Burley v. Davis et al

Filing 13

MEMORANDUM ORDER adopting 10 Report and Recommendation. Ordered that Plaintiff's 4 motion for a preliminary injunction is denied. Signed by District Judge Ron Clark on 3/6/2018. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
COREY A. BURLEY, #614081

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VS.

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LORIE DAVIS, ET AL.

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CIVIL ACTION NO. 6:17cv490

MEMORANDUM OPINION ADOPTING REPORT AND RECOMMENDATION
Plaintiff Corey Burley (Burley), an inmate of the Texas Department of Criminal Justice
proceeding pro se, filed this civil rights lawsuit under 28 U.S.C. § 1983, complaining of alleged
deprivations of his constitutional rights. This Court ordered the matter be referred to the United
States Magistrate Judge.

This memorandum opinion concerns only Burley’s motion for

preliminary injunction, (Dkt. #4).
I. Burley’s Motion for Injunctive Relief
Burley raised several claims concerning prison conditions at the Coffield Unit, particularly
overcrowding and double-celling. He twice asserted that “the Plaintiff has been confined under
these conditions for over thirteen years.” Specifically, Burley maintained that he continues to be
housed in double-cell conditions despite repeated grievances and transfer requests. He argued that
he is housed in a one-man cell, but resides with another, which “continues to create a substantial
risk of serious harm to develop from the incremental negative physical and psychological effects
due to this close confinement.”
He noted that he suffers from stress, tension, anxiety, and aggressive behavior due to
overcrowding—and that it is “only a matter of time before a total breakdown.” Ultimately, Burley
requested that this Court order prison officials at the Coffield Unit to immediately remove him
from his current housing and place him in a building within the prison “where the conditions of

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confinement are substantially better than the double-celling, or in the alternative, place Plaintiff
on single-cell housing status.”
Burley requested that the Court also order Defendants not to retaliate against him for
the filing of his grievances or this cause of action. Specifically, he argued that he should not
have to wait for the retaliatory conduct to occur before seeking the injunction, as it is “widely
known that prison officials often do retaliate against prisoners in a myriad of ways.” Burley
contended that he is threatened with irreparable harm due to the overcrowding and double-celling,
and prison officials have the power to immediately move him to the area with better conditions.
II. The Magistrate Judge’s Report and Recommendation
After a review of the motion, the Magistrate Judge issued a Report, (Dkt. #10),
recommending that Burley’s motion be denied. The Magistrate Judge found that Burley
had not demonstrated any of the four elements required for a preliminary injunction. First,
double-celling is constitutional and overcrowding is not, by itself, a constitutional violation.
Second, Burley failed to show that a substantial threat exists that irreparable harm will result if
the injunction is not granted. Finally, Burley’s retaliation claim is meritless because he failed
to demonstrate either a specific retaliatory act or an actual constitutional right for which Burley
experienced retaliation.
III. Burley’s Objections
In his objections, Burley first states that the Report ignores the fact that Burley’s filed
grievances, attached to his underlying complaint in this case, demonstrate his sleep deprivation.
He then contends that the Report also ignores and refuses to address “the fact that Plaintiff suffers
from seizures that are induced by the continued stress of his living conditions and has already
caused him to suffer a [concussion] which required he be [hospitalized].” He notes that “a review

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of his medical records will reveal that these seizures are becoming more frequent.” Burley also
argues that the Magistrate Judge refused to recognize that “it is always in the public’s interest for
prison officials to obey the law.” Burley further requests that this Court visit the Coffield Unit to
“see what Plaintiff is subjected to on a daily basis—what he has been subjected to daily for more
than a decade.”
Finally, he attaches his own signed affidavit, in which he further explains his seizures are
purportedly stemming from his sleep deprivation and living conditions. Burley notes that he
suffered a seizure on February 18, 2017, and fell from his top bunk. As a result of the seizure and
subsequent fall, he suffered from a concussion and a shoulder injury. Burley explains that on the
day of his seizure, he transferred cells—transferring from a cell where he apparently slept on the
bottom bunk to a cell where he received top bunk. He explained that despite his transfer, “there is
no safe by-policy methods or means to enter or exit the top bunk bedding area. Even after I fell,
medical failed to prescribe a bottom bunk pass, and security failed to accommodate me with a safe
bedding assignment. Now it’s February 16, 2017, and I am still being forced to endure those cruel
and unusual conditions on minimum security.”
As he describes his sleep deprivation, Burley highlights that “it is most problematic to meet
the 2:30 AM chow call.” He explains that his housing assignment is directly in front of the
dayroom and, as a result, “during the night hours I am constantly being awakened by the security
vindictively and maliciously.”
IV. Discussion and Analysis
A. Issues not Raised in Initial Motion
As an initial matter, generally, an issue raised for the first time in an objection to a
Magistrate Judge’s Report is not properly before the District Court. See Place v. Thomas, 61

