Odom v. Pheral et al

Filing 25

MEMORANDUM & ORDER denying 5 Motion for TRO; denying 5 Motion for Preliminary Injunction. Signed by Senior Judge Thomas B. Russell on 8/27/2012. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH

GLENN D. ODOM II

PLAINTIFF

v.

CIVIL ACTION NO. 5:12CV-P73-R

GARY PHERAL et al.

DEFENDANTS

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff Glenn D. Odom III’s pro se motion for a
temporary restraining order (TRO) and preliminary injunction. For the reasons that follow, the
motion will be denied.
I.
In his motion, Plaintiff alleges that Defendant Kentucky State Penitentiary (KSP) Officer
Gary Pheral, law librarian, has removed legal documents that Plaintiff sent for copying; refuses
to provide Plaintiff laws to view; sends Plaintiff incorrect requested statutes and laws; refuses to
copy documents marked as exhibits in his civil actions; and disorganizes “lengthy legal
documents that I send for copies then writing ‘you need to reorganize your legal papers’ while
denying me the copies.” He reports having written Defendant Pheral about these problems as
well as having written letters to Pheral’s supervisors, KSP Defendants Program
Director/Grievance Coordinator Skyla Grief, Deputy Wardens Alan Brown and Joel Dunlap, and
Warden Philip Parker and Defendant Kentucky Department of Corrections Commissioner
LaDonna Thompson. Plaintiff reports that he has two actions pending in the U.S. District Court
for the Southern District of Indiana; two actions pending in the Lyon County state court; one
post-conviction (RCr 11.42) motion pending in Jefferson Circuit Court; and two actions pending

in the U.S. District Court for the Eastern District of Kentucky. He alleges that none of his
actions are frivolous and “nearly all involve serious physical injury.” Plaintiff seeks a temporary
restraining order “requiring defendants to provide Plaintiff with all guarantees listed in C.P.P
14.4 and I.P.P 14-04-01” and a preliminary injunction “requiring defendants to set measures in
place that ensure C.P.P 14.4 and I.P.P 14-04-01 are being carried out.” In a proposed order
attached to his motion, Plaintiff requests an order directing Defendants to provide him with legal
copies of exhibits to civil actions; to provide him with “requested laws, statutes, and ACA
Standards to view”; to stop opening privileged and confidential mail outside his presence; to stop
removing legal documents/evidence; and to stop “disorganizing legal documents sent for copies
leaving over one hundred (100) pages in disarray.” He additionally asks for full access to the
law library and legal copies.
II.
To determine whether to grant a TRO or a preliminary injunction, a district court must
consider: (1) whether the movant has a “strong” likelihood of success on the merits; (2) whether
the movant would otherwise suffer irreparable injury; (3) whether its issuance would cause
substantial harm to others; and (4) whether the public interest would be served by its issuance.
Summit Cnty. Democratic Cent. and Exec. Comm. v. Blackwell, 388 F.3d 547, 550 (6th Cir.
2004); Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d
318, 322 (6th Cir. 1997). These factors are not “rigid and unbending requirements,” as there is
no “fixed legal standard” in determining whether to issue an injunction. In re: Eagle-Picher
Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992). “Despite the overall flexibility of the test for
preliminary injunctive relief, and the discretion vested in the district court, equity has

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traditionally required such irreparable harm before an interlocutory injunction may be issued.”
Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 103 (6th Cir. 1982).
As to the irreparable-harm determination, there must be an actual, viable, presently existing
threat of serious harm. Mass. Coal. of Citizens with Disabilities v. Civil Def. Agency and Office
of Emergency Preparedness of the Commonwealth of Mass., 649 F.2d 71, 74 (1st Cir. 1981).
The plaintiff must show harm that is not remote or speculative, but is actual and imminent.
Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). The injury must be of such imminence
that there is a clear and immediate need for relief in order to prevent harm. See Wisconsin Gas
Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669, 674 (D.C. Cir. 1985).
Here, Plaintiff has shown neither a likelihood of success on the merits for the purposes of
being granted immediate relief nor irreparable harm. It is well established that prisoners have a
constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977).
However, in order to state a viable claim for interference with his access to the courts, a plaintiff
must show “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996). No actual injury occurs
without a showing that such a claim “has been lost or rejected, or that the presentation of such a
claim is currently being prevented.” Id. at 356. While Plaintiff has alleged that he has multiple
pending actions in various courts that are not frivolous, he does not provide specific facts (much
less evidence) showing that any of those actions are currently being hindered or about to be
dismissed due to actions of Defendants. “[T]he 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). Plaintiff simply
alleges in a conclusory fashion that his inability “to receive legal copies or view laws [] will,

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undoubtedly, cause many, if not all, my criminal and civil cases to be dismissed.” “The
speculative nature of [Plaintiff’s] claim of future injury requires a finding that this prerequisite of
equitable relief has not been fulfilled.” City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)
(remedy of preliminary injunction is unavailable absent showing of irreparable injury).
For these reasons, IT IS ORDERED that the motion for TRO and preliminary injunction
(DN 5) is DENIED.
Date:

August 27, 2012

cc:

Plaintiff, pro se
Defendants
General Counsel, Justice & Public Safety Cabinet, Office of Legal Counsel
4413.005

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