Opinion
Civil Action No. 20-512
04-13-2021
CORDIRO R. BROWN, Plaintiff, v. JOHN WETZEL, MALINDA ADAMS, RICHARD COON, and KARAN FEATHER, PHILLIP MCCRACKEN, PAMALA BEHR, and EMMANUELLA FELIX, Defendants.
District Judge Christy Criswell Wiegand
Re: ECF No. 183 REPORT AND RECOMMENDATION
I. RECOMMENDATION
Plaintiff Cordiro R. Brown ("Plaintiff"), an inmate currently incarcerated at the State Correctional Institution Mercer ("SCI-Mercer"), brings this pro se civil rights action arising out of allegations that he is being harmfully exposed to tobacco smoke and electronic cigarettes ("e-cigarettes"), that he was exposed to COVID-19, and that prison officials retaliated against him for his complaints. ECF No. 185.
Presently before the Court is Plaintiff's E-Cig Motion for Preliminary Junction/Temporary Restraining Order ("Motion for Preliminary Injunction"). ECF No. 183. For the reasons that follow, the Motion should be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL HISTORY
This is Plaintiff's fifth Motion for Preliminary Injunction. ECF Nos. 33 and 42, 95, 135, 139 and 183. In the instant Motion, Plaintiff argues that he is being harmfully exposed to e-cigarettes on a daily basis inside his cell and on his unit. ECF No. 183 at 1-2. Plaintiff argues that the designated areas for e-cigarette use have not been available since August 2020. Id. at 2. He claims that this exposure caused him to suffer daily asthma attacks, hypertension, daily pain, and risk of lung impairment or death. Id. at 3. Plaintiff refers the Court to a grievance that he filed regarding, among other things, the failure to post signs on his unit that prohibit smoking. Id. at 2; ECF No. 183-1. The Chief Grievance Officer upheld this grievance in part, finding that the Pennsylvania Department of Corrections' ("DOC") policy requiring "no smoking" signs to be posted prominently had not been followed, and that SCI-Mercer staff would be directed on this issue. ECF No. 183-1. Based on this, Plaintiff argues that SCI-Mercer staff is not complying with smoking policy. ECF No. 183 at 2.
Although Plaintiff's filing at ECF No. 42 is docketed as a separate motion, the Court construed this filing as a supplement to his previously filed motion docketed at ECF No. 33. ECF No. 86 at 1 n. 1.
In his Reply, however, Plaintiff states that these areas are available on a limited basis of one hour weekly. ECF No. 207 at 1.
As relief, Plaintiff requests that a "no smoking" sign be placed on his unit, and that a designated area be provided for the use of e-cigarettes "on the unit (front area), with time zones." Id. at 3. He also requests that e-cigarettes be prohibited to inmates until this occurs. Id. Unless a sign is posted, he argues, there would appear to be no policy prohibiting the use of e-cigarettes on his unit. Id. Plaintiff also requests that the Court hold a hearing, which he claims will permit him to submit further evidence of his harm. Id. at 4.
In response, Defendants point out that Plaintiff raises issues they have previously addressed in response to Plaintiff's prior motions. ECF 204 ¶ 10. Defendants reiterate that tobacco use is prohibited in all DOC facilities as of July 2019. Id. While e-cigarettes are available for purchase, they may only be used in designated areas, and e-cigarettes are not permitted to be used in inmates' cells. Id.; ECF No. 204-1 ¶ 7.
To the extent Plaintiff raises concerns regarding the lack of "no smoking" signs, Defendants argue that these signs are simply reminders that existing policy prohibits smoking indoors, which is spelled out in the inmate handbook. ECF No. 204 ¶ 12; ECF No. 204-1 ¶ 6. The failure to additionally post signs was an oversight—not an indication that the "no smoking" policy was not being followed. ECF No. 204 ¶ 12. "No smoking" signs are now posted in the housing units. ECF No. 204 ¶ 13; ECF No. 204-1 ¶ 12.
In addition, Defendants note there is no record of Plaintiff's cellmate purchasing e-cigarettes from the commissary in the last 6 months. However, Plaintiff did purchase e-cigarettes during this time. ECF No. 204-1 ¶¶ 10-11; ECF No. 204-2. Based on this, Defendants argue that it appears Plaintiff is engaging in the very behavior of which he complains. ECF No. 204 ¶ 14. For these reasons, Defendants argue that Plaintiff cannot demonstrate he is entitled to injunctive relief.
