Clemons v. Lombardi et al

Filing 8

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that plaintiff's motion for permanent injunction and for a temporary restraining order [ECF No. 7 ] is DENIED without prejudice. Signed by District Judge Catherine D. Perry on 04/22/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REGINALD CLEMONS,
Plaintiff,
v.
GEORGE LOMBARDI, et al.,
Defendants.

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No. 4:13CV458 CDP

MEMORANDUM AND ORDER
This matter is before me on plaintiff’s motion for permanent injunction and for
a temporary restraining order. Plaintiff, a death-sentenced prisoner, brings this action
under 42 U.S.C. § 1983 under the First Amendment for alleged violations of his right
to communicate with his attorneys in a confidential manner. The Court has required
defendants to respond to the complaint pursuant to 42 U.S.C. § 1197e(g)(2) but
defendants’ answers are not yet due. Plaintiff currently seeks a temporary restraining
order and injunction requiring defendants to release him from administrative
segregation and to allow him to conduct telephonic interviews with his attorneys and
other outside groups without the normal prison security review of telephone calls.
Having reviewed the case, I find that injunctive relief is not warranted at this time,
and I will deny the motion without prejudice.

To determine whether preliminary injunctive relief is warranted, the Court must
balance the threat of irreparable harm to movant, the potential harm to the nonmoving
party should an injunction issue, the likelihood of success on the merits, and the
public interest. Dataphase Sys. v. CL Sys., 640 F.2d 109, 113-14 (8th Cir. 1981) (en
banc).
Plaintiff is party to a multiple-plaintiff civil action in the Western District of
Missouri challenging the use of the drug Propofol for carrying out lethal injection
executions in the State of Missouri. Zink v. Lombardi, 2:12CV4209 NKL (W.D.
Mo.). The case is currently in the discovery phase.
Plaintiff alleges in his complaint before this Court that he has been disciplined
by prison officials for being on “three-way calls” while speaking with his attorneys
or other groups who may wish to file amici briefs in the Zink action. According to
plaintiff’s exhibits, “three way calls are not allowed per [Department of Corrections’]
policy.” Plaintiff’s Exh. at 1. Plaintiff believes that defendants must be listening to
his calls in order to detect the presence of a three-way call. According to plaintiff’s
exhibits, the Department of Corrections hires an outside agency, Securus, to detect
the calls, and a report of the fact of the three-way call is given to the Department. Id.
Although I have not yet seen defendants’ responsive pleadings, I am certain that

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defendants will challenge plaintiff’s version of the facts regarding the eavesdropping
of confidential and privileged communications.
Applying the Dataphase factors to this case, I find that plaintiff has not
submitted a plausible case for entering an injunction at this time. Plaintiff is
represented by qualified counsel in the Zink case. Plaintiff has not shown how he
would be irreparably harmed by engaging in only two-way, permissible calls with his
attorneys. Moreover, plaintiff has not shown that his presence in administrative
segregation will impact his attorneys’ abilities to adequately represent him.
The potential of harm to the defendants militates against issuing a temporary
restraining order or permanent injunction. This Court does not intervene with the
Department of Corrections’ supervision and discipline of prisoners in a careless
manner. I do not yet have sufficient knowledge of the facts of this case to justify
ordering the Department to change its policies or the manner in which it carries out
those policies.
For these same reasons, plaintiff has not demonstrated that he is likely to
succeed on the merits of this action.
Finally, the public has an interest in maintaining the safety and security of the
Department of Corrections’ institutions. Plaintiff has not demonstrated that his calls
justify a departure from the Department’s regular policies. In consequence, the
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motion for permanent injunction and for a temporary restraining order is denied
without prejudice.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for permanent injunction
and for a temporary restraining order [ECF No. 7] is DENIED without prejudice.
Dated this 22nd day of April, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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