IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD DANDAR, )

Petitioner, )

)

v. ) C.A. No. 08-60 Erie

)

MARK KRYSEVIG, et al., )

Respondents. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the following motions filed by Plaintiff be denied:

 1. “Motion for Declaratory Relief” [Document # 73]

 2. “Motion for Declaratory Relief-Injunctive-TRO Relief” [Document # 77]

 3. “Motion for Declaratory Judgment - TRO” [Document # 78]

 4. “Motion for TRO-Declaratory-Injunctive Relief” [Document # 80]

 5. “Motion for Declaratory Relief” [Document # 94]

 6. “Motion for Declaratory Judgment” [Document # 102]

 7. “Motion for Declaratory Relief” [Document # 103]

 8. “Motion for Declaratory Relief” [Document # 104]

 9. “Motion for Declaratory Relief” [Document # 105]

10. “Motion for Declaratory Judgment” [Document # 106]

II. REPORT

A. Relevant Procedural and Factual History

Petitioner Ronald Dandar, an inmate at the State Correctional Institution at Cresson,

Pennsylvania (“SCI-Cresson”), initiated this action by filing a petition for writ of habeas corpus

on February 25, 2008, challenging his underlying criminal trial and conviction. The Erie

County District Attorney filed a response to the habeas petition on June 9, 2008. Since then,

Petitioner has inundated this Court with a plethora of motions and requests, each of which

consists of a rambling compilation of disjointed allegations that are often difficult to

comprehend. The Court attempted to address many of these motions by telephone hearing

conducted on October 9, 2009; however, at the outset of the hearing, Petitioner voiced his

displeasure at having the motions addressed orally and requested that all of his motions be

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Petitioner’s motions docketed at Document ## 72 and 74 have been more appropriately addressed by separate text

order issued on December 29, 2009. 

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decided on the basis of written documents, without a hearing. (See Document # 81, Minute

Entry of October 9, 2009 hearing, and Document # 82, Hearing Transcript). As a result, the

Court ordered the Respondents to file written responses to the motions that were pending at the

time of the hearing, and responses have since been filed. Before those motions could be

addressed, however, Petitioner persisted in filing a number of additional motions, to which

responses haven’t been filed. Nonetheless, these motions essentially repeat the allegations

and/or relief requested in Petitioner’s earlier motions and, thus, no additional responses are

warranted. Accordingly, Petitioner’s motions are now ripe for consideration.1

At present, there are ten motions pending. The following is a list of these motions,

including a brief description of each motion’s subject matter:

1. Document # 73 is entitled “Written Court Order Declaratory

Relief” and seeks an order allowing Petitioner access to his legal

materials, personal hygiene items and prescribed medical

devices, which he claims Respondents have refused him in

retaliation for exercising his Constitutional rights. 

2. Document # 77 is entitled “Declaratory Relief - Injunctive - TRO

Relief” and appears to challenge the removal of Petitioner’s Zcode status and his subsequent confinement in the restricted

housing unit (“RHU”), by, or at the direction of, “mental health

advisor Deena Martinez.”

3. Document # 78 is entitled “Declaratory Judgment - TRO -

Temporary Injunction - Imminent Danger” and, again, challenges

the removal of Petitioner’s Z-code status and his subsequent

confinement in the RHU. In particular, Petitioner claims that the

removal of his Z-code status has denied and/or delayed his access

to the courts

4. Document # 80 is entitled “TRO - Declaratory - Injunctive Relief

- Imminent Danger” and challenges the removal of Petitioner’s

Z-code status and his subsequent RHU confinement, on due

process grounds.

5. Document # 94 is entitled “Declaratory Relief - Federal State

Grand Jury - Statewide In Camera Tool” and appears to seek an

order compelling the Pennsylvania Attorney General to turn over

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various court records and videos “regarding operation ve code -

security match-up.”

6. Document # 102 is simply entitled “Declaratory Judgment” and

appears to state a negligence and/or due process claim related to

the loss, mis-placement, or destruction of certain state court

records.