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Fed.App’x 120, 2003 WL 342287, *1 (5th Cir. 2003); United States v. Armstrong, 951 F.2d 626,
630 (5th Cir. 1992). Moreover, and importantly, a party objecting to a Magistrate Judge’s Report
must specifically identify those findings to which he or she objects. Frivolous, conclusory, or
general objections need not be considered by the District Court. See Nettles v. Wainwright, 677
F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
Here, Burley never mentioned his seizure or even the word “seizure” in his motion for
preliminary injunction. While Burley began his underlying complaint by explaining that he
suffered a seizure on February 18, 2017, he never once articulated that his seizure stemmed from
sleep deprivation. Burley attached a memorandum of law to his underlying complaint; however,
again, he failed to mention his seizure.
Moreover, Burley attached several of his submitted Step 1 and Step 2 prison grievances
dating back years. A review of those grievances filed since the date of his seizure demonstrate
that his chief complaint is about how he was forced to sleep on the top bunk even after falling.
Sleep deprivation was never mentioned in any of those grievances filed after his seizure.
Accordingly, Burley’s complaint regarding his seizure and sleep deprivation was never raised in
his motion for preliminary injunction or his underlying complaint.

As a result, he

essentially raises this issue for the first time on objection and, consequently, the issue is not
properly before the District Court.
However, because Burley insists that conditions at the Coffield Unit—which he argues
contributes to his stress, anxiety, and sleep deprivation, and allegedly his seizure—entitle him to a
preliminary injunction, the Court will address the claim as it stands.

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B. Preliminary Injunctions
The purpose of issuing a preliminary injunction is to protect the plaintiff from irreparable
injury and to preserve the district court’s power to render a meaningful decision after a trial on the
merits. See Canal v. Authority of State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1979).
Essentially, a preliminary injunction serves to preserve the relative positions of the parties until a
trial on the merits can be held, if one is necessary. See Univ. Of Tex. v. Camenisch, 451 U.S. 390,
395 (1981).
A party seeking a preliminary injunction must establish four elements: (1) that there is a
substantial likelihood the party will prevail on the merits; (2) that a substantial threat exists that
irreparable harm will result if the injunction is not granted; (3) that the threatened injury outweighs
the threatened harm to the defendants; and (4) that the granting of the preliminary injunction will
not disserve the public interest. See Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d
279, 288 (5th Cir. 2012). Relief should only be granted if the party seeking relief has clearly
carried the burden of persuasion as to all four elements. Karaha Bodas Co. v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363 (5th Cir. 2003).
The equitable injunctive power of federal courts will not be exercised save in exceptional
cases to prevent irreparable injury which is clear and imminent. See Heath v. City of New Orleans,
320 F.Supp. 545, 546 (E.D.La. 1970), aff’d 435 F.2d 1307 (5th Cir. 1971). “Irreparable harm”
means an injury which cannot be adequately addressed by a monetary award.” Spiegel v. City of
Houston, 636 F.2d 997, 1001 (5th Cir. 1981). Mere speculation or conclusory allegations of an
irreparable injury is insufficient. Daniels Health Sciences, L.L.C. v. Vascular Health Sciences,
L.L.C., 710 F.3d 579, 585 (5th Cir. 2013).

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However, in Jones v. Texas Dep’t of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018),
plaintiff Jones—a diabetic TDCJ prisoner—alleged that he was on a special diet for his diabetes,
but this diet was discontinued during lockdowns despite repeated complaints. Jones maintained
that his blood sugar rose above 500, considerably above normal, and he suffered a heart attack
during one of the lockdowns.
Jones sought injunctive relief, which was denied by the district court. On appeal, the Fifth
Circuit stated that in order to establish a likelihood of success on the merits of his Eighth
Amendment claim, Jones would have to show a likelihood that substituting high-sugar meals for
his prescribed diet amounted to deliberate indifference to his serious medical needs. Jones’s
allegations were specific, concrete, and direct. Under the facts presented, the Fifth Circuit
determined that Jones’s pleadings alleged a pattern of knowing interference with the prescribed
care for his diabetes, despite multiple complaints including an official grievance. These claims,
the Fifth Circuit found, were adequate to state a claim for deliberate indifference to his serious
medical needs, thereby giving Jones a sufficient likelihood of success on the merits.
The Fifth Circuit also determined that Jones’s allegations were sufficient to show a
substantial threat of irreparable harm and that the District Court could not simply assume that
providing necessary medical care to a prisoner would be too much of an inconvenience to prison
authorities. Therefore, the Fifth Circuit reversed the court’s denial of his motion for injunctive
relief—remanding the case for further proceedings.
Here, however, the Magistrate Judge properly and correctly recommended that Burley’s
motion for a preliminary injunction be denied. First, throughout his motion for a preliminary
injunction and his underlying complaint, Burley asserts that he has been confined under the
prison conditions to which he complaints for at least thirteen years. Even in his

