Opinion
Civil Action 00-0035-CB-C
May 17, 2000
REPORT AND RECOMMENDATION
This action is before the Court on Plaintiff's "Permission/For Leave to Amend" (Doc. 13) and Plaintiff's Motion for a Preliminary Injunction (Doc. 7). These matters have been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2(c)(4). It is recommended that both motions be denied for the reasons set forth herein.
I. Plaintiff's Motion to Amend. (Doc. 13) A. Plaintiff's Claims .
In Plaintiff's motion to amend (Doc. 13), Plaintiff claims that on March 20, 2000, Officer Sells verbally abused him by name calling and told Plaintiff to sue because he (Officer Sells) did not have any money and knew about Plaintiff's pending lawsuit. Plaintiff further claims that Officer Sells has intentionally bumped into Plaintiff, and locked gates and doors, thereby delaying Plaintiff.
Plaintiff asserts that on March 25, 2000, Nurse Johnson denied him his prescribed medication because he was not last in the line and that Officer Little and Sgt. Dunn came out of the hospital and told Plaintiff that Nurse Johnson told Plaintiff that he could not have his medicine.
Plaintiff alleges that Warden Ferrell told Plaintiff that he was not sure that he could transfer Plaintiff to another facility as planned because "Wardens Disguise of Economic and ongoing Litigation [sic]." Plaintiff avers that this transfer would permit him to visit with his family.
For relief, Plaintiff seeks a preliminary injunction prohibiting Defendants from harassing, assaulting, and verbally abusing him and denying him prescribed medication for filing this action; clarifying that the present action cannot be used to deny him a transfer; and ensuring that he has proper legal-mail access to the federal court.
B. Discussion .
1. Claim Against Officer Sells .
The Court is reviewing the motion to amend the complaint as it would review a complaint under 28 U.S.C. § 1915(e)(2). Section 1915(e)(2)(ii) provides for the dismissal of an action if it fails to state a claim upon which relief may be granted. An action fails to state a claim "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
Plaintiffs claim against Officer Sells fails to state a claim upon which relief can be granted. Officer Sells is not a Defendant to the original action. Plaintiffs allegations of verbal abuse, bumping, and harassment are conclusory. See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984) (ruling that vague and conclusory claims are due to be dismissed). Except for the instance of verbal abuse, Plaintiff did not specify when the bumping or harassment occurred. Moreover, Plaintiff has not established a chronology of events that would lead to the conclusion that Officer Sells retaliated against Plaintiff for having filed this action.
Merely alleging the ultimate fact of retaliation is insufficient for stating a claim. Benson v. Cady, 761 F.2d 335, 342 (7th Cir. 1985). Even though the ultimate fact of retaliation is seldom able to be supported in the complaint with direct evidence of retaliatory intent, a complaint containing a chronology events from which retaliation may be inferred has been found to be sufficient. Id. In the claim at hand, no chronology has been alleged by Plaintiff from which the Court could conclude that retaliation occurred. Accordingly, the Court finds that Plaintiff's claim against Officer Sells fails to state a claim upon which relief can be granted.
2. Claim Against Nurse Johnson, Officer Little, and Sgt. Dunn .
Plaintiffs next claim is for the denial of his prescribed medication on March 25, 2000. Plaintiff has not identified which of the three persons connected to this claim are Defendants. Moreover, none of these persons is a Defendant to the original complaint. Notwithstanding, there is an absence of information indicating that this denial at one pill-call was related to this pending action. It is only in Plaintiff's ad damnum clause that Plaintiff indicates that the denial of his medicine was on account of this action.
There is no chronology offered by Plaintiff to support a conclusion that the denial of his medication at that time was in retaliation for filing this action. Therefore, Plaintiff's claim fails to state a claim upon which relief can be granted. Furthermore, Plaintiff's claim does not state a claim for a violation of the Eighth Amendment. "In order to state a cognizable [medical] claim, a prisoner must allege acts or omissions sufficiently harmful to evidence a deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Plaintiff has not identified the medicine, nor the condition for which he takes the medicine. Accordingly, the undersigned finds that Plaintiff has failed to state a claim upon which relief can be granted against Nurse Johnson, Officer Little, and Sgt. Dunn.
3. Claim Against Warden Ferrell .
Plaintiffs last claim is against Warden Ferrell for denying Plaintiff his allegedly pre-approved transfer to another facility nearer his family on account of "Wardens Disguise of Economic and ongoing Litigation [sic]." Plaintiff does not establish through his allegations the necessary animus for retaliation claim. Moreover, Plaintiff's claim is vague as it does not indicate the prison where Plaintiff was to be transferred and when he was approved for a transfer. An inmate does not have a constitutional interest to be or not to be transferred. Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976). Accordingly, the Court finds that Plaintiff has failed to state a claim upon which relief can be granted.
C. Conclusion .
Because the Court has found that the three claims raised by Plaintiff in his motion to amend his complaint do not state a claim upon which relief can be granted, it is recommended that Plaintiff's motion to amend be denied. See 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring the court to dismiss a case at any time if the court finds that the it fails to state a claim upon which relief can be granted).
