Balcar v. Smith et al
Filing
25
MEMORANDUM OPINION AND ORDER by Senior Judge Thomas B. Russell granting Plaintiffs' motion for extension of time (DN 18 ) and denying Plaintiffs' motion for preliminary injunction (DN 8 ). cc: Counsel, plaintiffs pro se(JAC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
YALE LARRY BALCAR et al.
v.
PLAINTIFFS
CIVIL ACTION NO. 3:16-CV-P599-TBR
AARON SMITH et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon a motion for a preliminary injunction (DN 8) and a
motion for an extension of time to file a reply (DN 18) by Plaintiffs Yale Larry Balcar and Carl
J. Perry, Jr., convicted prisoners currently incarcerated at Kentucky State Reformatory (KSR).
For the following reasons, Plaintiffs’ motion for an extension of time will be granted and their
motion for a preliminary injunction will be denied.
I. MOTION FOR EXTENSION OF TIME TO FILE A REPLY
This 42 U.S.C. § 1983 civil rights action was initiated on September 12, 2016. Although
Plaintiffs have been granted leave to proceed in forma pauperis, this action has not yet been
screened pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.
1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007), and no Defendant has
been served.
On October 14, 2016, Plaintiffs filed the motion for a preliminary injunction that is now
before the Court. The Court then ordered Defendants to file a response to the motion within 14
days and for Plaintiffs to file a reply within seven days of service of Defendants’ response.
Defendants filed a response on November 17, 2016 (DN 12), and an amended response on
November 18, 2016 (DN 17). On November 21, 2016, Plaintiffs filed a motion for an extension
of time to file a reply (DN 18) “due to the prison mail system.” Plaintiffs then filed their reply
on November 25, 2016 (DN 19), and a reply to the amended response on December 1, 2016
(DN 22).
Upon review, the Court will grant Plaintiffs’ motion for an extension of time to file a
reply and will consider the arguments made in each of the above-mentioned filings in its analysis
of the motion for a preliminary injunction.
II. SUMMARY OF MOTION FOR A PRELIMINARY INJUNCTION
In their motion for a preliminary injunction, Plaintiffs ask the Court to order KSR
Warden Aaron Smith “to cease his demolition on two dorms at this time and more on a later
date.” Plaintiffs state as follows:
[It has] come to [their] attention that KSR is going to do this demolition at night
because they do not want to bring in Asbestos Clean Up Teams. KSR has the
demolition equipment on site and ready to start demolition at any time. Also they
are digging a big hole at this time to bury the building that is full of asbestos.
Plaintiffs contend that Defendants are violating state and federal law by conducting this
demolition without an “asbestos team for environment safety.” Plaintiffs state that they will
suffer irreparable harm to their health if the Court does not grant a preliminary injunction.
Plaintiffs attach to their motion a jointly signed affidavit which avers:
This case is about the way asbestos and the way KSR want to hide the true. They
want to tear down the building at night because they do want a team to remove the
asbestos right. As of the Oct. 11-2016, [KSR is] digging a big hole to put the
building in. They are ready to start tearing down the building at any time. The
Plaintiffs has proof of asbestos here at KSR.
(DN 8-1).1
In Defendants’ response, they argue that Plaintiffs are not entitled to preliminary
injunctive relief. In support of their motion, Defendants attach an affidavit from Mr. Chris
Kleymeyer, the Division Director in the Office of Adult Institutions with Kentucky Department
1
Plaintiffs have also attached a handwritten exhibit (DN 8-2) to their motion which seems to contain information
wholly unrelated to their motion for a preliminary injunction, and, thus, the Court will not consider it.
2
of Corrections (KDOC)(DN 12-1). In his affidavit, Mr. Kleymeyer states that KDOC has
requested permission to tear down several dormitories at KSR but that, to date, the
Commonwealth Kentucky Finance and Administration Cabinet has not granted permission for
the dormitories to be demolished.
A. LEGAL STANDARD
The Court must balance four factors in deciding whether to issue a preliminary
injunction: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether
the movant would suffer irreparable injury without the injunction; (3) whether issuance of the
injunction would cause substantial harm to others; and (4) whether the public interest would be
served by issuance of the injunction.” City of Pontiac Retired Emples. Ass’n v. Schimmel, 751
F.3d 427, 430 (6th Cir. 2014) (en banc) (internal quotation marks omitted). The four preliminary
injunction factors are “‘factors to be balanced, not prerequisites that must be met.’” Michael v.
Futhey, No. 08-3932, 2009 U.S. App. LEXIS 28217, at *93-94 (6th Cir. Dec. 22, 2009) (quoting
Six Clinics Holding Corp., II v. Cafcomp Sys., 119 F.3d 393, 400 (6th Cir. 1997)). Nonetheless,
it remains that the hallmark of injunctive relief is a likelihood of irreparable harm. Patio
Enclosures, Inc. v. Herbst, 39 F. App’x 964, 967 (6th Cir. 2002) (“[T]he demonstration of some
irreparable injury is a sine qua non for issuance of an injunction.”); see also Winter v. Natural
Res. Def. Council, 555 U.S. 7, 22-23 (2008) (rejecting the notion that a mere “possibility” of
irreparable injury was sufficient for a preliminary injunction and holding that “plaintiffs seeking
preliminary relief [are required] to demonstrate that irreparable injury is likely in the absence of
an injunction”) (emphasis added in the original). Additionally, “a finding that there is simply no
likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam’rs, 225
F.3d 620, 625 (6th Cir. 2000).
