motion for a temporary restraining order and/or preliminary injunction.