Murray v. Wetzel et al

Filing 31

MEMORANDUM and ORDER re Doc. 3 Motion DENIED. See order for further details.Signed by Honorable John E. Jones, III on 4/11/18. (aaa)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRAY JIBRIL MURRAY,
Plaintiff,
v.
SECRETARY JOHN E. WETZEL,
et al.,
Defendants.

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1:17-cv-1637
Hon. John E. Jones III

MEMORANDUM AND ORDER
April 11, 2018
On September 12, 2017, Bray Jibril Murray (“Murray” or “Plaintiff”), a
state inmate presently incarcerated at the State Correctional Institution at Dallas,
Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983,
accompanied by a motion for a preliminary injunction and temporary restraining
order. (Docs. 1, 3, 4). The subject of this Memorandum is Murray’s motion (Doc.
3) for a preliminary injunction and temporary restraining order.
I.

Allegations of the Complaint
Murray alleges as follows:
I am a NON-SMOKER who have NEVER consumed any kind of
tobacco products. On 8/30/2016, I arrived to SCI-DALLAS, and was
immediately placed in the Restricted Housing Unit (RHU); where it
absolutely prohibit [sic] inmates to purchase, possess and consume
any sort of tobacco products. On 9/22/2016, I was released into the
general population of SCI-DALLAS; where inmates and staff are

allowed to purchase, possess and consume/use smoking tobacco
products. There is no NON-SMOKING housing unit in SCIDALLAS. Nor is there a housing unit, where it is absolutely
prohibited for inmates to purchase, possess and consume/use
SMOKING TOBACCO products.
On 9/22/2017 [sic] I was placed on F-unit, where it houses approx.
200 inmates, because 88 of the 100 cells on unit are occupied by two
inmates at all times. Moreover, the complete absence of video
recording cameras on housing units allows inmates and staff to freely
and openly use smoking tobacco products (all day and night)
anywhere in the housing units, with impunity.
Consequently, as soon as I enters F-unit (as a resident) I was exposed
(every day and night) to extraordinarily high levels of SECONDHAND SMOKE. During the months October 2016 and January 2017,
I vigorously complained about the inordinately high levels of tobacco
smoke in housing units… None of the request to staff were answered
or received any response.
(Doc. 1, pp. 2-3). He further alleges that the exposure to “extraordinarily high
levels of second hand tobacco smoke” is “causing mental and emotional anguish
and distress, as a result of my future health being placed at grave risk and peril.”
(Id. at 3).
II.

Standard of Review
Preliminary injunctive relief is “an extraordinary remedy” that “should be

granted only in limited circumstances.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d
700, 708 (3d Cir. 2004) (citing AT&T v. Winback and Conserve Program, Inc., 42
F.3d 1421, 1426-27 (3d Cir. 1994)); see also FED. R. CIV. P. 65. “[T]o obtain a
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preliminary injunction the moving party must show as a prerequisite (1) a
reasonable probability of eventual success in the litigation, and (2) that it will be
irreparably injured ... if relief is not granted.... [In addition,] the district court, in
considering whether to grant a preliminary injunction, should take into account,
when they are relevant, (3) the possibility of harm to other interested persons from
the grant or denial of the injunction, and (4) the public interest.” Reilly v. City of
Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017) (citing Del. River Port Auth. v.
Transamerican Trailer Transport, Inc., 501 F.2d 917, 919–20 (3d Cir. 1974). A
movant must “meet the threshold for the first two ‘most critical’ factors: it must
demonstrate that it can win on the merits (which requires a showing significantly
better than negligible but not necessarily more likely than not) and that it is more
likely than not to suffer irreparable harm in the absence of preliminary relief.”
Reilly, 858 F.3d at 179. Only if these “gateway factors” are met is the court
required to consider the third and fourth factors. Id. at 176, 179. The court must
then balance all four factors to determine, in its discretion, whether the
circumstances favor injunctive relief. Id. at 179.
III.

Discussion
Murray seeks an Order directing Defendants to “Cease and Desist” the

following conduct at SCI-Dallas: 1. The trafficking and sale of smoking an non3

smoke tobacco products; 2. The introduction of any type of smoking and nonsmoke tobacco product by all employees and staff; and, 3. The purchase,
possession and use/consumption of any type of smoking and non-smoke tobacco
products. (Doc. 3, p. 1). He also seeks the removal of all smoking and non-smoke
tobacco products from SCI-Dallas. (Id.)
A.

