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Alverson v. Dunn

United States District Court, M.D. Alabama, Northern Division

May 17, 2018

RODNEY ALVERSON, #132431, Plaintiff,
v.
JEFFERSON S. DUNN, Defendant

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This cause of action is currently pending before the court on a 42 U.S.C. § 1983 complaint filed by Rodney Alverson, an indigent state inmate currently incarcerated at Easterling Correctional Facility. In the instant complaint, Alverson challenges his exposure at Easterling to second-hand smoke which he believes contains a toxic chemical substance. Alverson seeks issuance of preliminary injunction requiring that defendant Dunn (i) prevent the chemical substance from entering Easterling, (ii) test the chemical substance to obtain its identity, and (iii) transfer him to a chemical-free facility, i.e., Limestone, if the flow of the substance into Easterling is not stopped. Doc. 2 at 2.

         On April 16, 2018, the court entered an order directing the defendant to show cause why Alverson's motion for preliminary injunction should not be granted. Doc. 6.

         Defendant Dunn filed a response to this order on May 1, 2018. Doc. 14. Alverson then filed a reply to the defendant's response. Doc. 19.

         Upon review of the motion for preliminary injunction filed by the plaintiff, the defendants' response thereto, plaintiff's reply and well-settled law, the court concludes that the motion is due to be denied.

         II. STANDARD OF REVIEW

         The decision to grant or deny a preliminary injunction “is within the sound discretion of the district court.” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir. 2002). This court may grant a preliminary injunction only if Alverson meets each of the following prerequisites: (1) a substantial likelihood of success on the merits; (2) a substantial threat irreparable injury will occur absent issuance of the injunction; (3) the threatened injury outweighs the potential damage the requested injunction may cause the non-moving parties; and (4) the injunction would not be adverse to the public interest. Id. at 1329; Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001); Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir. 1999); McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998); Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983). “In this Circuit, [a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the burden of persuasion as to the four requisites.” McDonald's, 147 F.3d at 1306 (internal quotation marks omitted) (quoting All Care Nursing Serv., Inc. v. Bethesda Mem. Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir. 1989)); see Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir. 1975) (holding that a grant of preliminary injunction “is the exception rather than the rule, ” and movant must clearly carry the burden of persuasion). The moving party's failure to demonstrate a “substantial likelihood of success on the merits” may defeat the party's request for injunctive relief, regardless of the party's ability to establish any of the other requisite elements. Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994); see Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (noting that “the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper”). “The chief function of a preliminary injunction is to preserve the status quo until the merits of the controversy can be fully and fairly adjudicated.” Northeastern Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1284 (11th Cir. 1990); Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001).

         III. DISCUSSION

         In his response to the motion for preliminary injunction, the defendant denies any violation of Alverson's constitutional rights with respect to his alleged exposure to toxic second-hand smoke. Walter Myers, the warden at Easterling, addresses Alverson's request for injunctive relief, in pertinent part, as follows:

Inmate Rodney Alverson . . . stated that in the last 4 months 3 inmates have died at Easterling Correctional Facility due to chemical joint use and that there have been numerous fights and stabbings due to the mind-altering effects of the drugs.
Answer - Two inmates have died at Easterling Correctional Facility this year [but] their cause of death is unknown to me. Forensic Scientists conducted an autopsy of those inmates, although they are not available to me. Easterling Correctional Facility's Staff works diligently to eliminate the use of drugs at this facility and to decrease the number of altercations that occur at this institution.
Inmate Alverson stated that he is being exposed to second-hand smoke, from chemical joints, causing him headaches and diarrhea.
Answer - Inmate Alverson has not requested any treatment from the Health Care Unit for ...

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