7. Document # 103 is entitled “Protected Right - Declaratory

Relief” and contains allegations substantially similar to those

contained in Document # 94 regarding “operation ve code -

security match-up.”

8. Document # 104 is entitled “Declaratory Relief - Irreparable

Harm” and seeks an order compelling the chief psychiatrist to

“correct Petitioner’s mental health records” in an apparent

attempt to regain his Z-code status.

9. Document # 105 is entitled “Declaratory Relief” and contains

allegations substantially similar to those contained in Document

# 102.

10. Document # 106 is entitled “Declaratory Judgment” and contains

a series of bizarre allegations regarding “traditional hate crimes

statutes,” “operation code: i-TAP-ATT-SCU-04,” an “imminent

threat to the President of the United States Barack Obama,” staffassisted suicides, the use of tear gas, and the smearing of feces

“all over cells.”

Respondents argue that the only issue Petitioner is permitted to raise in this habeas

proceeding is whether he is in custody in violation of the Constitution and, thus, all of the

foregoing motions raise legal issues/claims over which this Court is without jurisdiction to

address. Accordingly, Respondents contend that Petitioner must raise such claims in a separate

civil rights action under 42 U.S.C. § 1983, if he wishes to pursue them. To the extent the

foregoing motions seek relief other than injunctive relief to avoid irreparable harm, the Court

agrees. As a result, the motions at Document ## 94, 102, 103, 104, 105, and 106 should be

dismissed without prejudice to Petitioner’s right to assert the legal claims raised in said motions

in a separate civil rights action, if he so chooses. 

With regard to Document ## 73, 77, 78, and 80, all of said motions seek injunctive

relief, claiming irreparable harm and, thus, must be addressed separately under the appropriate

legal standard.

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B. Standard of Review - Injunctive Relief

The four factors that must be shown for the issuance of a temporary restraining order are

the same as those required to issue a preliminary injunction. Fink v. Supreme Court of

Pennsylvania, 646 F.Supp. 569, 570 (M.D.Pa. 1986). To obtain a preliminary injunction, the

District Court must consider: (1) the likelihood of success on the merits; (2) the extent of

irreparable injury from the alleged misconduct; (3) the extent of harm to the movant; and (4) the

effect on public interest. Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir. 1995);

Opticians Ass'n of America v. Independent Opticians of America, 920 F.2d 187, 191-92 (3d Cir.

1990). The preliminary injunction remedy "must be reserved for extraordinary

circumstances...." Hoxworth v. Blinder, Robinson & Co. Inc., 903 F.2d 186, 189 (3d Cir. 1990). 

If the record does not support a finding of both irreparable injury and a likelihood of success on

the merits, then a preliminary injunction cannot be granted. Marxe v. Jackson, 833 F.2d 1121

(3d Cir. 1987). 

Irreparable injury is established by showing that Petitioner will suffer harm that "cannot

be redressed by a legal or an equitable remedy following trial." Instant Air Freight Co. v. C.F.

Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989)("The preliminary injunction must be the only

way of protecting the plaintiff from harm").

 Petitioner bears this burden of showing irreparable injury. Hohe v. Casey, 868 F.2d 69,

72 (3d Cir.), cert. denied, 493 U.S. 848 (1989). In fact, Petitioner must show immediate

irreparable injury, which is more than merely serious or substantial harm. ECRI v. McGrawHill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). The case law provides some assistance in

determining that injury which is irreparable under this standard. "The word irreparable connotes

'that which cannot be repaired, retrieved, put down again, atoned for...'." Acierno v. New Castle

County, 40 F.3d 645, 653 (3d Cir. 1994)(citations omitted). Additionally, "the claimed injury

cannot merely be possible, speculative or remote." Dice v. Clinicorp, Inc., 887 F.Supp. 803,

809 (W.D.Pa. 1995). An injunction is not issued "simply to eliminate a possibility of a remote

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future injury...." Acierno, 40 F.3d at 655 (citation omitted). 