3
Plaintiffs bear the burden of demonstrating their entitlement to a preliminary injunction,
and their burden is a heavy one. Injunctive relief is “an extraordinary remedy which should be
granted only if the movant carries his or her burden of proving that the circumstances clearly
demand it.” Overstreet v. Lexington-Layette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th. Cir.
2002); see also Winter, 555 U.S. at 24. Indeed, the “proof required for the plaintiff to obtain a
preliminary injunction is much more stringent than the proof required to survive a summary
judgment motion.” Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Further, where a
prison inmate seeks an order enjoining state prison officials, this Court is required to proceed
with the utmost care and must be cognizant of the unique nature of the prison setting. See
Kendrick v. Bland, 740 F.2d 432, 438, n.3 (6th Cir. 1984).
B. ANALYSIS
Based upon the record now before the Court and the aforementioned factors, the Court
finds that Plaintiffs’ request for preliminary injunctive relief should be denied. At this early
stage of the litigation, Plaintiffs have not shown that they are likely to succeed on the merits of
their claim with regard to the demolition of buildings at KSR. To succeed on an Eighth
Amendment claim, Plaintiffs must show that Defendants were deliberately indifferent to the
health or safety of the inmates. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). More
specifically, for injunctive relief, Plaintiffs “must show that the defendants were, at the time of
the suit, ‘knowingly and unreasonably disregarding an objectively intolerable risk of harm and
that they will continue to do so.’” Laube v. Haley, 234 F.Supp. 2d 1227, 1242 (M.D. Ala.
2002) (quoting Farmer, 511 U.S. at 846); see also Boussum v. Scutt, No. 09-12929, 2010 U.S.
Dist. LEXIS 21760 (E.D. Mich. Feb. 16, 2010).
4
Much of Plaintiffs’ replies are devoted to describing their alleged exposure to asbestos at
KSR but are unrelated to their specific request for preliminary injunctive relief regarding the
demolition of buildings. For example, Plaintiffs write:
KSR Dorms, Kitchen, and all other buildings [are] full of asbestos . . . floating in
the air where [Plaintiffs] and all prisoners can inhale the asbestos. This is routine
exposure to asbestos and a genuine health hazard and is deliberately indifference
to [Plaintiffs] and all prisoners to asbestos. Medical department is not treating
asbestos cases and is not testing for asbestos lung cancer.
Plaintiffs further state that there is “friable asbestos or asbestos dust in the heating duct work,
steam pipe, floor, walls . . . and that the Warden and DOC Commissioner know about the freefloating asbestos fibers in the KSR prison environment.” Plaintiffs then claim that they both
have asthma and other respiratory problems and explain how prolonged exposure to asbestos will
cause them cancer. They argue that this information shows that Defendants are violating their
Eighth Amendment rights.
All of the above are simply allegations at this juncture. Plaintiffs have produced no
evidence which supports the granting of a preliminary injunction. In addition, these allegations
are wholly unrelated to Plaintiffs’ specific request for injunctive relief – to stop the demolition of
certain dormitories at KSR. Other than an affidavit which states their “belief” that KSR is going
to demolish certain dormitories at night because it does not want to remove the asbestos in them
“right,” Plaintiffs have not produced any evidence which establishes that Defendants are
“knowingly and unreasonably disregarding an objectively intolerable risk of harm” with regard
to the future demolition of these dormitories. In addition, Plaintiffs’ statements that they will
produce evidence at trial that Defendants are going to violate state and federal law when they
demolish these buildings are not sufficient to support the granting of a preliminary injunction.
5
Moreover, with regard to irreparable harm, Plaintiffs must show that “they will suffer
actual and imminent harm rather than harm that is speculative or unsubstantiated” if the
injunction does not ensue. Abney v. Amgen, 443 F.3d 540, 552 (6th Cir. 2006). Here, Plaintiffs
have failed to submit any evidence which shows that they are likely to suffer irreparable injury if
the Court does not issue an order preventing certain dormitories at KSR from being demolished.
Furthermore, Defendants have submitted an affidavit from a state official stating that although
the KDOC has requested permission to tear down several dormitories at KSR, the state has not
yet granted KDOC permission for such. Thus, at this juncture, Plaintiffs’ claimed irreparable
harm is only speculative.
Finally, the third and fourth factors the Court must consider also weigh against granting
preliminary injunctive relief. It is generally in the best interests of all if courts refrain from
becoming involved in day-to-day prison operations. Moreover, the Court’s intervention in
internal prison operations without an urgently compelling and extraordinary reason is viewed as
against the public interest. Lang v. Thompson, No. 5:10-CV-379, 2010 U.S. Dist. LEXIS
126890, at *19 (E. D. Ky. Nov. 30, 2010) (“[J]udicial interference is necessarily disruptive, and
absent a sufficient showing of a violation of constitutional rights, the public welfare suffers if
such extraordinary relief is granted in the prison context.”).
III. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs’ motion for an
extension of time to reply to Plaintiff’s response to the motion for a preliminary injunction
(DN 18) is GRANTED and Plaintiffs’ motion for a preliminary injunction (DN 8) is DENIED.
Date:
December 19, 2016
cc: Plaintiffs, pro se
Counsel of Record
4413.011
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?