Enyart v. Ohio Department of Rehabilitation and Corrections et al

Filing 17

REPORT AND RECOMMENDATIONS that the 2 MOTION for Preliminary Injunction filed by Richard E Enyart, Jr be denied. Objections to R&R due w/in fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 7/22/2016. (kk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Richard E. Enyart, Jr.,

:

Plaintiff,

:

v.

: Case No. 2:16-0161

: CHIEF JUDGE EDMUND A. SARGUS, JR.
Ohio Department of
Magistrate Judge Kemp
Rehabilitation and Correction,
et al.,
:
Defendants.

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff Richard Enyart, an inmate who resides at the
Toledo Correctional Institution, filed this 42 U.S.C. §1983
action against the Ohio Department of Rehabilitation and
Correction; Gary Mohr, its Director; Brian Wittrup, the Director
of Classification for ODRC; and John Coleman, the Warden at Mr.
Enyart’s institution.

He alleges in his complaint (and his

amended complaint) that he is at risk of being assaulted because
the Defendants refuse to assign him a permanent single cell
(although, at the time he filed the complaint, he was housed
alone in a double cell).

He moved for preliminary injunctive

relief which, if granted, would prevent Defendants from assigning
him a cellmate.

Defendants oppose the motion.

For the following

reasons, the Court will recommend that the motion be denied.
II.

Background

This case involves an issue about how the permanent single
cell assignment policy of the Ohio Department of Rehabilitation

and Correction operates.

It is helpful to begin with a summary

of that policy.
Policy 55-SPC-01, effective on January 15, 2016, says the
following.

Its purpose is “to make available single occupancy

cells for inmates who would not be appropriately housed in
multiple cells/rooms.”

Reasons for placement in a single cell

include “permanent or long term medical disabilities, permanent
or long term mental health issues, the likelihood that the inmate
would prey on other inmates in multiple cell/room assignments or
for inmates who have other special needs for single housing on a
long term basis.”

An inmate might also be provided with a single

cell assignment if the inmate is “likely to be exploited or
victimized by others ....”

The assessment under the regulation

is described as a matter for “professional assessment,
correctional judgment and all other relevant information
available at the time.”

The policy then explains the procedure

to be followed for making single cell assignments.
According to the amended complaint (which is not verified),
Richard Enyart is an inmate serving a 365-year sentence for what
he describes as “alleged misconduct with minor children.”

While

a pretrial detainee in 2007, he was assaulted at the Franklin
County Jail.

After sentencing, he was placed in protective

control by the Ohio Department of Rehabilitation and Correction
and housed first at the Southern Ohio Correctional Facility and
then at the Toledo Correctional Institution.

At those

facilities, he was never assigned a cellmate.
In 2012, Plaintiff was sent to the Allen Oakwood
Correctional Institution.

While there, he was assigned a

cellmate, Mark Stallings, who assaulted him twice, leading to a
different cell assignment.

In 2014, while housed with a

different cellmate, he was threatened with an attack from the
Aryan Brotherhood, but the attack never materialized.
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In late

2015, he was reassigned to Toledo and told that he would be given
a cellmate.

He was provided with a list of potential cellmates

and asked to pick one.

The complaint does not allege that any of

the listed individuals had made threats to Mr. Enyart, but he
alleges that he “lives in constant fear of whom the Defendants
may place in the cell with him.”

He asserts that under the

applicable policy, he qualifies for single cell placement because
of the well-documented history of attacks and threats against
him.
In support of their opposition to the motion, Defendants
have submitted an affidavit from John Coleman, the Warden of the
Toledo Correctional Institution.

Mr. Coleman’s affidavit (which

contains the only sworn testimony in the record) recites the
following facts.
First, Mr. Coleman’s duties include ultimate responsibility
for the safety of prisoners within the institution.

Second, he

is aware that Mr. Enyart has been at Toledo and has been in
protective control for his entire time at Toledo.
Enyart does not currently have a cellmate.

Third, Mr.

Fourth, he recalls

Mr. Enyart’s telling him of the 2012 assault at Allen Oakwood
(Mr. Coleman was the warden there in 2012).

He also recalls Mr.

Enyart’s telling him of the threat from inmate Teagarden,
although he says he saw no evidence to corroborate Mr. Enyart’s
statement.
According to Mr. Coleman, there are no level three
protective custody inmates at Toledo who are assigned permanent
single cell status.

Mr. Coleman is not aware of any current

threat against Mr. Enyart.

Other sex offenders like Mr. Enyart

are not given single cells because there is no automatic
presumption that such inmates are going to be targeted or preyed
upon by other inmates.
III.

Discussion
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This is a sparse record from which to make a determination
about whether to grant a preliminary injunction.

