Ludy v. Emmons et al

Filing 12

REPORT AND RECOMMENDATIONS that this motion be Denied as moot 4 MOTION for Preliminary Injunction, MOTION for Protective Order filed by Mitchell Ludy. Objections to R&R due by 10/11/2016. Signed by Magistrate Judge Brian K. Epps on 9/21/16. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
MITCHELL LUDY,

)
)
Plaintiff,
)
)
v.
)
CV 316-065
)
SHAWN EMMONS, Warden;
)
DEANNE MORRIS, Ga. Regent Health
)
System Health Service Administrator;
)
CHERIE PRICE, Deputy Warden;
)
WESLEY O’NEAL, Unit Manager; and
)
MITZI HALL, Director of Nursing, Ga.
)
Regent Health System,
)
)
Defendants.
)
________________________________________________________
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
________________________________________________________
Pro se Plaintiff, formerly incarcerated at Johnson State Prison (“JSP”) in
Wrightsville, Georgia, filed the above-captioned case pursuant to 42 U.S.C. § 1983 and is
proceeding in forma pauperis. Plaintiff was recently transferred to Rutledge State Prison
(“RSP”) in Columbus, Georgia. The Court REPORTS and RECOMMENDS Plaintiff’s
motion for a preliminary injunction and/or protective order be DENIED AS MOOT. (Doc.
nos. 4-1, 4-2.)
I.

BACKGROUND
Plaintiff alleges Defendants violated his constitutional rights by refusing to place him

in an air-conditioned dorm, removing his plastic container for his CPAP breathing machine,
and removing him from the barbering detail. (See doc. no. 1, pp. 11-14.) Plaintiff seeks an

injunction compelling Defendants to place him in a climate-controlled, assisted living dorm
and the CPAP container. (See doc. no. 4.) Plaintiff contends the non-climate controlled
dorms exacerbate his asthma and cause difficulty breathing and the plastic container protects
his CPAP from vermin and secondhand smoke. (Id. at 2.) Plaintiff also filed an amended
complaint after his motion for preliminary injunction alleging new claims against new
defendants at JSP, which are not part of his request for injunctive relief. (See doc. no. 9.)
While Plaintiff’s claims will be screened separately, the Court finds it appropriate to rule on
Plaintiff’s motion for a preliminary injunction without further delay.
II.

DISCUSSION
A.

Plaintiff’s Motion for a Preliminary Injunction is Moot.

An inmate’s claim for injunctive relief against prison officials is ordinarily subject to
dismissal for mootness when the prisoner is transferred to another prison and is no longer
under the control of the prison officials against whom injunctive relief is sought. Davila v.
Marshall, No. 15-10749, 2016 WL 2947929, at *2 (11th Cir. May 20, 2016); Wahl v.
McIver, 773 F.2d 1169, 1173 (11th Cir. 1985) (“Absent class certification, an inmate’s claim
for injunctive relief and declaratory relief in a section 1983 action fails to present a case or
controversy once the inmate has been transferred.”). Here, Plaintiff seeks injunctive relief
related to his living situation at JSP. However, Plaintiff reports that he has been transferred
to RSP, meaning that he is no longer is experiencing the same conditions from which he
asked for injunctive relief. Furthermore, there is no indication that he will return to JSP.
Therefore, Plaintiff’s motion for preliminary injunctive relief is moot.

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B.

Plaintiff’s Motion for a Preliminary Injunction Would Be Subject to
Denial Even If It Were Not Moot.

