Brooks v. Potter et al
Filing
24
REPORT AND RECOMMENDATION re 3 MOTION for Temporary Restraining Order: The Magistrate Judge RECOMMENDS that the Motion be DENIED. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Norah McCann King on 9/18/2013. (er1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GORDON BROOKS,
Plaintiff,
vs.
Case No. 2:13-CV-507
Judge Frost
Magistrate Judge King
MARY POTTER, et al.,
Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court for consideration of plaintiff’s
motion for interim injunctive relief, Emergency Temporary Protective
Order (“Plaintiff’s Motion”), Doc. No. 3.
The State of Ohio opposes
Plaintiff’s Motion,1 The State of Ohio’s Response in Opposition to
Plaintiff’s [Motion] (“Defendants’ Response”), Doc. No. 10, and
plaintiff has filed a reply, Doc. No. 21.
This matter is now ripe for
consideration.
I.
Standard
Rule 65 of the Federal Rules of Civil Procedure permits a party
to seek injunctive relief if he believes that he will suffer
irreparable harm or injury without such relief.
65(a), (b).
Fed. R. Civ. P.
A temporary restraining order relates only to restraints
sought without notice to the adverse party.
Id.
Where, as in the
case presently before the Court, the adverse party has been given
1
The State of Ohio filed a response to Plaintiff’s Motion because no
defendant had been served at the time a response was due. Defendants’
Response, p. 1.
1
notice, the application is properly treated as one for a preliminary
injunction.
See id.; Rios v. Blackwell, 345 F. Supp. 2d 833, 835
(N.D. Ohio 2004) (“As long as there is notice to the other side and an
opportunity to be heard, the standard for a preliminary injunction is
the same as that for a temporary restraining order.”).
The decision whether or not to grant a request for interim
injunctive relief falls within the sound discretion of the district
court.
Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100,
102 (6th Cir. 1982); Gonzales v. Nat’l Bd. of Med. Exam’rs, 225 F.3d
620, 625 (6th Cir. 2000).
An injunction, however, is an extraordinary
remedy that should be granted only after a court has considered the
following four factors:
(1) whether the movant has a “strong” likelihood of success
on the merits; (2) whether the movant would otherwise
suffer irreparable injury; (3) whether issuance of a
preliminary injunction would cause substantial harm to
others; and (4) whether the public interest would be served
by issuance of a preliminary injunction.
Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing
McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459
(6th Cir. 1997)).
balanced.
These four considerations are factors to be
In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.
1985); Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir.
2001).
However, a preliminary injunction should not issue where there
is simply no likelihood of success on the merits.
v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
Mich. State AFL–CIO
“Moreover, a district
court is not required to make specific findings concerning each of the
four factors used in determining a motion for preliminary injunction
if fewer factors are dispositive of the issue.”
2
Jones v. City of
Monroe, 341 F.3d 474, 476 (6th Cir. 2003) (citing DeLorean, 755 F.2d
at 1228).
Finally, the movant bears the burden of establishing that
“the circumstances clearly demand” this extraordinary remedy.
Overstreet v. Lexington–Fayette Urban Cnty. Gov't, 305 F.3d 566, 573
(6th Cir. 2002) (citing Leary, 228 F.3d at 739).
II.
Discussion
Plaintiff Gordon Brooks, a state inmate,2 brings this civil
rights action under 42 U.S.C. § 1983 against four employees of the
Ohio Department of Rehabilitation and Correction (“ODRC”).
The
Complaint, Doc. No. 2, alleges that, while he was incarcerated in the
Belmont Correctional Institution (“BeCI”) on October 21, 2011,
plaintiff was accused of being a “snitch” and threatened by several
inmates.
Id. at p. 2.
Plaintiff thereafter “ran straight to the
institution investigator[’]s office” and informed defendant Mary
Potter, identified in the Complaint as an investigator at BeCI, that
he had been threatened, that he had previously been an informant for
the Akron Police Department and the Federal Bureau of Investigation,
and that certain inmates were smoking marijuana.
Id. at pp. 2-3.
Defendant Potter placed plaintiff in segregation pending a protective
custody investigation and verification of plaintiff’s claimed work as
an informant.
Id. at p. 3.
Plaintiff “was seen by the Protective Control Committee” (the
“Committee”) on October 25, 2011.
Id. at p. 4.
2
The Complaint alleges
The docket reflects a current address for plaintiff at the Allen
Correctional Institution; however, motions filed on August 23 and 29, 2013 by
defendants Mary Potter and Michelle Miller represent that plaintiff is
currently incarcerated at the Toledo Correctional Institution. See Doc. Nos.
22, 23.
3
that the Committee verified plaintiff’s previous work as an informant,
noted that defendant Potter did not want plaintiff celled with inmates
from Akron, Ohio, and recommended that plaintiff be transferred to
another institution.
Id.
Plaintiff alleges that he was returned to
his cell even though he had informed the Committee that one of his
cellmates was from Akron, Ohio, and that plaintiff had “snitched on”
that inmate.
Id.
Plaintiff alleges that he was assaulted later that
same day by the two inmates with whom he shared a cell.
Id.
Plaintiff further alleges that he was transferred to the Ross
Correctional Institution (“RCI”) on May 18, 2012.
Id. at p. 5.
On
June 7, 2012, plaintiff was allegedly assaulted by inmates because he
was an informant.
Id.
On June 11, 2012, plaintiff was again seen by the Committee,
which verified that plaintiff had been an informant and had been
assaulted.
The Committee recommended that plaintiff be transferred to
yet another institution.
Id.
Plaintiff appealed this decision to
defendant RCI Warden T. Buchannon, who denied the appeal.
Id.
