Opinion
Civil Action 20-512
12-18-2020
CORDIRO R. BROWN, Plaintiff, v. JOHN WETZEL, MALINDA ADAMS, RICHARD COON, and KARAN FEATHER, PHILLIP MCCRACKEN, PAMALA BEHR, and EMMANUELLA FELIX, Defendants.
CHRISTY CRISWELL WIEGAND, DISTRICT JUDGE
REPORT AND RECOMMENDATION
RE: ECF NO. 95
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Cordiro R. Brown (“Plaintiff”), an inmate currently incarcerated at State Correctional Institution Mercer (“SCI-Mercer”), brings this pro se civil rights action. Presently before the Court is Plaintiff's Motion for Preliminary Injunction/Temporary Restraining Order (“Motion for Preliminary Injunction”). ECF No. 95. For the reasons that follow, it is respectfully recommended that the Motion for Preliminary Injunction should be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL HISTORY
This is Plaintiff's second Motion for Preliminary Injunction. In his previously filed Motion for Preliminary Injunction (the “First Motion”), Plaintiff argued that he was harmed by, or in danger as a result of, his exposure to e-cigarettes, environmental tobacco smoke (“ETS”), and COVID-19. ECF Nos. 33, 36 and 42. He requested an order directing Defendants to install U.V. light stations at all entrances; provide him with an N95 mask; install hand sanitizing stations at each housing unit; post signs prohibiting the use of e-cigarettes on the housing units; and test
Plaintiff for COVID-19. ECF No. 33-1 at 1-2. Defendants filed a Response in opposition to the First Motion. ECF No. 73. Plaintiff filed a Reply. ECF No. 79. Upon review, the undersigned submitted a Report and Recommendation on November 13, 2020, in which it was recommended that the First Motion be denied for the following reasons.
Plaintiff does not establish that he will suffer irreparable harm if he is denied his requested relief. To the extent Plaintiff claims that he is being exposed to ETS, there is already a policy in place prohibiting the use of tobacco products at SCI-Mercer and tobacco products are not available for purchase at the commissary. Further, Plaintiff does not request any injunctive relief related to the use of tobacco products. See ECF No. 33-1.
As to his alleged exposure to e-cigarettes, Plaintiff offers no proof that his medical conditions are, in fact, caused by e-cigarettes. He is also receiving ongoing medical care for his medical symptoms. If SCI-Mercer fails to post signs prohibiting the use of e-cigarettes on the housing units, as he requests, there is no indication that he will face irreparable harm as a result-particularly given that the use of ecigarettes is already prohibited in inmates' cells.
With respect to COVID-19, the record reflects that officials at SCI-Mercer have implemented policies to mitigate the risk of exposure. Those policies, including requiring the use of masks, limiting inmates' movements to promote social distancing, screening incoming visitors and staff; quarantining inmates that test positive for COVID-19; and providing inmates with antibacterial soap, which they are encouraged to use, appear to be consistent with Centers for Disease Control and Prevention (“CDC”) guidance for limiting the spread of the virus. See ECF No. 73 ¶¶ 16-17. Given these precautions, Plaintiff does not show that the specific relief he requests, such as adding U.V. light stations and hand sanitizing stations, are necessary to avoid irreparable harm. 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.ECF No. 86 at 4-5 (footnote omitted).
Pursuant to the Court's Order, Plaintiff was required to file his objections, if any, to the Report and Recommendation by November 30, 2020. ECF No. 86. Plaintiff did not raise any objections; instead, he filed the instant Motion for Preliminary Injunction on November 24, 2020, which seeks substantially the same relief, for substantially the same reasons, as the First Motion. ECF No. 95.
In the instant Motion, Plaintiff again argues that the Court should grant injunctive relief as a result of his alleged exposure to e-cigarettes, ETS, and COVID-19. Id. at 1. With respect to his alleged exposure to ETS and/or e-cigarettes, Plaintiff notes that he suffers from asthma. Id. He claims that he uses an inhaler to treat his condition, which suppresses his immune system. Id. Plaintiff argues that exposure to e-cigarettes is harmful for his health, that it triggers asthma symptoms, and that he has suffered two infections as a result of his exposure. Id. at 2-3. He states that his unit does not have any “no smoking” signs. Id. at 3.
