Opinion
Civil Action 21-cv-407
09-23-2021
SHANE HOLLOWAY, Plaintiff, v. JOHN WETZEL AND LEE ESTOCK, Defendants.
MAUREEN P. KELLY, MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
RE: ECF NO. 18
THE HONORABLE ROBERT J. COLVILLE, UNITED STATES DISTRICT JUDGE
I. RECOMMENDATION
Plaintiff Shane Holloway (“Plaintiff') brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 and alleges the violation of his Eighth Amendment rights arising out of the inability to flush his in-cell toilet more than five times per hour. ECF No. 1-1. Pending before the Court is Plaintiffs Motion for Temporary Restraining Order & Preliminary Injunctive Relief. ECF No. 18.
For the following reasons, it is respectfully recommended that the motion be denied.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is incarcerated at the State Correctional Institution at Pine Grove (“SCI - Pine Grove”), and has been housed in the same two-man cell on H-Block for over five years. In November 2020, Plaintiff experienced maintenance issues with his in-cell toilet. Maintenance personnel fixed the issue, but also set an automatic flush limit on the toilet so that it would flush only five times per hour. Based on the documents attached to the instant motion and Complaint, the limit appears to apply to all in-cell toilets in newer SCI - Pine Grove housing units, and is a cost-saving measure. ECF No. 16-1; ECF No. 18 at 4. Plaintiff alleges that he suffers from exposure to fecal odors when the number of flushes needed exceeds the five allowed per hour. Plaintiff believes this exposure presents an increased risk of harm due to the current COVID-19 pandemic. Plaintiff states he “will not accept the relocation of living on another unit as an answer to the problem” because he perceives a change in cell as retaliatory. ECF No. 18 at 3.
B. STANDARD OF REVIEW
In Calipo v. Wolf, No. CV 18-320, 2018 WL 7412835, at *1-2 (W.D. Pa. Nov. 21, 2018), report and recommendation adopted, No. 1:18-CV-320, 2019 WL 858035 (W.D. Pa. Feb. 22, 2019), the Court explained the standard of review for motions for injunctive relief and, in particular, motions filed by prisoners over their conditions of confinement:
Temporary restraining orders and preliminary injunctions are governed under the same standard. The party seeking preliminary injunctive relief has the burden of demonstrating: (1) a reasonable probability of success on the merits; (2) irreparable harm if the injunction is denied; (3) that the issuance of an injunction will not result in greater harm to the non-moving party; and (4) that the public interest would best be served by granting the injunction. Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 879 (3d Cir. 1997); Opticians Ass'n of America v. Independent Opticians of America, 920 F.2d 187, 191-92 (3d Cir. 1990). The Court should issue the injunction only if the movant produces evidence sufficient to convince the trial judge that all four factors favor preliminary relief. Opticians, 920 F.2d at 192 (citing ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987)).
The purpose of the preliminary injunction is to preserve the status quo until the rights of the parties can be fairly and fully litigated and determined by strictly legal proofs and according to the principles of equity. Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980). Thus, the grant of injunctive relief is an “extraordinary remedy which should be granted only in limited circumstances.” American Telephone & Telegraph Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421 (3d Cir. 1994) (quoting Frank's GMC Truck Center, Inc, v. General Motor Corp., 847 F.2d 100, 102 (3d Cir. 1988)). The facts clearly must support a finding that immediate and irreparable injury will result to the movant if preliminary relief is denied. United States V. Stazola, 893 F.2d 34, 37 n. 3 (3d Cir. 1990). The plaintiff bears the burden of establishing a “clear showing of irreparable injury.” Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989); ECRI, 809 F.2d at 226 (it is not enough to merely show
irreparable harm: the plaintiff has the burden of showing immediate irreparable injury, which is more than merely serious or substantial harm and which cannot be redressed with money damages). Absent a showing of immediate, irreparable injury, the court should deny preliminary injunctive relief. Aciemoi v. New Castle County, 40 F.3d 645, 655 (3d Cir. 1994)].
Moreover, in the prison context, a request for injunctive relief “must always be viewed with great caution because ‘judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.'” Goff V. Harper, 60 F.3d 518, 520 (8th Cir. 1995) (quoting Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)). Preliminary injunctive relief is “not a tool for prisoners to use to regulate ‘in every way, every day, the terms and conditions of plaintiff s confinement simply because they are “in court” Stiel v. Fed. Bureau of Prisons, 2017 WL 2656646, at *4 (D.N.J. June 19, 2017) (quoting Muhammad v. Director of Corrections, 2009 WL 161075, at *1 (E.D. Ca. Jan. 22, 2009)). Thus, where a plaintiff requests an injunction that would require the Court to interfere with the administration of a prison, “appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief.” Rizzo v. Goode, 423 U.S. 362, 379 (1976). The federal courts are not overseers of the day-to-day management of prisons. Prison officials require broad discretionary authority as the “operation of a correctional institution is at best an extraordinarily difficult undertaking.” Wolff v. McDonnell, 418 U.S. 539, 566 (1974). Accordingly, prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that are needed to preserve internal order and to maintain institutional security. Beard v. Banks, 126 S.Ct. 2572, 2578 (2006); Bell v. Wolfish, 441 U.S. 520, 527 (1979).