Likelihood of Success on the Merits

The Eighth Amendment “requires that inmates be furnished with the basic
human needs, one of which is ‘reasonable safety.’ ” Helling v. McKinney, 509
U.S. 25, 33 (1993) (quoting DeShaney v. Winnebago County Dep’t of Social
Servs., 489 U.S. 189, 200 (1989)). “Liability based on exposure to ETS requires
proof of (1) exposure to unreasonably high levels of ETS contrary to contemporary
standards of decency; and (2) deliberate indifference by the authorities to the
exposure to ETS.” Helling, 509 U.S. at 35. The Supreme Court has observed that
the adoption by a prison of an anti-smoking policy “will bear heavily on the
inquiry into deliberate indifference.” Id. at 36.
ETS claims come in two varieties, present injury and future injury. Murray
emphasizes in his reply brief that he is seeking relief based on future injury. (Doc.
1, p. 4). To state a cognizable future injury claim, a plaintiff must allege that
“prison officials have exposed him, with deliberate indifference, to levels of ETS
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that pose an unreasonable risk of harm to his future health.” Atkinson v. Taylor,
316 F.3d 257, 262 (3d Cir. 2003) (citing Helling, 509 U.S. 25). Specifically, a
plaintiff must (1) objectively show that “he is being exposed to unreasonably high
levels of ETS,” contrary to contemporary standards of decency, and (2)
subjectively show that prison officials are deliberately indifferent to his exposure
to ETS. Helling, 509 U.S. at 35. To satisfy the objective element, a plaintiff “must
show that he himself is being exposed to unreasonably high levels of ETS,” and
that the complained risk to his health is considered “to be so grave that it violates
contemporary standards of decency to expose anyone unwillingly to such a risk.”
Id. The objective factor considers “a scientific and statistical inquiry into the
seriousness of the potential harm and the likelihood that such injury to health will
actually be caused by exposure to ETS.” Id. Objectively serious harm also
requires an assessment of society’s view of the risk; i.e., whether “it violates
contemporary standards of decency to expose anyone unwillingly to such a risk.”
Id. at 36. The Court must be mindful of the circumstances surrounding plaintiff's
incarceration, and whether the prison’s No Smoking Policy is “administered in a
way that will minimize the risk to [plaintiff] and make it impossible for him to
prove that he [was] exposed to unreasonable risk with respect to his future
health....” Id. The subjective component requires a showing of deliberate
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indifference. “Deliberate indifference” is more than mere malpractice or
negligence; it is a state of mind equivalent to reckless disregard of a known risk of
harm. Farmer v. Brennan, 511 U.S. 825, 837–38 (1994). “[A] prison official
cannot be held liable under the Eighth Amendment ... unless the official knows of
and disregards an excessive risk to inmate health or safety.” Id. at 837.
Murray argues that “[a]s the Court critically examine [sic] movant’s
evidence of dangerously high levels of ETS [Environmental Tobacco Smoke] in
the inmate housing units of SCI-Dallas; and more significantly, also of defendants’
deliberate indifference to deathly risk ETS pose to the future health of movant and
non-smoking inmate population, more likely than not movant’s 8th Amendment
claims will survive a motion to dismiss/summary judgment by defendants.” (Doc.
4, pp. 13, 14). In support of his motion, he submits a copy of the Pennsylvania
Department of Corrections’ (“DOC”) Clean Indoor Air Act, effective September
11, 2008, vowing to provide a smoke free environment consistent with the
Pennsylvania Clean Indoor Air Act, copies of his grievances, declarations from
two inmates indicating that they have been “allowed by staff to freely use/consume
smoking tobacco products (at any time and anywhere) in the inmate housing
units,” and declarations from six other inmates stating they “have been exposed to
extraordinarily high levels of secondhand smoke or environmental tobacco smoke
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(ETS), in the inmate housing units; because of inmates being allowed to freely use
smoking tobacco in housing units; at any time and any where they please.” (Docs.
7, 8). In opposition, Defendants “acknowledge that there is exposure to cigarette
smoke at SCI-Dallas. However, exposure does not equal medical harm or
disability.” (Doc. 24, p. 3).
The information contained in Murray’s grievances, and the inmates’
declarations indicating exposure to “extraordinarily high levels” of ETS, falls short
of what is needed to satisfy the objective component. As stated supra, this
component requires “a scientific and statistical inquiry into the seriousness of the
potential harm and the likelihood that such injury to health will actually be caused
by exposure to ETS.” Helling, 509 U.S. at 35. Murray fails to explain the actual
levels to which he is exposed via a scientific and statistical inquiry. Based on the
failure to meet the objective component of his Eighth Amendment claim, the Court
cannot conclude, at this early juncture in the proceedings, that Murray has
demonstrated a “reasonable probability of success” on the merits.
B.

Irreparable Harm

To satisfy the second factor, the moving party “must demonstrate ... the
probability of irreparable harm if relief is not granted.” Frank’s GMC Truck
Center, Inc. v. General Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988) (internal
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quotations omitted). “In order to demonstrate irreparable harm the plaintiff must
demonstrate potential harm which cannot be redressed by a legal or an equitable
remedy following a trial. The preliminary injunction must be the only way of
protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight,
Inc., 882 F.2d 797, 801 (3d Cir. 1989). The moving party must demonstrate that it
is likely to suffer “actual or imminent harm which cannot otherwise be
compensated by money damages,” or it “fail[s] to sustain its substantial burden of
showing irreparable harm.” Frank’s GMC, 847 F.2d at 103. The mere risk of
injury is insufficient. The moving party must establish that the harm is imminent
and probable. Anderson v. Davila, 125 F.3d 148, 164 (3d Cir. 1997). Additionally,
“a showing of irreparable harm is insufficient if the harm will occur only in the
indefinite future. Rather, the moving party must make a clear showing of
immediate irreparable harm.” Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86,
91 (3d Cir. 1992).
Murray’s claim is rooted in future harm, not actual or imminent harm.
Further, the motion is devoid of evidence that he will suffer immediate irreparable
harm if relief in the form of an injunction is not granted.
IV.

Conclusion

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Although the Court fully appreciates that Murray’s motivation in seeking
preliminary relief is borne out of his compelling concern with the alleged ongoing

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exposure to extraordinarily high levels ETS, his inability to meet the two most
critical factors for preliminary injunctive relief warrants denial of his motion. We
hasten to add that this decision is limited to the request for preliminary relief
which, by its nature, is made on an abbreviated record and prior to the benefit of
any discovery. It is in no way intended to intimate any opinion on the ultimate
merits of Murray’s case.
NOW THEREFORE, upon consideration of Plaintiff’s motion (Doc. 3) for
preliminary injunction, and for the reasons set forth above, it is hereby ORDERED
that the motion (Doc. 3) is DENIED.

s/ John E. Jones III
John E. Jones III
United States District Judge