C. Discussion

Petitioner has failed to meet his burden of showing immediate irreparable injury in the

context of any of his pending motions seeking injunctive relief, as more fully discussed below. 

1. Document # 73

The motion docketed as Document # 73 seeks an order allowing Petitioner access to his

legal materials, personal hygiene items and prescribed medical devices, which he claims

Respondents have refused him in retaliation for exercising his Constitutional rights. In

response, Respondents state that Petitioner was given an opportunity to review and exchange

legal materials on June 16, 2009, but he refused. (See Document # 86, Respondents’ response to

Document # 73, at ¶ 5 and Exhibit A2). Moreover, Petitioner’s unit manager, Michelle Houser

has submitted a Declaration certifying that Petitioner “has never made a request to exchange his

property for another box ... [n]or has he requested more frequent exchanges based on his

litigation needs.” (See Houser Declaration attached as Exhibit B to Document # 86, at ¶ 2). In

addition, Ms. Houser declares that, although Petitioner “has certain items of personal property in

storage consisting of knee sleeves, a cervical collar and an air splint”..., he “has never submitted

a request to be permitted these items based on medical need” while in disciplinary custody. (Id.

at ¶ 3). Ms. Houser declares further that Petitioner “has been given soap and shampoo while in

RHU,” and that his “RHU records also reveal numerous refusals to shower.” (Id.). Based on the

foregoing evidence, it is clear that Petitioner has failed to demonstrate immediate irreparable

injury resulting from the claims set forth in Document # 73.

2. Document ## 77, 78, and 80

The motions docketed at Document ## 77, 78, and 80 all seek to have Petitioner’s ZCase 1:08-cv-00060-SJM-SPB Document 114 Filed 01/05/10 Page 5 of 7
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code status restored; however, Petitioner has failed to allege any immediate irreparable harm

that either has resulted, or is likely to result, from the removal of his Z-code. The only alleged

“harm” that Petitioner claims to have suffered is “delayed access to the courts.” (Document # 78

at p. 1). However, Petitioner has failed to demonstrate how the removal of his Z-code has or

will, in any way, affect his access to the courts. Instead, Petitioner is complaining that his

placement in the RHU has kept him from having “meaningful and adequate access to his legal

materials;” however, Petitioner is in the RHU due to his refusal to be placed in general

population without his Z-code. Thus, Petitioner has essentially caused his own “harm.” 

Moreover, Petitioner has not alleged that he missed any court deadlines as a result of the

removal of his Z-code status. Accordingly, he has failed to substantiate his access to courts

claim in any event. 

Based on the foregoing, Petitioner’s requests for injunctive relief contained in his

motions docketed at Document ## 73, 77, 78, and 80, should be denied.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the following motions

filed by Plaintiff be denied:

 1. “Motion for Declaratory Relief” [Document # 73]

 2. “Motion for Declaratory Relief-Injunctive-TRO Relief” [Document # 77]

 3. “Motion for Declaratory Judgment - TRO” [Document # 78]

 4. “Motion for TRO-Declaratory-Injunctive Relief” [Document # 80]

 5. “Motion for Declaratory Relief” [Document # 94]

 6. “Motion for Declaratory Judgment” [Document # 102]

 7. “Motion for Declaratory Relief” [Document # 103]

 8. “Motion for Declaratory Relief” [Document # 104]

 9. “Motion for Declaratory Relief” [Document # 105]

10. “Motion for Declaratory Judgment” [Document # 106]

In accordance with the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), and Fed.R.Civ.P.

72(b)(2), the parties are allowed fourteen (14) days from the date of service to file written

objections to this report and recommendation. Any party opposing the objections shall have

fourteen (14) days from the date of service of objections to respond thereto. Failure to timely

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file objections may constitute a waiver of some appellate rights. See Nara v. Frank, 488 F.3d

187 (3d Cir. 2007).

/s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

United States Magistrate Judge

Date: January 4, 2010

cc: Honorable Sean J. McLaughlin

United States District Judge

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