C. DISCUSSION
Federal Rule of Civil Procedure 65(b)(1)(A) provides that a temporary restraining order may be issued “only if ... specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.” Fed.R.Civ.P. 65(b)(1)(A). Plaintiffs allegations do not meet this exacting standard.
As alleged in Plaintiffs Complaint and the pending motion for injunctive relief, Plaintiff can flush his toilet five times per hour and on the occasion when an errant flush activates the limit switch, the toilet may be flushed again within two hours. Thus, the duration of any odor exposure is de minimis, despite the possibility of repetition over the course of a day. Plaintiff expresses his concern that fecal odors may expose him to the CO VID-19 virus. That said, Plaintiff does not present evidence that this is a known path of viral transmission to permit the Court to find a nonspeculative risk of immediate and irreparable harm. Continental Group, Inc, v. Amoco Cherns. Corp., 614 F.2d 351, 359 (3d Cir. 1980) (speculative injury does not constitute a showing of irreparable harm). Plaintiff also alleges that because of the flush time and water pressure, some fecal matter may be retained in the toilet until it is cleaned once each week. However, Plaintiff s grievances and grievance appeals do not reflect that he has complained of the lack of water pressure or the inability to fully flush bowel movements and thus prison officials have not been offered a chance to address this particular claim. See, e.g., ECF No. 18-1 at 3. This allegation therefore does not support Plaintiffs claims of irreparable harm.
The Centers for Disease Control and Prevention (“CDC”) suggests that “(t]he virus that causes COVID-19 has been found in the feces of some patients diagnosed with COVID-19. However, it is unclear whether the virus found in feces may be capable of causing COVID-19. There has not been any confirmed report of the virus spreading from feces to a person. Scientists also do not know how much risk there is that the virus could be spread from the feces of an infected person to another person. However, they think this risk is low based on data from previous outbreaks of diseases caused by related coronaviruses, such as severe acute respiratory syndrome (SARS) and Middle East respiratory syndrome (MERS).” See https://www.cdc.gov/coronavirus/2019-ncov/faq.html#:~:text=The%20virus%20that%20causes%20COVID.feces%20to%20a%20person (emphasis added).
Along with failing to establish a substantial risk of immediate and irreparable harm, Plaintiff does not allege facts that would establish a likelihood of success on the merits. In Martin v. Gearhart, 712 Fed.Appx. 179 (3d Cir. 2017), a panel of the United States Court of Appeals for the Third Circuit acknowledged that while in-cell exposure to odors from fecal matter in an unflushed toilet may be troubling, an Eighth Amendment claim is not establish where such conditions persist due to lack of water for over a day. See also Walters v. Berks Cty. Prison, No. 11-6357, 2012 WL 760849, at *2 (E.D. Pa. Mar. 9, 2012), aff'dsubnom. Walters v. Muhlenburg Twp. Police Dep't, 536 Fed.Appx. 213 (3d Cir. 2013) (exposure to toilet odors does not state an Eighth Amendment claim); Flores v. Wagner, No. 11-1846, 2011 WL 2681596, at *5 (E.D. Pa. July 8, 2011) (“[r]equiring an inmate to eat in a cell a few feet away from a toilet is insufficient to implicate a conditions of confinement claim that is repugnant to contemporary standards of decency”).
The record also does not permit the Court to conclude that the public interest is served by requiring SCI - Pine Grove officials to permit Plaintiff access to unlimited flushes, or that the issuance of an injunction will not cause greater harm to the non-moving party.
The allegations in Plaintiff's Complaint and the motion for injunctive relief describe conditions that have been difficult for him to endure. Thus, the Court has considered Plaintiff s pro se status and construed his allegations liberally in his favor. Yet, under the circumstances alleged, Plaintiff has not met the heightened and demanding requirements for preliminary injunctive relief.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court deny the Motion for Temporary Restraining Order & Preliminary Injunctive Relief. ECF No. 18.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may respond to the objections within fourteen (14) days in accordance with Local Civil Rule 72.D.2.