On Appeal from the United States District Court for the District of New Jersey (Trenton), D.C. Civil Action No. 86-2389.
HIGGINBOTHAM and STAPLETON, Circuit Judges, and CONABOY, District Judge*fn*
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This appeal arises from the order of the district court granting plaintiff-appellee Ronald Morton's application for a preliminary injunction seeking reinstatement and back pay or, alternatively, back pay and suspension with pay pending a final post-termination hearing. Based primarily on its determination that Morton was afforded a procedurally deficient pretermination hearing in contravention of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985), the district court granted appellee's motion, awarded him back pay and ordered defendants-appellants to return Morton to active employment at the Department of Corrections or to continue his suspension with pay. For the reasons set forth below, we find that the requirements for injunctive relief were not met. Accordingly, we will reverse the order of the district court.
On June 19, 1986, appellee Morton filed a complaint pursuant to 42 U.S.C. § 1983 (1982), against Howard Beyer, Administrator of the New Jersey State Prison, William Fauver, Commissioner of the New Jersey Department of Corrections, John Doe, and the New Jersey Department of Corrections, alleging that appellants violated and conspired to violate his rights guaranteed by the due process and equal protection clauses of the fourteenth amendment. Prior to the institution of this action. Morton was actively employed by the New Jersey Department of Corrections as a corrections sergeant at Trenton State Prison. As a corrections sergeant, Morton was responsible for the care and custody of prison inmates as well as the supervision of fellow corrections officers. The instant action arose from Morton's suspension without pay on the ground that he had physically abused an inmate without cause and had attempted to cover-up his involvement in the incident.
Morton's suspension stemmed from a complaint filed on September 25, 1985, by an inmate named Olsen charging that Morton and two other corrections officers entered his cell and assaulted him with a baton. On the day of the alleged assault, Morton was interviewed by an investigator from the prison's Office of Internal Affairs. After being advised of his Miranda rights, Morton issued a written statement concerning his encounter with inmate Olsen in which he maintained that "at no time was [Olsen] harmed or injured by me or any staff member." Appendix ("App.") at 15a. An investigation of the incident ensued and was substantially complete by October 26, 1985. The decision to take disciplinary action against Morton was not made, however, until on or around March 26, 1986. See App. at 158a. On that date, as he arrived for his scheduled shift, Morton was approached by a fellow corrections officer who handed him an envelope from appellant Beyer. The envelope contained a brief memorandum, the text of which read: "This is to advise you that you are suspended from duty effective immediately. You are hereby ordered to report to my office on Thursday, March 27, 1986, at 9 a.m. sharp." See App. at 159a.
On the morning of March 27, Morton arrived at Beyer's office accompanied by his union representative, John Adams. Beyer advised Morton that he anticipated bringing charges against him for the September 26, 1985 incident. Beyer further indicated that the meeting was intended to provide Morton with a hearing. Beyer supplied Morton with a packet of materials, consisting of the various investigative reports of the incident, for his review and comment. Upon the advice of his union representative, Morton categorically denied any wrongdoing but declined to offer his version of the incident. Beyer then informed Morton that he was suspended without pay. Adams objected to the suspension, arguing that under Loudermill any suspension should be with pay. See App. at 126a. After a brief recess, during which Beyer discussed Morton's case with Assistant Superintendent Anthony Turner, Beyer again informed Morton that he was suspended without pay pending the outcome of the investigation. According to Morton, the meeting -- including the recess -- lasted approximately ten minutes. App. at 115a.
A written report summarizing the meeting, entitled "LOUDERMILL HEARING, Ronald Morton, Correctional Sergeant," was prepared and given to Morton at the close of the meeting. App. at 154a-156a; see also App. at 98a (test of the written report). In addition a memorandum from Beyer dated March 27, 1986, further advised Morton that his "conduct on September 26, 1985 was unbecoming [of] an employee in public office." App. at 97a. Specifically, the memorandum informed Morton that "the [pending] investigation reveals that you physically abused an inmate without cause and were involved in a conspiracy to cover-up your involvement." Id. Finally, on April 9, 1986, the Trenton State Prison served Morton with a Preliminary Notice of Disciplinary Action which specifically summarized the allegations leveled against Morton, including names and dates.
Pursuant to N.J. Admin. Code tit. 4, § 1-5.1(a) (Supp. 1986),*fn1 Morton requested a departmental hearing on the charges and the hearing was scheduled for June 30, 1986.*fn2 Prior to that hearing, on June 27, 1986, Morton filed his § 1983 complaint and order to show cause before the district court. On July 9, 1986, after two days of argument, the district court issued the preliminary injunction that is the subject of this appeal.
"We have consistently held that our review of the grant or denial of preliminary injunctions is limited to determining whether there has been an abuse of discretion, an error of law, or a clear mistake in the consideration of the proof." Moteles v. University of Pennsylvania, 730 F.2d 913, 918 (3d Cir. 1984); See e.g., Sullivan v. City of Pittsburgh, 811 F.2d 171, 181 (3d Cir. 1987); Rennie v. Klein, 653 F.2d 836, 840-41 (3d Cir. 1981); A.O. Smith Corp. v. F.T.C., 530 F.2d 515, 525 (3d Cir. 1976). To obtain a preliminary injunction, the moving party must demonstrate both a likelihood of success on the merits and the probability of irreparable harm if relief is not granted.*fn3 See Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148, 151 (3d Cir. 1984). As this Court noted in In Re Arthur Treacher's Franchisee Litig., 689 F.2d 1137 (3d Cir. 1982), "we cannot sustain a preliminary injunction ordered by the district ...