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objections, Burley asks the Court to visit the Coffield Unit in order to witness the conditions that
he has been subjected to for over a decade. Accepting this as true, any irreparable harm
stemming from the prison conditions as he describes it is clearly not imminent. Unlike
Jones, who needed the injunction because of the immediacy of his diabetic needs during a
lockdown, Burley readily admits that his circumstances have been ongoing for over a decade.
Therefore, given the lack of immediacy here, Burley fails to show that a substantial threat of
irreparable harm exists if the injunction is not granted. Accordingly, the Magistrate Judge’s
recommendation was correct.
To the extent that Burley insists that his previous seizure and subsequent fall render
the threat of irreparable harm imminent and urgent, his claim fails. A prisoner’s self-diagnosis
of a serious medical condition is insufficient to show imminent danger without medical
evidence verifying that the condition exists. See Aswegan v. Henry, 49 F.3d 461, 465 (8th Cir.
1995); accord Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir. 1994) (prisoner's self-diagnosis
alone will not support a medical conclusion); McClure v. Foster, civil action no. 5:10cv78, 2011
WL 665819 (E.D. Tex., January 7, 2011), Report adopted at 2011 WL 941442 (E.D. Tex.,
February 16, 2011), aff'd 465 F.App’x 373, 2012 WL 1059408 (5th Cir. March 29, 2012). Here,
Burley’s self-diagnosis—namely that his seizure stems from sleep deprivation as well as the stress
and anxiety of living under prison conditions at the Coffield Unit—is insufficient to show
imminent danger, absent medical records.
While Burley failed to mention his seizure in his motion for a preliminary injunction, he
notes in his complaint that the stress, anxiety, and sleep deprivation stemming from the purported
unconstitutional conditions at the Coffield Unit place him at risk for additional future harm.
However, Burley fails to connect conditions at the prison to his seizure. In his filed prison

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grievances attached to his underlying complaint in this case, Burley does not contend that his
seizure and subsequent fall stemmed from the effects of prison conditions. Rather, his grievances
demonstrate his complaint about being assigned to a top bunk after being hospitalized—
specifically characterizing the issue as “negligence.”
Furthermore, in all of his grievances submitted after his seizure incident—provided to the
Court thus far—he never mentions sleep deprivation, anxiety, or stress concerning prison
conditions when addressing his seizure. Instead, his grievances evince mere dissatisfaction with
the prison’s bunk assignment protocol. Similarly, in his affidavit attached to his objections, Burley
continues to complain that prison officials did not assign him a bottom bunk, which, he contends,
shows deliberate indifference to his serious medical issues. In other words, Burley’s deliberate
indifference claim rests more with his top bunk assignment rather than double-celling,
overcrowding, and sleep deprivation.
Additionally, a review of those grievances demonstrates that prison medical officials
cleared Burley for a top bunk even after his hospitalization. In this way, any claim that the
effects of double-celling/overcrowding—which allegedly contribute to Burley’s stress,
anxiety, sleep deprivation, and, ultimately, his seizure—is speculative, conclusory, and far too
remote to warrant a preliminary injunction. Given that his attempt to connect his seizure to the
effects of the prison conditions is speculative and he repeatedly insists that the unconstitutional
prison conditions have been ongoing for over a decade, the Magistrate Judge correctly
found that Burley has not demonstrated that a substantial threat of irreparable harm exists if
the injunction is not granted.
As to his final objection, Burley argues that “it is always in the public’s best interest for prison
officials to obey the law.” However, because Burley failed to show that a substantial threat

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of irreparable harm exists if the injunction is not granted—a required element before a preliminary
injunction can be granted—the Court declines to address the remaining elements.
V. Conclusion
As the Magistrate Judge found, Burley has not demonstrated that a substantial threat exists
that irreparable harm will result if the injunction is not granted. He insists that he has been
subjected to these prison conditions of over a decade.
The Court has conducted a careful de novo review of those portions of the Magistrate
Judge’s proposed findings and recommendations to which Plaintiff objected. See 28 U.S.C.
§636(b)(1) (District Judge shall “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”). Upon such de
novo review, the Court has determined that the Report of the United States Magistrate Judge is
correct and the Plaintiff’s objections are without merit. Accordingly, it is
ORDERED that Plaintiff’s objections, (Dkt. #12), are overruled and the Report of the
Magistrate Judge is ADOPTED. Additionally, it is
ORDERED that Plaintiff’s motion for a preliminary injunction, (Dkt. #4), is DENIED.
So ORDERED and SIGNED this 6 day of March, 2018.

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Ron Clark, United States District Judge

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