Tolliver v. Collins et al

Filing 143

REPORT AND RECOMMENDATIONS re 133 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction: The Magistrate Judge RECOMMENDS that Plaintiff's Motions be DENIED. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/29/2011. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN A. TOLLIVER, et al.,
Plaintiffs,
Civil Action 2:08-cv-722
Judge Edmund A. Sargus, Jr.
Magistrate Judge E.A. Preston Deavers

v.

TERRY COLLINS, Director
O.D.R.C., et al.,
Defendants.

REPORT AND RECOMMENDATION
This is a civil rights action in which Plaintiff, Kevin A. Tolliver, an Ohio inmate
proceeding without the assistance of counsel, alleges that Defendants1 exposed him, against his
will, to secondhand smoke in violation of his rights under the Eighth and Fourteenth
Amendments to the United States Constitution. This matter is before the Court for consideration
Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 133.)
For the reasons that follow, it is RECOMMENDED that Plaintiff’s Motion be DENIED.

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Plaintiff Tolliver names in his Complaint the following Defendants in their individual
and official capacities: Terry Collins, Director of Ohio Department of Rehabilitation and
Correction (“ODRC”); Michael Sheets, Warden of Ross Correctional Institute (“RCI”); Charlene
Payne, RCI’s Unit Manager for Inmate Housing Facility Number Seven, which was a nonsmoking facility at the time this action was filed; and unnamed corrections officers and staff
members. (Tolliver Compl. ¶¶ 5, 13–17, 32.)

I.
On August 6, 2008, Plaintiff filed the instant action, asserting an Eighth Amendment
claim against Defendants based on his alleged involuntary exposure to high levels of
environmental tobacco smoke (“ETS”). More specifically, Plaintiff alleges that he was
involuntarily exposed to secondhand smoke even though he was housed in a “Tobacco Free
Housing” unit at Ross Correctional Institute (“RCI”). Plaintiff alleges that Defendants’
deliberate indifference resulted in his injury and subjected him to risk of violence from inmates
who smoked in his unit and in the common areas. Plaintiff further alleges that he complained
about the secondhand smoke for two years and exhausted his administrative remedies prior to
filing this action.
On September 2, 2011, Plaintiff filed the subject Motion for Temporary Restraining
Order and Preliminary Injunction. Plaintiff speculates that he has been the victim of retaliation
for filing the instant suit because he was transferred from RCI to Belmont Correctional
Institution. His motion contains a laundry list of requests, including assistance in having his
typewriter fixed, guaranteed kosher meals, oversight of his medical care, and transfer to the
prison of his choice. Plaintiff asserts that if his Motion is not granted, “he will suffer extreme
prejudice to his ability to litigate . . . and other constitutional violations will occur.” (Pl.’s Mot.
3, ECF No. 133.)
II.

STANDARD

Plaintiff requests a temporary restraining order and a preliminary injunction. Federal
Rule of Civil Procedure 65(a) and (b) permit a party to seek injunctive relief when the party
believes it will suffer immediate and irreparable injury, loss, or damage. Fed. R. Civ. P. 65(a)

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and (b). Because Defendants were on notice of and responded to Plaintiff’s Motions, the
Motions are properly treated as ones for a preliminary injunction. See First Tech. Safety Sys.,
Inc. v. Depinet, 11 F.3d 641, 650 (6th Cir. 1993).
A district court considering the extraordinary remedy of a preliminary injunction must
consider and balance the following four factors:
(1) whether the movant has shown a strong likelihood of success on the merits;
(2) whether the movant will suffer irreparable harm if the injunction is not issued;
(3) whether the issuance of the injunction would cause substantial harm to others;
and (4) whether the public interest would be served by issuing the injunction.

Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 573 (6th Cir. 2002) (citing
Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). “These factors are not prerequisites, but
are factors that are to be balanced against each other.” Id. “Although no one factor is
controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.”
Gonzales v. National Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000) (citation omitted);
see also Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997) (“While, as a
general matter, none of these four factors are given controlling weight, a preliminary injunction
issued where there is simply no likelihood of success on the merits must be reversed.”).
A movant’s burden is even more difficult to satisfy where, as here, a prison inmate seeks
an injunction to obtain affirmative relief beyond maintenance of the status quo. See 18 U.S.C. §
3626(a)(2) (“In any civil action with respect to prison conditions . . . [p]reliminary injunctive
relief must be narrowly drawn, extend no further than necessary to correct the harm the court
finds requires preliminary relief, and be the least intrusive means necessary to correct that
harm.”); Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary

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injunction is merely to preserve the relative positions of the parties until a trial on the merits can
be held.”).
III.

ANALYSIS

The undersigned recommends denial of Plaintiff’s preliminary injunction motion because
the relief he seeks and the bases for that relief are unrelated to the allegations in his Complaint.
As the Supreme Court has explained, “[a] preliminary injunction is . . . appropriate to grant
intermediate relief of the same character as that which may be granted finally,” but is
inappropriate where the injunction “deals with a matter lying wholly outside of the issues in the
suit.” De Beers Consol. Mines Ltd. v. United States, 325 U.S. 212, 220 (1945). Thus, Courts
consistently deny motions for preliminary injunctions where the requested relief is unrelated to
the conduct alleged in the complaint. See, e.g., Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir.
1997) (denying preliminary injunction because “a district court should not issue an injunction
when the injunction in question is not of the same character, and deals with a matter lying wholly
outside the issues in the suit”); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (denying
preliminary injunction where the moving party failed to “establish a relationship between the
injury claimed in the party’s motion and the conduct asserted in the complaint”); Ball v.
Famiglio, 396 F. A’ppx 836, 838 (3d Cir. 2010) (denying preliminary injunction where
individuals whose conduct movant sought to enjoin were not named defendants and where most
of the relief requested was unrelated to allegations in complaint).
Here, the bases on which Plaintiff seeks a preliminary injunction are unrelated to the
claim raised in his Complaint regarding his alleged involuntary exposure to secondhand smoke.
Indeed, the individuals from whom Plaintiff seeks relief are not named as defendants in this

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action. The only request arguably related to Plaintiff’s Complaint is his request for medical
treatment for conditions arising from or exacerbated by his alleged exposure to secondhand
smoke. With respect to this request, however, Plaintiff has failed to establish a likelihood of
success on the merits or any risk of irreparable harm. Rather, Defendant has offered
uncontroverted evidence establishing that Plaintiff has received and his receiving chronic
medical care for his pulmonary condition. (See Weidman Decl. ¶¶ 5–7, ECF No. 136-2.) For
these reasons, it is RECOMMENDED that Plaintiff’s Motion for Temporary Restraining Order
and Preliminary Injunction be DENIED. (ECF No. 133.)
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

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magistrate judge's report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: December 29, 2011

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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