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Haulcomb v. Cochran

United States District Court, S.D. Alabama, Southern Division

August 22, 2018

NICHOLAS ANDRE HAULCOMB, #280588/249168, Plaintiff,
v.
SAM COCHRAN, et al., Defendants.

          REPORT AND RECOMMENDATION

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.

         This action is before the Court on plaintiff's Motion for Temporary Restraining Order/Preliminary Injunction (“motion”), [1] 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.

         I. Applicable Law.

         The 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 interest.

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).

         II. The Motion.

         In the 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 complaint. (Id.).

         Plaintiff 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).

         Plaintiff's 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.”[2] (Id. at 5). No. supporting facts were connected to his restatement of the prerequisites for granting injunctive relief.

         III. Analysis.

         Plaintiff 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.

         In his 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.

         In 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 than ...


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