Alverson v. Cummins et al (INMATE 1)

Filing 13

REPORT AND RECOMMENDATION of the Magistrate Judge that: 1) The 9 MOTION for Preliminary Injunction filed by the plf be DENIED; 2) This case be referred back the undersigned for additional proceedings; Objections to R&R due by 4/13/2009. Signed by Honorable Terry F. Moorer on 3/27/2009. (wcl, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION R O D N E Y ALVERSON, #132431, Plaintiff, v. ) ) ) ) ) ) ) ) ) ) C IV IL ACTION NO. 2:09-CV-81-WHA [W O ] J O H N CUMMINS, et al., Defendants. RECOMMENDATION OF THE MAGISTRATE JUDGE This case is before the court on a 42 U.S.C. 1983 amended complaint filed by Rodney Alverson ["Alverson"], a state inmate presently confined at the Easterling Correctional Facility ["Easterling"]. In this amended complaint, Alverson challenges v a rio u s conditions of confinement at Easterling, being slapped on the back of the head by a r io t officer, the denial of visitation to family members, the lack of access to tobacco products, a n d denial of adequate treatment for mental and medical conditions associated with his n ic o tin e withdrawals. Alverson seeks issuance of a preliminary injunction to prevent the alleged violations of his constitutional rights. Plaintiff 's Amended Complaint - Court Doc. No. 9 at 22. I. 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 demonstrates 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. Palmer, 287 F.3d at 1329; McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983); Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 697 F.2d 1352 (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; All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1537 (11th Cir. 1989) (a preliminary injunction is issued only when "drastic relief" is necessary); Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir. 1975) (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 claim, regardless of the party's ability to establish any of the other elements. Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994); see also 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 2 is to preserve the status quo until the merits of the controversy can be fully and fairly adjudicated.' Northeastern Fl. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fl., 896 F.2d 1283, 1284 (11th Cir.1990)." Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001). II. DISCUSSION Turning to the first prerequisite for issuance of preliminary injunctive relief, the court finds that Alverson has failed to demonstrate a substantial likelihood of success on the merits of his claims. Alverson also fails to demonstrate a substantial threat that he will suffer the requisite irreparable injury absent issuance of a preliminary injunction. The third factor, balancing potential harm to the parties, weighs more heavily in favor of the defendants. Finally, the public interest element of the equation is a neutral factor at this juncture. Thus, Alverson has failed to meet his burden of demonstrating the existence of each prerequisite necessary to warrant issuance of a preliminary injunction. III. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. The motion for preliminary injunction filed by the plaintiff be DENIED. 2. This case be referred back the undersigned for additional proceedings. It is further ORDERED that on or before April 13, 2009 the parties may file objections to the Recommendation. Any objection must specifically identify the findings in the 3 Recommendation objected to. Frivolous, conclusive or general objections will not be considered by the District Court. The parties are further advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings in the Recommendation shall bar the party from a de novo determination by the District Court of issues addressed in the Recommendation and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); see Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982); see also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all decisions of the former Fifth Circuit issued prior to September 30, 1981. Done this 27th day of March, 2009. /s/Terry F. Moorer TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE 4

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