With respect to COVID-19, Plaintiff argues that SCI-Mercer officials are not following Centers for Disease Control (“CDC”) guidance, referring the Court to complaints he submitted at SCI-Mercer about instances in which individuals at SCI-Mercer did not properly wear their masks, wash their hands, and/or have coughed or sneezed, and requesting an opportunity to present video evidence of such incidents. Id.; see also ECF No. 98 at 7, 11, 12, 13. Plaintiff claims that all staff have visited “COVID-19 hot spot[s]” and are exposing inmates. Id. at 3.
Based on these arguments, Plaintiff requests an order requiring Defendants to provide him with an N-95 mask; install U.V. lights and/or hand sanitizing stations at various locations in SCI-Mercer; establish a “unit front yard for e-cigarettes;” post signs prohibiting the use of e-cigarettes on his unit or suspend the use of e-cigarettes; require SCI-Mercer staff to comply with CDC precautions for COVID-19; and require any individuals entering SCI-Mercer to wear N-95 masks and to pass all of their personal items through a U.V. light. Id. at 4-5.
Defendants filed a Response in opposition to the instant Motion. ECF No. 102. Defendants point out that Plaintiff raises essentially the same arguments as his First Motion, and they refer the Court to their prior Response. Id. ¶¶ 8-9. Defendants also argue that Plaintiff cannot establish he will suffer irreparable harm if injunctive relief is denied. Id. ¶ 14. In particular, Defendants note that all DOC facilities have been tobacco free since July 1, 2019, and Plaintiff relies upon unsupported assertions that his medical conditions are caused by e-cigarettes. Id. ¶¶ 16-17. While Plaintiff did suffer from two infections in September and October 2020, sinusitis and an upper respiratory tract infection, he was treated with antibiotics. Id. ¶¶ 18-19.
With respect to COVID-19, Defendants argue that the mitigation protocols identified in response to Plaintiff's First Motion are still in place. Id. ¶ 23. Since the first positive COVID-19 case was detected on Plaintiff's unit on December 6, 2020, enhanced quarantine protocols have also been implemented, which include twice daily temperature checks; twice daily oxygen saturation level readings for high-risk inmates with chronic conditions, including Plaintiff; a prohibition on the use of phones, kiosks, or visits; a planned deep clean of the unit; and the use of enhanced personal protection equipment (“PPE”), requiring that staff wear N-95 masks and eye protection during any interactions with inmates. Id. ¶ 25. As a result, Defendants argue that Plaintiff's Motion should be denied.
Plaintiff filed a Reply on December 11, 2020. ECF No. 105. In his Reply, Plaintiff argues that Defendants have not introduced any evidence to rebut his claim of irreparable harm. Id. at 13. He asserts that he has video evidence of e-cigarettes being smoked on his unit and of the lack of no smoking signs. Id. at 2. He also argues that, with respect to his infections, he sought medical care arising out of his exposure to e-cigarettes. Id. at 2. Finally, he reiterates that COVID protocols are not being followed, and he claims that the positive case on his unit is indicative of this fact. Id. at 2-3.
The Motion for Preliminary Injunction is 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. Plaintiff raises substantially the same arguments as his First Motion. Here, again, Plaintiff does not establish that he will suffer irreparable harm if he is denied relief.
As previously discussed in the Report and Recommendation, the use of tobacco products is already prohibited at SCI-Mercer and tobacco products are not available for purchase at the commissary. ECF No. 86 at 4. Plaintiff also does not seek any relief relative to the use of tobacco products. See ECF No. 95 at 4. Accordingly, there is no basis for the Court to find that he will suffer irreparable harm as a result of Plaintiff's alleged exposure to ETS if the Court does not grant relief.
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.
With respect to COVID-19 precautions, as the Court previously concluded, the record reflects that officials at SCI-Mercer have implemented policies to mitigate the risk of exposure, and those policies appear to be consistent with CDC guidelines. Id. at 5. Since that time, additional protocols have been implemented, including the use of enhanced PPE on Plaintiff's unit. Given these precautions, Plaintiff has not shown that the specific measures he requests, such as adding U.V. light stations and hand sanitizing stations in specific locations, are necessary to avoid irreparable harm.
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. 95, 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.