Particularly

from the plaintiff’s side, the absence of any sworn statement
significantly undercuts his motion.

He has the burden of proof

as to the factual basis of the motion, including the prospect of
immediate and irreparable injury.

See, e.g., Overstreet v.

Lexington-Fayette Urban County Government, 305 F.3d 566, 573 (6th
Cir. 2002)(“A preliminary injunction is an extraordinary remedy
which should be granted only if the movant carries his or her
burden of proving that the circumstances clearly demand it”).
Nevertheless, since Defendants have not raised that specific
objection, the Court will analyze his motion as if Mr. Enyart had
provided some factual support for the matters alleged in the
complaint.
As this Court said in 111 Debt Acquisition LLC v. Six
Ventures Ltd., 2008 WL 3874630, *3 (S.D. Ohio Aug. 15, 2008):
Fed.R.Civ.P. 65 permits a party to a suit to seek
injunctive relief if he believes he will suffer
irreparable harm or injury. The decision whether or not
to issue a preliminary injunction falls within sound
discretion of the district court. Friendship Materials,
Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th
Cir.1982). The trial court, however, should grant this
extraordinary remedy only after it has carefully
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. Michigan High Sch. Athletic Ass'n,
119 F.3d 453, 459 (6th Cir.1997) (en banc ), quoting
Sandison v. Michigan High Sch. Athletic Ass'n, 64 F.3d
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1026, 1030 (6th Cir.1995)). These four considerations
are not required elements of a conjunctive test but are
rather factors to be balanced. Michigan Bell Tel. Co.
v. Engler, 257 F.3d 587, 592 (6th Cir.2001) (no single
factor is determinative.); Monongahela Power Co. v.
Schriber, 322 F.Supp.2d 902, 918 (S.D.Ohio 2004).
“The purpose of a preliminary injunction is always to
prevent irreparable injury so as to preserve the
court's ability to render a meaningful decision on the
merits.” United Food & Commercial Workers Union, Local
1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d
341, 348 (6th Cir.1998) (citing Stenberg v. Cheker Oil
Co., 573 F.2d 921, 925 (6th Cir.1978)). This
“traditional preliminary injunctive standard-the
balancing of equities-applies to motions for mandatory
preliminary injunctive relief as well as motions for
prohibitory preliminary injunctive relief.” Id.
Here, Defendants correctly point out that the key
constitutional issue is whether, by denying Mr. Enyart a
permanent single cell, they are demonstrating deliberate
indifference to a serious risk of physical harm.
Farmer v. Brennan, 511 U.S. 825 (1994).

See generally

In the specific context

of threats of harm posed by other inmates, the Court of Appeals
has recognized the duty of prison officials to protect inmates
against assault at the hands of other inmates.

See Wilson v.

Yaklich, 148 F.3d 596, 600 (6th Cir. 1998) (“Without question,
prison officials have an affirmative duty to protect inmates from
violence perpetrated by other prisoners”).

At the same time,

however, it is generally the case that officials, in order to be
liable under the Eighth Amendment, must be aware of a specific
threat to either the plaintiff, or to a class of persons to which
the plaintiff belongs, and there must be objective evidence
substantiating that threat; that is, the risk of harm “must be
based upon more than [the inmate’s] subjective fear.”

Browning

v. Pennerton, 633 F.Supp.2d 415, 430 (E.D. Ky. 2009).
The Court agrees with Defendants that Mr. Enyart has not, in

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his preliminary injunction motion, met his burden of proving
either a likelihood of success on the merits or that he will be
irreparably injured if his motion is not granted.

He has pleaded

no facts indicating that any of the suggested cellmates have made
threats to harm him.

He has also pleaded no facts suggesting

that he has been threatened by any inmate currently housed either
at his institution or in the protective custody unit.

The fact

that, while at a different correctional institution, he was
assaulted once (four years ago) and threatened (two years ago),
neither of which events were even allegedly based on his status
as a sexually-oriented offender, simply does not support the
claim that he would be at risk if he received a cellmate who,
like him, is being housed in protective custody.

He has

presented no evidence of systemic threats to the safety of
protective custody inmates at his institution who are doublecelled, nor any evidence that all or substantially all inmates
serving sentences for crimes like his are routinely assaulted or
threatened with harm.

The only factual information in the record

- Warden Coleman’s affidavit - says just the contrary.
Consequently, there is no basis on which the Court could conclude
that Mr. Enyart has shown an entitlement to a preliminary
injunction.

For these reasons, it will be recommended that his

motion (Doc. 2) be denied.
IV.

Recommendation

For the reasons set forth above, the Court recommends that
the motion for preliminary injunction (Doc. 2) be denied.
V.

Procedure on Objections

If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
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A judge

of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver 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); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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