United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
action is before the Court on plaintiff's Motion for
Temporary Restraining Order/Preliminary Injunction
(“motion”),  which the Court is treating as a motion
for a temporary restraining order due to the absence of a
certificate of service reflecting that plaintiff served his
motion on defendants or their counsel. (Doc. 30). This motion
has been referred to the undersigned pursuant to 28 U.S.C.
§ 636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). It is
recommended that the motion be denied.
primary purpose of a temporary restraining order or a
preliminary injunction is to maintain the status quo
of the parties until there is a trial on the merits.
University of Texas v. Camenisch, 451 U.S.
390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981).
“[A] preliminary injunction is an extraordinary and
drastic remedy[, ]” which will not be granted unless
the movant carries the burden of persuasion as to all the
four prerequisites. Zardui-Quintana v. Richard, 768
F.2d 1213, 1216 (11th Cir. 1985) (citation and quotations
marks omitted). To prevail on a request for injunctive
relief, the movant must show:
(1) a substantial likelihood that he will ultimately prevail
on the merits; (2) that he will suffer irreparable injury
unless the injunction issues; (3) that the threatened injury
to the movant outweighs whatever damage the proposed
injunction may cause the opposing party; and (4) that the
injunction, if issued, would not be adverse to public
Id. Moreover, injunctive relief will not issue
unless the complained of conduct is imminent and no other
relief or compensation is available. Cunningham v.
Adams, 808 F.2d 815, 821 (11th Cir. 1987).
present motion, signed under penalty of perjury, plaintiff
alleges that on July 16, 2018, he filed a grievance with jail
officials because he feared for his safety due to the past
acts of Officer Cleveland, (who is mentioned in the
complaint). (Doc. 30 at 2). These past acts were not
described in his motion, nor was a basis for his fear. On
that date, he was placed in administrative segregation for
his protection by jail officials. (Id.). But he
claims that administrative segregation is a hostile
environment with inadequate security in that inmates can pick
locks and get into cells, which he has seen done in addition
to the resulting assaults. (Id. at 2). He has asked
for solitary confinement because he fears for his safety due
to retaliation for filing two § 1983 actions and a
grievance containing issues aggrieved in the present
complains that his time to access his legal materials (i.e.,
his personal law books, paper, pens, and legal mail) is
limited by jail officials to sixty minutes, which is
shortened due to the unavailability of guards to assist him
in the retrieval of his legal materials or by having to
shower or to clean his cell during that time. (Id.
at 2-3). Furthermore, the jail policy prohibits his writing
or contacting his family while in administrative segregation,
so he may tell them that he fears “for his safety from
all inmates in [Metro] due to retaliation from officers
paying offenders to assault offenders for filing grievances
on them.” (Id.). Plaintiff complains that his
present “living condition” is
“unsafe/unsanitary, ” which “could possibly
lead to future health problems due to [the] unsanitary living
conditions [of][:] 1) stagnant sewage water running from
cells[sic] walls into plaintiff['s] cell[;] 2) black mold
growing on cell walls and cracks [sic] growing on door
frame[;] [and] 3) [the] shower [being] full of black
mold.” (Id. at 3-4). He also has no access to
a bottom bunk which forces him to sleep on the floor because
he cannot access the five-foot-high, top bunk due to the lack
of a ladder. (Id. at 4).
injunctive relief request is for (1) “full access to
his legal material 24/7” in order to prosecute his
civil litigation, and (2) placement in a single-man cell,
known as a “quiet cell in [the] 900 area of jail out of
[the] hostile environment and unsanitary unsafe living
conditions, ” and access to the telephone and personal
mail. (Id. at 4-5). He alleges that the failure to
grant his requests will cause him irreparable injury.
(Id. at 4). In addition, plaintiff contends that he
“will likely prevail on the merits once a discovery
process is initiated” and the granting of this motion
would involve “no major risk to the control[l]ing
entity here at [Metro] and will serve the public interest for
[the] administration to obey the law especially the
Constitution.” (Id. at 5). No. supporting facts
were connected to his restatement of the prerequisites for
granting injunctive relief.
mentions the four prerequisites for a temporary restraining
order to issue. He does not support these elements with
adequate information to satisfy his burden of persuasion,
however. Plaintiff conclusorily argues that all four elements
are or will be satisfied. The Court's findings, however,
are to the contrary. Examining one element that plaintiff
must satisfy - whether plaintiff will suffer irreparable
injury unless the injunction issues - reflects that he has
not met his burden of persuasion.
motion plaintiff does not identify a specific injury, much
less an irreparable injury, from which he will suffer if
injunctive relief does not issue. Plaintiff merely states, in
a very general manner, that he needs access to his legal
materials “24/7” in order to prosecute his civil
litigation. No. injury related to inadequate access to courts
is identified. Moreover, it would be difficult to show an
injury with respect to this particular action as plaintiff is
actively litigating it by filing documents with legal
citations germane to his position.
Lewis v. Casey, 518 U.S. 343, 354, 116 S.Ct. 2174,
2181-82, 135 L.Ed.2d 606 (1996), to which plaintiff refers,
the Court made clear that the decision in Bounds v.
Smith,430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72
(1977), “did not create an abstract, freestanding right
to a law library or legal assistance[.]”
Lewis, 518 U.S. at 351, 116 S.Ct. at 2180. Law
libraries and legal assistance programs were held by the
Lewis Court not to be ends themselves, “but
only the means for ensuring a reasonably adequate opportunity
to present claimed violations of fundamental constitutional
rights to the courts.” Id. Thus, the
Lewis Court held that to state a
denial-of-access-to-courts claim, an inmate must show that he
sustained an actual injury by showing that he was frustrated
or impeded in attacking his conviction, directly or
collaterally, or in a civil rights action challenging his
conditions of confinement. Id. at 351-52, 116 S.Ct.
at 2180. The inmate must further show that the underlying
claim that he was advancing was a non-frivolous claim.
Lewis, 518 U.S. at 353, 116 S.Ct. at 2181. This
underlying claim “must be described well enough to
apply the ‘nonfrivolous' test and to show that the
‘arguable' nature of the underlying claim is more