Plaintiff filed a Reply in support of his Motion. ECF No. 207. He claims that he only purchased e-cigarettes as "evidence" to support his claims and not for his personal use. Id. at 3. Plaintiff states that a "no smoking" sign was not posted until recently, and that yard access where e-cigarettes can be used is currently limited. Id. at 1-2. He asserts that air is recycled indoors, and that it is possible for e-cigarette smoke to travel between cells. Id. at 1. Finally, he asks the Court to reject Captain Coon's affidavit, which Plaintiff claims could not have been based upon Captain Coon's review of evidence given his recent retirement, and because he claims that Captain Coon previously provided false information to this Court by testifying that "no smoking" signs were posted. Id. at 2-3.
Contrary to Plaintiff's claim, there is no indication that Captain Coon provided false information to this Court. In the instant Motion, Plaintiff refers the Court to findings that "no smoking" signs were not posted on Plaintiff's unit. ECF No. 183-1 at 1. In the hearing at issue, Coon clearly testified that "no smoking" signs were not posted within the housing units. Brown v. Adams, No. 19-638 (W.D. Pa. 2019), ECF No. 100 at 16 ("There were no signs posted inside the housing unit. It is in the policy and in the inmate handbook that every inmate receives.").
The Motion for Preliminary Injunction is now ripe for consideration.
B. LEGAL STANDARD
Although Plaintiff purports to seek a temporary restraining order and a preliminary injunction, because Plaintiff seeks injunctive relief and Defendants have been provided with notice and an opportunity to brief this issue prior to the issuance of an order, the Court will consider the Motion as a request for a preliminary injunction only. See Fed. R. Civ. P. 65(a)(1), (b); Story v. Wetzel, Civ. A. No. 15-1241, 2017 U.S. Dist. LEXIS 18169, at *3 n.1 (W.D. Pa. Feb. 9, 2017).
Preliminary injunctive relief is an extraordinary remedy and should issue only in limited circumstances. Ferring Pharm., Inc. v. Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014). Four factors inform a court's decision as to the issuance of a preliminary injunction: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will suffer irreparable harm if denied relief; (3) whether the requested relief will cause greater harm to the nonmovant; and (4) whether an injunction would be in the public interest. Am. Express Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). The first two factors are "most critical" to the court's analysis, and the movant cannot succeed if either of these two factors are not established. Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). If these first two "gateway factors" are met, the court considers the remaining factors and determines whether all four factors, on balance, weigh in favor of granting the requested preliminary relief. Id.
C. DISCUSSION
Upon review, Plaintiff's Motion for Preliminary Injunction should be denied. As Defendants point out, Plaintiff largely reiterates his previous Motions for Preliminary Injunction, which this Court has already rejected. This is the third Motion for Preliminary Injunction that Plaintiff has filed arising out of his alleged exposure to e-cigarettes, and it is also the third time he has requested that the Court address a purported lack of "no smoking" signs on his unit. ECF Nos. 33, 95 and 183.
As this Court has twice held, Plaintiff has not established that he will suffer irreparable harm if he is denied injunctive relief with respect to his alleged exposure to e-cigarettes:
With respect to e-cigarettes, the Court previously noted that "Plaintiff offers no proof that his medical conditions are, in fact, caused by e-cigarettes," and that he is receiving ongoing care for his medical symptoms. ECF No. 86 at 4. The same conclusion applies here. Particularly given that the use of e-cigarettes is already prohibited in inmates' cells, Plaintiff does not demonstrate that the specific relief he requests is necessary to avoid irreparable harm. See id.ECF No. 112 at 6; see also ECF No. 86 at 4.
The Court adopted these Report and Recommendations submitted at ECF Nos. 117 and 150. --------
The same conclusion still applies. In the instant Motion, Plaintiff does not establish that he will face irreparable harm if his requested relief is not granted. There is no evidence that Plaintiff's medical conditions are caused by e-cigarettes, or that the specific relief he seeks would be necessary to avoid harm. The DOC already has prohibited the use of e-cigarettes on the housing units, and there already are designated areas for their permitted use. Although Plaintiff argues that a "no smoking" sign should be posted on his unit, this too has since been done.
Because Plaintiff does not establish that he will face irreparable harm if relief is not granted, he does not satisfy the requirements for granting preliminary injunctive relief. See Reilly, 858 F.3d at 176, 179. Accordingly, the Motion should be denied.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Preliminary Injunction, ECF No. 183, be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to file an appeal to the District Judge which includes the basis for objection to this Order. Any appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any appellate rights. Dated: April 13, 2021
Respectfully submitted,
/s/ Maureen P . Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE cc: The Honorable Christy Criswell Wiegand
United States District Judge
Cordiro R. Brown
LT 6439
SCI Mercer
801 Butler Pike
Mercer, PA 16137
All counsel of record via CM/ECF.