Plaintiff would not be entitled to a preliminary injunction even if his motion were
justiciable. A party moving for injunctive relief must show the following: “(1) substantial
likelihood of success on the merits; (2) irreparable injury will be suffered unless the
injunction issues; (3) the threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party; and (4) if issued, the injunction would not
be adverse to the public interest.” McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1306
(11th Cir. 1998). “A preliminary injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly establishes the ‘burden of persuasion’ as to the four
requisites.” All Care Nursing Serv., Inc., 887 F.2d at 1537 (citing United States v. Jefferson
County, 720 F.2d. 1511, 1519 (11th Cir. 1988)).
Plaintiff has not met his burden of persuasion on all four requisites for obtaining
injunctive relief. First, Plaintiff has offered nothing to suggest a likelihood of success on the
merits. To state a claim for deliberate indifference to serious medical needs, Plaintiff must
allege that: (1) he had a serious medical need – the objective component, (2) a defendant acted
with deliberate indifference to that need – the subjective component, and (3) his injury was
caused by a defendant’s wrongful conduct. Goebert v. Lee County, 510 F.3d 1312, 1326 (11th
Cir. 2007); see also Thomas v. Bryant, 614 F.3d 1288, 1317 n.29 (11th Cir. 2010). In cases of
asthma, as with Plaintiff’s claim, courts “refuse to fashion a rule that every instance of failure
to treat a prisoner’s asthma rises to the level of a constitutional claim.” Thomas v. Mikell, No.
CIV.A. 608-012, 2008 WL 2156362, at *2 (S.D. Ga. May 22, 2008). Indeed, “[m]ost courts
that have addressed the issue have required a showing that the asthma attack was severe or that
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it led to physical harm.” Id. Plaintiff complains of difficult breathing and wheezing due to
asthma, but alleges nothing that would indicate a need for serious medical attention. (See doc.
no. 4, p. 2.) While it is possible, Plaintiff is unlikely to succeed on his claim without a showing
that Plaintiff suffered a severe asthma attack and physical harm beyond mild difficulty
breathing as a result of living in non-climate controlled dorms. See id. (denying plaintiff’s
Eighth Amendment claim where he failed to allege severe asthma attack requiring immediate
medical attention). Thus, Plaintiff cannot satisfy the first prong of the test.
Additionally, Plaintiff has not shown he will suffer irreparable injury if the injunction
is not granted. In order to satisfy the irreparable injury requirement, Plaintiff must show the
threat of injury is “neither remote nor speculative, but actual and imminent.” Northeastern
Fla. Chapter of Ass’n of General Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d
1283, 1285 (11th Cir. 1990) (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d
969, 973 (2nd Cir. 1989)); see also Church v. City of Huntsville, 30 F.3d 1332, 1337 (11th
Cir. 1994) (Plaintiff must show “a real and immediate – as opposed to a merely conjectural
or hypothetical – threat of future injury.”). Although Plaintiff alleges the exacerbation of his
asthma symptoms, including coughing, wheezing, and difficulty breathing, he has not shown
a substantial threat of a real and irreparable injury that is imminent. (See doc. no. 4, p. 2.)
Plaintiff does not contend his asthma is life threatening.
Plaintiff also fails to establish the threatened injury to him outweighs whatever damage
the proposed injunction may cause the opposing party and the injunction would not be adverse to
the public interest. Although Plaintiff contends there would be “minimal if any burden” on
Defendants to comply with his requests and “[f]ailure to provide/accommodate injunctive relief

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requested, [sic] is in itself contrary to public interest,” these conclusory allegations do not
establish the need for an injunction. (Id.) Simply put, the law is well settled that federal courts
should refrain from unwarranted interference in the day-to-day operations of prisons absent
extraordinary circumstances not present here. See Bell v. Wolfish, 441 U.S. 520, 547 (1979).
Requiring prison officials to house Plaintiff in an air-conditioned dorm and provide a container
for his CPAP would be such an unwarranted interference. Plaintiff’s failure to meet his burden
as to these requisites necessitates a denial of his motion.
III.

CONCLUSION
For the reasons set forth above, the Court REPORTS and RECOMMENDS that

Plaintiff’s motion for a preliminary injunction and/or protective order be DENIED AS
MOOT. (Doc. nos. 4-1, 4-2.)
SO REPORTED and RECOMMENDED this 21st day of September, 2016, at
Augusta, Georgia.

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