II. Motion for Preliminary Injunction. (Doc. 7) A. The Pleadings .
The Court is treating Plaintiff's request for injunctive relief as a request for a temporary restraining order. Plaintiff seeks an injunction directing Defendants to give Plaintiff access to the inmate telephone system so he may contact his mother and others in the freeworld. Plaintiff claims that he suffers from an irreparable injury by being denied use of the telephone system, but does not identify the injury. Then, Plaintiff asserts that the mere violation of his First Amendment rights is a cognizable injury for which the Court must issue injunctive relief. Plaintiff further alleges that issuing injunctive relief is not adverse to the public interest because people visit the city hall and ask about his well-being and release date and that the public has a strong desire to know why he cannot contact his mother while she is working at city hall. Plaintiff claims that he will prevail on the merits because Defendants are not complying with Administrative Regulation 431 governing the inmate telephone system. Plaintiff further avers that Defendants will not be damaged if he is granted access to the telephone.
Plaintiff's motion (Doc. 7) is not sworn, nor have Defendants responded to the motion.
In the complaint (Doc. 1), Plaintiff claims that Defendant Warden Ferrell denied Plaintiff's request to include Plaintiff's mother's work telephone number on Plaintiff's telephone list. Plaintiff claims that his mother who is the clerk of the city of North Courtland received permission from the mayor to accept Plaintiff's collect telephone calls for which she then reimburses the city. Plaintiff asserts that for years he has been allowed to call his mother while she was working, but at Fountain Correctional Facility he has been denied the use of the telephone to contact his family. Plaintiff alleges that Defendant Ferrell, upon learning that Plaintiff's family has in it elected officials, told Plaintiff, "I'm not going to have you calling city-hall revealing things about his institution." For relief, Plaintiff requested damages.
B. Discussion .
In order for a plaintiff to prevail on a request for a temporary restraining order or a preliminary injunction, he must show:
(1) a substantial likelihood that he will ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to public interest. "The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant `clearly carries the burden of persuasion' as to the four prerequisites."Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985). It is mandatory that the movant convince the court that all four factors are satisfied. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983) (finding that a preliminary injunction was properly denied where movant failed to established one factor because movant bore burden of persuasion on each of the four factors); United States v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983) (same).
Injunctive relief will not issue unless the complained of conduct is imminent and no other relief or compensation is available. Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987); Sullivan v. Division of Elections, 718 F.2d 363, 365 (11th Cir. 1983). Further, a temporary restraining order or a preliminary injunction is a drastic remedy used primarily for maintaining the status quo of the parties. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175, 180 (1981); Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983);Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982).
In the present action, Plaintiff has failed to persuade the Court that he will or is suffering an irreparable injury if injunctive relief does not issue. Plaintiff has not identified an injury from which he suffers as a result of not having access to the prisoner telephone system. Rather, Plaintiff bases his position on the legal theory that "the loss of First Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying the grant of a preliminary injunction."Deerfield Medical Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981) (citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976)). However, an inmate only possesses those First Amendment rights which are not inconsistent with his status as a prisoner. Turner v. Safley, 482 U.S. 78, 90, 107 S.Ct. 2254, 2262, 96 L.Ed.2d 64 (1987) ("when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."). Thus, a right of an inmate under the First Amendment may be restricted or denied by official action or regulation. Id. at 91, 107 S.Ct. at 2262-63 (upheld restriction denying inmate-to-inmate correspondence because it was reasonably related to security interests).
Because the regulation or the action taken against Plaintiff has not been held unconstitutional, Plaintiff has failed to establish that he has an absolute First Amendment right to use the telephone. Therefore, Plaintiff cannot rely on the presumed injury when there has been a violation of the First Amendment. Thus, it is incumbent on Plaintiff to articulate an irreparable injury. Plaintiff, however, has not identified another injury that he has suffered as a result of being denied access to the telephone. Accordingly, the undersigned finds that Plaintiff has failed to carry his burden of persuasion in regard to the irreparable injury element.
Furthermore, Plaintiff has not met his burden of persuasion on the element that the issuance of injunctive relief would not be adverse to public interest. Plaintiff makes arguments that the public inquires at city hall about Plaintiff's well being and release date and why Plaintiff cannot contact his mother at her city hall job. These arguments are interesting, but not compelling. The greater public interest in this situation is to accord deference to the decisions of prison administrators who have expertise in the management of prisons. Id. at 84-85, 107 S.Ct. at 2259. Thus, to order Defendants to allow Plaintiff to have access to the telephone would override Defendants' decision and would be contrary to the public's interest of according deference to the decisions of prison administrators who have expertise in managing prisons. Accordingly, the Court finds that Plaintiff has failed to meet his burden of persuasion on the element that the issuance of injunctive relief would not be adverse to public interest.
C. Conclusion .
Because Plaintiff must carry the burden of persuasion in regard to all four elements and he has failed to meet this burden in regard to two elements, the Court will not address the remaining two elements.Lambert, 695 F.2d at 540. Accordingly, it is recommended that Plaintiff's motion for a temporary restraining order be denied.