2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-6-2010

Dawn Ball v. C.O. Oden

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1702

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Recommended Citation

"Dawn Ball v. C.O. Oden" (2010). 2010 Decisions. Paper 486.

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CLD-282 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1702

___________

DAWN MARIE BALL,

 Appellant

v.

C.O. ODEN; C.O. REED; C.O. PINARD; SGT RAGAR; C.O. WOFORD;

C.O. GAIR; LT. HUMMEL; C.O. KEEN; C.O. FOULDS; SGT. GRINER;

SGT. CAMPBELL; CAPT. ROBENOLT; LT. GRIDLEY; SGT. WINDER;

LT. BLESSING; LT. SISLEY; TROY EDWARDS; EISWERTH; C.O. SMITH;

DEPUTY SMITH; LT. CRAVER; D. MILLER; REEDING; T. PETERSON;

KOLENO; KOPSHINA; CIPHAM; SUPT. LAMAS; SECY. BEARD; C.O.

AIKEY; C.O. ECKROTH; C.O. NOLTE; C.O. BAKER; LT. BARTO

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 09-cv-00847)

District Judge: Honorable Yvette Kane

____________________________________

Submitted for Possible Dismissal Under 28 U.S.C.

' 1915(e)(2)(B) and Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

September 2, 2010

Before: BARRY, FISHER and GREENAWAY, JR., Circuit Judges.

(Filed: October 6, 2010 )

_________

OPINION

_________
2

PER CURIAM

Dawn Marie Ball appeals from the District Court=s order denying her motion for a 

preliminary injunction. We will affirm. See 3d Cir. L.A.R. 27.4 (2008); 3d Cir. I.O.P. 

10.6.

I.

Ball, a Pennsylvania prisoner proceeding pro se, filed suit under 42 U.S.C. ' 1983 

against thirty-four correctional officers and other prison personnel. Ball alleges various 

instances in which she claims that defendants searched her cell, seized her property, 

confiscated unspecified legal material, and interfered in various ways with her incoming 

and outgoing legal and other mail. She also filed a motion for a preliminary injunction, in 

which she requests the immediate return of her property and an order requiring defendants

to provide her access to the law library and preventing them from labeling her mail. 

Defendants filed a brief in opposition to the motion, together with an appendix presenting 

evidence that Ball failed to exhaust her claims and that they otherwise lack merit, and 

Ball filed a reply. By order entered February 17, 2010, the District Court denied Ball=s 

motion. Ball appeals.

II.

We have jurisdiction to review the denial of preliminary injunctive relief pursuant 

to 28 U.S.C. ' 1292(a)(1).1 We do so for abuse of discretion, though we review 

 

1

The District Court=s February 17 order also denied a motion that Ball had filed for 
3

underlying conclusions of law de novo. See Adams v. Freedom Forge Corp., 204 F.3d 

475, 484 (3d Cir. 2000). A preliminary injunction is an extraordinary remedy, and the 

party seeking it must show, at a minimum, a likelihood of success on the merits and that 

she faces irreparable harm in the absence of the injunction. See id.

 

the appointment of counsel. Our jurisdiction does not extend to that ruling. See SmithBey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).

The District Court denied Ball=s motion on the grounds that she failed to establish 

these elements. For the reasons explained in the District Court=s thorough and careful 

opinion, we agree. Ball argues primarily that defendants are interfering with her right to 

access the courts. As the District Court explained, however, Ball has not shown that 

defendants are interfering with her ability to assert any non-frivolous claim. See

Christopher v. Harbury, 536 U.S. 403, 415 (2002). Even if they were, she has a legal 

remedy in the form of a denial-of-access suit, which she is pursuing here (and elsewhere, 

in the action pending at M.D. Pa. Civ. No. 08-cv-00701). She also has not shown that 

defendants are irreparably injuring her ability to litigate this or any other suit. As the 

District Court noted, Ball devoted the majority of her reply to arguing that she can 

overcome defendants= arguments regarding exhaustion but requires the materials they 

have confiscated from her in order to do so. The District Court concluded that it could 

resolve that issue if and when appropriate during discovery. We cannot say that it abused 

its discretion in doing so.
4

Accordingly, we will affirm the judgment of the District Court. Ball=s motion for 

the appointment of counsel in this Court is denied.