Case No. 3:17-cv-01275-JPG-DGW
REPORT AND RECOMMENDATION
WILKERSON, Magistrate Judge :
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on Plaintiff's Motion for Preliminary Injunction (Doc. 52). For the following reasons, it is RECOMMENDED the Motion for Preliminary Injunction be DENIED and the Court adopt the following findings of fact and conclusions of law.
FINDINGS OF FACT
Plaintiff Gary Lavite filed a Complaint in this action on December 5, 2017 (Doc. 10). The Court conducted a threshold review pursuant 28 U.S.C. § 1915A, and Lavite was allowed to proceed on the following claims:
Count 1 - Nurse John Doe and Randy Young were deliberately indifferent to Plaintiff's serious medical needs in violation of the Fourteenth Amendment;
Count 2 - Young retaliated against Plaintiff for filing a grievance by sending him to segregation in violation of the First Amendment;
Count 3 - Plaintiff was subjected to unconstitutional conditions of confinement in segregation in violation of the Fourteenth Amendment by Young, Patterson, Blakey, and Craig;
Count 4 - Sardage, Sandidge Patterson, Blakey, and Craig denied Plaintiff adequate nutrition in violation of the Fourteenth Amendment.
Lavite has filed a Motion for Preliminary Injunction asking the Court to enter an order preventing Madison County Jail from monitoring his phone calls, hanging up on his calls, or cancelling his day visits (Doc. 52). Lavite believes he is being subjected to these actions as a result of his filing the present lawsuit (Doc. 52).
It is well established that non-privileged phone calls may be monitored by jails and prisons for security purposes. Martin v. Tyson, 845 F.2d 1451, 1458 (7th Cir. 1988). Thus, the Court will not address the claim by Lavite that his phone calls with someone other than his attorney were monitored.
CONCLUSIONS OF LAW
A preliminary injunction is an "extraordinary and drastic remedy" for which there must be a "clear showing" that Plaintiff is entitled to relief. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A CHARLES ALANWRIGHT, ARTHUR RMILLER, & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948 (5th ed. 1995)). The purpose of such an injunction is "to minimize the hardship to the parties pending the ultimate resolution of the lawsuit." Faheem-Elv. Klincar, 841 F.2d 712, 717 (7th Cir. 1988). The Prison Litigation Reform Act provides that a preliminary injunction must be "narrowly drawn, extend no further than necessary to correct the harm . . . ," and "be the least intrusive means necessary to correct that harm." 18 U.S.C. § 3626(a)(2). To obtain a preliminary injunction the movant has the burden of demonstrating: (1) a reasonable likelihood of success on the merits; (2) no adequate remedy at law; and (3) irreparable harm absent the injunction. Planned Parenthood v. Commissioner of Indiana State Dept. of Health, 699 F.3d 962, 972 (7th Cir. 2012).
If the movant successfully meets this burden, the Court must then weigh "the balance of harm to the parties if the injunction is granted or denied and also evaluate the effect of an injunction on the public interest." Planned Parenthood, 699 F.3d at 972.
Here, Lavite has not shown he will suffer any irreparable harm absent an injunction. Irreparable harm requires proof of more than a mere possibility of harm, although the harm does not need to actually occur or even be certain to occur. Michigan v. U.S. Army Corps of Eng'rs, 667 F.3d 765, 788 (7th Cir. 2011). The broadest reading of Lavite's motion is that at some point two of Lavite's phone calls were cancelled and he was denied a video visit (Doc. 52; Doc. 59, pp. 3-4).
Because there is no evidence of irreparable harm, the Court finds it unnecessary to enter into an analysis of Lavite's likelihood of success on the underlying claims or whether there is an adequate remedy at law.
To being with, unlimited communication between pretrial detainees and their families and friends is not required under the law. Duran v. Elrod, 542 F.2d 996, 1000 (7th Cir. 1976). Lavite filed grievances alleging his phone calls were disconnected on two separate dates (Doc. 59-1, pp. 3-4). In response, Defendants produced a sworn affidavit from the Madison County Sheriff's Department Jail Superintended, Randy Young (Doc. 59-1). In his affidavit, Young states he investigated Lavite's grievances and confirmed the phone service the jail uses, IC Solutions, disconnected two of Lavite's phone calls when the party Lavite was talking to attempted make a three-way call (Doc. 59-1, pp. 1-2). Thus, there is no evidence that Madison County Jail was responsible to terminating Lavite's phone calls. Further, Lavite has been informed of the reasons for the calls being disconnected (Doc. 59-1, p. 5). Thus, as long as Lavite informs the person receiving his calls not to press any buttons or attempt make a three-way call, there is no reason for the Court to believe that future phone calls will be terminated.
It appears that IC Solutions automatically terminates calls when the receiving party presses dial buttons on their end (See Doc. 59-1, p. 5). --------
Further, Lavite has only alleged one incident where his visitation was cancelled. Even assuming his claim that the visit was cancelled by the jail is correct, there is no evidence before the Court to suggest that such visits will be cancelled in the future. Lavite received three video visits in April and May, 2018 (Doc. 59-1, p. 6). After the incident Lavite complains of, two more video visits were scheduled for June 19, 2018 and June 21, 2018 (Doc. 59-1, p. 6). While neither of those visits took place, the records and sworn affidavit submitted by Defendants indicate the jail did not cancel the visits (Doc. 59-1, p. 2); rather the scheduled visitor missed the call (Doc. 59-1, p. 6).
Because there is insufficient evidence Defendants can disconnect future phone calls or are likely to prevent future video visits, the Court finds Lavite has failed to show he will suffer irreparable harm absent a preliminary injunction.
For the above stated reasons, it is RECOMMENDED the Court DENY Lavite's Motion for Preliminary Injunction (Doc. 52) and adopts the preceding findings of fact and conclusions of law.
NOTICE REGARDING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and SDIL-LR 73.1(b), any party may serve and file written OBJECTIONS to this Report and Recommendation/Proposed Findings of Fact and Conclusions of Law within fourteen (14) days after service. Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues, both factual and legal, which are addressed in the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. Video Views, Inc. v. Studio 21, Ltd. and Joseph Sclafani, 797 F.2d 538 (7th Cir. 1986).
You are not to file an appeal as to the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District Judge issues an Order either affirming or reversing the Report and Recommendation/Proposed Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge. DATED: July 27, 2018
DONALD G. WILKERSON
United States Magistrate Judge