On
August 24, 2012, defendant Buchannon allegedly “came to plaintiff’s
cell door and stated[,] ‘I’m calling Columbus and having the decision
changed.
You are going to [protective custody] where you should have
been a long time ago.’”
Id.
Plaintiff remained in segregation until
he was transferred to the Allen Correctional Institution (“ACI”) on
November 20, 2012 and placed “in the unit designated to house inmates
in protective custody.”
Id. at pp. 5-6.
Plaintiff refused to be
celled with other inmates at ACI and was placed in segregation.
at p. 6.
4
Id.
The Complaint alleges that each defendant “knew of danger and
disregarded it which resulted in plaintiff being assaulted several
times.”
Id. at p. 7.
Defendant John Doe, who has not been served,
allegedly sent plaintiff to BeCI knowing “that plaintiff’s life would
be in danger.”
Id. at p. 6.
Defendant Potter, the BeCI investigator,
allegedly knew that plaintiff was an informant, but “failed to
designate plaintiff as a cell alone [sic] in segregation and allowed
the same inmate who plaintiff snitched on to be placed in [the] same
cell.”
Id. at p. 6.
Defendant Michelle Miller, identified as the
Warden at BeCI, allegedly knew that plaintiff was an informant and was
told by defendant John Doe “to address the issue,” but failed to place
plaintiff in protective custody and allowed three inmates to be housed
in a two-person cell.
Id.
The Complaint appears to assert claims of
deliberate indifference3 against each defendant based on a failure to
protect.
The Complaint seeks an award of damages but no injunctive
relief.
Plaintiff’s Motion anticipates plaintiff’s removal from
protective custody and placement in the general population at ACI
because of his refusal to be celled with any other inmate.
3
The Eighth Amendment to the United States Constitution prohibits the
infliction of cruel and unusual punishment. This constitutional prohibition
requires that prison officials provide to inmates adequate food, clothing,
shelter and medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To
constitute cruel and unusual punishment, conduct that does not purport to be
punishment must involve more than the ordinary lack of due care for the
prisoner’s interests or safety. Whitley v. Albers, 475 U.S. 312, 319 (1986).
Moreover, prison officials must “take reasonable measures to guarantee the
safety of inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). Prison
officials may be held liable for injuries sustained by an inmate at the hands
of other inmates only if the officials know that the inmate faced a
substantial risk of serious harm and nevertheless displayed “deliberate
indifference” to inmate health and safety. Farmer v. Brennan, 511 U.S. 825
(1994); Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004).
5
Plaintiff’s Motion, p. 2.
Plaintiff’s Motion also alleges that
plaintiff’s “life will be in grave danger” if he is removed from
protective custody.
Id. at pp. 1-2.
Accordingly, Plaintiff’s Motion
seeks an order “that plaintiff not be removed from protective custody
until this case has been disposed of.”
Id. at p. 3.
Plaintiff’s
Motion is not well taken.
As an initial matter, none of the defendants presently before the
Court is an employee at plaintiff’s current institution, whether that
institution is ACI or the Toledo Correctional Institution.
It is
therefore not apparent that any of those defendants is in a position
to effect the relief sought by Plaintiff’s Motion.
Moreover, plaintiff has failed to establish a strong likelihood
of success on the merits.
Plaintiff’s Motion fails to even address
this issue; the motion simply argues that plaintiff’s “life will be in
grave danger” if he is removed from protective custody.
Plaintiff’s Motion, p. 1.
See
Plaintiff offers no evidence in support of
this contention or of his Eighth Amendment deliberate indifference
claims, and Plaintiff’s Reply fails to address any of defendants’
numerous arguments regarding the likelihood of success on the merits,
see Defendants’ Response, pp. 4-8 (arguing that plaintiff has waived
his claims under Leaman v. Ohio Dep’t of Mental Retardation & Dev.
Disabilities, 825 F.2d 946, 951 (6th Cir. 1987), that plaintiff’s
claims are barred by res judicata, that plaintiff failed to exhaust
his administrative remedies, and that defendants are entitled to
qualified immunity).
Under the circumstances, the Court cannot
conclude that plaintiff has carried his burden of establishing a
6
“strong likelihood of success on the merits.”
See Leary, 228 F.3d at
739 (citations omitted) (“[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 . . . .”); McNeilly v.
Land, 684 F.3d 611, 615 (6th Cir. 2012) (“The party seeking the
preliminary injunction bears the burden of justifying such relief,
including showing irreparable harm and likelihood of success.”)
(citing Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423 (1974)).
Under these circumstances, plaintiff’s request for interim
injunctive relief is without merit.
See Mich. State AFL-CIO v.
Miller, 103 F.3d 1240, 1249 (6th Cir. 1997) (“While, as a general
matter, none of these four factors [is] given controlling weight, a
preliminary injunction issued where there is simply no likelihood of
success on the merits must be reversed.” ) (citing Sandison v. Mich.
High Sch. Athletic Ass'n, 64 F.3d 1026, 1037 (6th Cir. 1995))
(emphasis added).
See also Gonzales v. Nat'l Bd. of Med. Exam'rs, 225
F.3d 620, 625 (6th Cir. 2000).
Accordingly, it is RECOMMENDED that Plaintiff’s Motion, Doc. No.
3, be DENIED.
Defendants Mary Potter and Michelle Miller have filed motions to
dismiss, Doc. Nos. 22, 23.
Plaintiff may have twenty-one (21) days
from the date of this Report and Recommendation to respond to those
motions.
Plaintiff is ADVISED that his failure to respond may result
in the grant of those motions or the dismissal of the case for failure
to prosecute.
7
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
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
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Response to objections
must be filed within fourteen (14) days after being served with a copy
thereof.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that 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 of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).
September 18, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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