Advocacy Center v. Cain et al

Filing 4

RULING denying 2 Motion for Temporary Restraining Order. Hearing on the Motion for a Preliminary Injunction is hereby scheduled for Tuesday, August 28, 2012, at 9:30 a.m. in Courtroom 2 of the Russell B. Long Courthouse in Baton Rouge Louisiana. Signed by Chief Judge Brian A. Jackson on 8/20/2012. (PJH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
ADVOCACY CENTER
CIVIL ACTION
VERSUS
NO. 12-508-BAJ-SCR
JAMES M. LEBLANC, SECRETARY
OF THE LOUISIANA DEPARTMENT
OF PUBLIC SAFETY AND CORRECTIONS
AND BURL CAIN, WARDEN OF THE
LOUISIANA STATE PENITENTIARY

RULING AND ORDER
This matter is before the Court on motions by plaintiff, Advocacy Center, for
a temporary restraining order as prayed for in the complaint and for a preliminary
injunction (docs. 2 & 3, respectively).1

The complaint prays for a temporary

restraining order “requiring Defendants to immediately provide Plaintiff access to the
requested records, as set forth in paragraph 19 of this complaint” (doc. 1, p. 10).
Paragraph 19 of the complaint seeks: (1) Any and all documents pertaining to the
temperature on Death Row for the months of June through September for the last
3 years; (2) Any and all policies that describe efforts to ameliorate excessive heat
on Death Row; (3) Daily population logs listing the name, date of birth, and any
identified medical condition of every person housed on Death Row between June 1,
2009, and the present; (4) All requests for medical and mental health services
completed by Death Row residents from January 1, 2009 until the present; (5) All

1

Plaintiff has alleged facts to establish standing under federal law (see, doc. 2, pp. 1-2)

administrative grievance forms related to excessive temperature completed by Death
Row residents from January 1, 2009 until the present. (Id. at ¶ 19).
In support of the motion for a temporary restraining order, plaintiff asserts that
it has probable cause to believe that defendants “are subjecting prisoners with
disabilities on Death Row to neglect and abuse by failing to take adequate steps to
prevent them from being exposed to excessive heat, particularly during the summer
months” (doc. 2, p. 2). Plaintiff asserts that its attorneys have a broad right of
access under federal law to inmates “for the purpose of investigating allegations of
abuse and neglect, monitoring facility conditions and providing protection and
advocacy services to specific prisoners” (id.). Plaintiff further alleges that defendants
have denied such access by refusing to: (1) Allow plaintiff’s attorneys to visit Death
Row while accompanied by Dr. Susi Vassallo, Clinical Associate Professor of
Emergency Medicine, NYU School of Medicine; (2) Allow plaintiff’s attorneys to take
a hydrometer into the prison; and (3) Respond to requests for relevant documents
(id.).
"Injunctive relief is an extraordinary and drastic remedy,' and should only be
granted when the movant has clearly carried the burden of persuasion." Anderson
v. Jackson, 556 F.3d 351, 360 (5th Cir. 2009) (quoting, Holland Am. Ins. Co. v.
Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1974)). "The party seeking such
relief must satisfy a cumulative burden of proving each of the four elements
enumerated before a temporary restraining order or preliminary injunction can be
granted." Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987). "Specifically, the
2

movant must show: (1) a substantial likelihood that plaintiff will prevail on the merits,
(2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not
granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the
injunction may do to defendant, and (4) that granting the preliminary injunction will
not disserve the public interest." Holland Am. Ins. Co., 777 F.2d at 997 (quoting,
Canal Auth. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974)).
Plaintiff alleges that the issue of heat on Death Row was originally brought to
its attention upon its receipt of a letter on or about May 17, 2012.

According to

plaintiff, the letter was sent by an attorney who had contacted defendant, Cain, about
the temperature issue in April. Plaintiff first requested the subject documents in a
letter to Warden Cain, dated July 31, 2010. Upon receiving no response to the letter,
plaintiff’s attorney placed a call to the warden’s office and was told that Dr. Vasallo would
not be allowed to interview inmates and plaintiff would not be allowed to take the
hydrometer into the penitentiary.2 (Id. at pp. 4-7).
Plaintiff asserts that, “[w]ithout access to the facility with qualified medical personnel
and appropriate equipment, such as a hydrometer, and access to the records requested,
no determination can be made regarding whether prisoners on Death Row are being
subjected to neglect and abuse by virtue of excessive heat, and therefore, no protection
and advocacy assistance can be provided” (id. at p. 7). Plaintiff further asserts that time
is of the essence because “[t]he summer months are fast winding down and fall is fast

approaching” (id. at p. 10).
2

The motion does not mention specifically whether the request for documents was
discussed at that time.
3

The Court, having reviewed the record, concludes that plaintiff has failed to carry
its burden to establish that there exists a substantial threat that plaintiff will suffer

irreparable injury if a temporary restraining order is not granted. Plaintiff’s motion
concedes that plaintiff has been aware of the issue for about three months and
sought the records from defendants for approximately three weeks before the filing
of this suit, and plaintiff’s only stated concern regarding the need for prompt
injunctive relief is that the “[t]he summer months are fast winding down and fall is fast
approaching.” Moreover, the motion for a temporary restraining order seeks only the

production of documents, yet plaintiff concedes that access to records alone is
insufficient for it to properly perform its function.3
Accordingly, the motion for a temporary restraining order (doc. 2) is DENIED.,
IT IS ORDERED that a hearing on the motion for a preliminary injunction is
hereby scheduled for Tuesday, August 28, 2012, at 9:30 a.m. in Courtroom 2 of the
Russell B. Long Courthouse in Baton Rouge Louisiana.
Baton Rouge, Louisiana, August 20, 2012.

______________________________
BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

3

See previous paragraph quoting page 7 of the motion in which plaintiff stated that
“[w]ithout access to the facility with qualified medical personnel and appropriate equipment,
such as a hydrometer, and access to the records requested, no determination can be made
regarding whether prisoners on Death Row are being subjected to neglect and abuse by virtue of
excessive heat, and therefore, no protection and advocacy assistance can be provided."
(Emphasis added).
4