UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION KENNETH COX, JR. v. Plaintiff, Case No. 06-10350 Honorable David M. Lawson CORRECTIONAL MEDICAL SERVICES, INC., AUDBERTO ANTONINI, DR. CLARK, DR. DOYLE, DR. KIM, DR. MESSANY, DR. PANDYA, DR. STEEL, G. COTTON CORRECTIONAL FACILITY, MICHIGAN DEPARTMENT OF CORRECTIONS, DAVID DEGRAAF, KARMEN BLOUNT, MS. BLACK, MR. LOCKHART, JEAN MARIE KING, JAYNA SHARPLEY, P.A. SHERMAN, PEGGY LEE, SERGEANT HODGKINS, and SERGEANT SAWYER, Defendants. / ORDER ADOPTING IN PART MAGISTRATE JUDGE S REPORT AND RECOMMENDATION, OVERRULING PLAINTIFF S OBJECTIONS, AND DENYING MOTION FOR PRELIMINARY INJUNCTION The plaintiff, a prisoner serving a lengthy sentence in the custody of the Michigan Department of Corrections, filed this action pro se alleging that his constitutional rights were violated by prison officials who provided inadequate medical care that resulted in his blindness. Via 42 U.S.C. 1983, he brings his claims under the Eighth Amendment, and he also alleges that he faces the threat of retaliation for the exercise of his First Amendment rights. In addition, the plaintiff contends that the defendants have violated the Americans with Disabilities Act, 42 U.S.C. 12101, et seq. (ADA), by failing to provide aid to him to accommodate his blindness. The Court referred the matter to Magistrate Judge Charles E. Binder for general case management. The plaintiff then filed a motion for a preliminary injunction seeking (1) a temporary restraining order preventing the [MDOC] from arbitrarily transferring him from prison to prison for the duration of legal proceedings
in [this case] ; and (2) a preliminary injunction ordering the MDOC to comply with the Americans with Disabilities Act (ADA) and provide Plaintiff with the devices, aids and conveniences necessary to accommodate his disability. Pl. s Mot. for Inj. at 1-2. The magistrate judge filed a report dealing with the first part of the plaintiff s motion, recommending that it be denied. The magistrate judge did not address the second part of the request for relief. The plaintiff filed timely objections. The Court has reviewed the motion papers de novo and concludes that the motion should be denied. I. The magistrate judge recommended denial of the plaintiff s motion insofar as it sought an injunction preventing his transfer to other prisons. He concluded that the [p]laintiff is not likely to succeed on the merits because the potential transfer is not a deprivation of a right secured by the United States Constitution or laws of the United States that would entitle him to relief under 42 U.S.C. 1983. R&R at 2. He reasoned that a prisoner has no liberty interest in interprison transfers. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976). The plaintiff objects on the ground that the focus of the inquiry should have been on the likelihood of success on the merits of the plaintiff s underlying Eighth Amendment and ADA claims, not the retaliation claim ostensibly addressed by the motion. This Court recently summarized the standard governing motions for preliminary injunctions in Hacker v. Federal Bureau of Prisons, 2006 WL 2559792 (E.D. Mich. 2006) (slip copy). In Hacker, the Court explained as follows: This Court must consider four factors when determining whether to issue a preliminary injunction: (1) the likelihood of the party s success on the merits of the claim; (2) whether the injunction will save the party from irreparable injury; (3) the probability that granting the injunction will substantially harm others; and (4) whether the public interest will be served by the injunction. Summit County Democratic Cent. and Executive Comm. v. Blackwell, 388 F.3d 547, 552 (6th Cir. -2-
2004); Rock and Roll Hall of Fame and Museum, Inc. v. Gentile Productions, 134 F.3d 749, 753 (6th Cir. 1998); Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 399 (6th Cir. 1997); Frisch s Rest., Inc. v. Shoney s, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985). The Sixth Circuit has explained that one purpose of a preliminary injunction under Rule 65 is to preserve the status quo so that a reasoned resolution of a dispute may be had. Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). [T]he four factors are not prerequisites to be met, but rather must be balanced as part of a decision to grant or deny injunctive relief. Performance Unlimited v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir. 1995). The district court need not make specific findings regarding each of the four factors if fewer factors are dispositive of the issue. See Six Clinics Holding Corp., 119 F.3d at 399. Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal. Gonzales v. Nat l Bd. of Med. Exam rs, 225 F.3d 620, 625 (6th Cir. 2000). The plaintiffs burden is the same irrespective of whether the relief sought is mandatory or prohibitive. United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg l Transit Auth., 163 F.3d 341, 348 (6th Cir. 1998). The Sixth Circuit has instructed that the likelihood-of-success factor should be analyzed in conjunction with the other factors in the following manner: In applying this test, we balance the factors. The Appellant must demonstrate a likelihood of success on the merits to a degree inversely proportional to the amount of irreparable harm that will be suffered if a stay does not issue. [I]n order to justify a stay of the district court s ruling, the [Appellant] must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted. Family Trust Found. of Kentucky, Inc. v. Kentucky Judicial Conduct Comm n, 388 F.3d 224, 227 (6th Cir. 2004). Although the court of appeals analyzed likelihood of success when reviewing a motion for stay pending appeal, the tests are identical. Blackwell, 388 F.3d at 552 (stating the factors to be considered in determining whether an order should be stayed are the same factors considered in determining whether to issue a temporary restraining order [or] a preliminary injunction ). -3-
Id. at *7-8. When analyzing the factor of the likelihood of the party s success on the merits of the claim, courts uniformly determine whether the moving party will prevail on the claim which underlies the party s request for injunctive relief. See, e.g., Lorillard Tobacco Co. v. Amouri s Grand Foods, Inc., 453 F.3d 377, 380-81, 383 (6th Cir. 2006) (directing district court to enter preliminary injunction against the sale of counterfeit cigarette packages when moving party established that it would likely prevail on underlying claims of trademark infringement and unfair competition). In other words, if a party seeks a preliminary injunction to bar the defendant from violating a specific right, the court must discern whether the moving party will likely prevail on a claim that the particular right was or is being violated. Here, the plaintiff moved for a preliminary injunction to prevent[] the [MDOC] from arbitrarily transferring him from prison to prison for the duration of legal proceedings in [this case]. Pl. s Mot. for Inj. at 1. In his brief in support of this motion, the plaintiff plainly states that he bases his request for injunctive relief on the grounds that he has been retaliated against for writing grievances and filing this action. Brf. in Supp. at 2. Therefore, in determining whether the injunction should be granted, the magistrate judge appropriately evaluated the likelihood of the plaintiff s success on his First Amendment retaliation claim. R & R at 3. The magistrate judge also evaluated whether the plaintiff could succeed on his claim that the defendants provided him with inadequate medical treatment in violation of the Eighth Amendment. Ibid. (explaining that, [a]lthough transfer may be inconvenient, it does not rise to the level of constituting a wanton infliction of pain, or cruel and unusual punishment). The magistrate judge performed the proper analysis and reached the correct result. The plaintiff s first objection will be overruled. -4-
II. The plaintiff s second objection challenges that magistrate judge s overlooking the plaintiff s other request for relief: that the defendants be compelled to furnish him with assistance to accommodate his disability. The Court agrees that the magistrate judge did not discuss this aspect of the plaintiff s motion. However, the Court finds that the plaintiff has not established that the relevant factors militate in favor of a preliminary injunction. The plaintiff s complaint generously can be read to allege that the defendants have violated his rights under the ADA by failing to provide him various accommodations for his vision problems. He seeks the following accommodations: (1) a prisoner aid someone he can trust, who is paid by the institution to help him get to call-outs, the mess hall and store... to guide and protect him from danger and to check the medications health care distributes to him ; (2) a cassette tape player so he can receive and listen to books recorded on tape and provided by services for the blind ; (3) a key padlock so he can secure his personal belongings in a locked locker ; and (4) an early chow detail and a diet to accommodate his diabetes. Pl. s Brf. in Supp. at 4. The Supreme Court has held that the ADA prohibits state prisons from discriminating against inmates on account of their disabilities. Pennsylvania Dep t. of Corrections v. Yeskey, 524 U.S. 206, 209-10 (1998). Since Yeskey, the Ninth Circuit has held that the ADA requires correctional facilities to provide disabled inmates with reasonable accommodations to enable them to attend parol hearings, Armstrong v. Davis, 275 F.3d 849, 856 (9th Cir. 2001), and other courts have held that prison officials have a general duty to provide reasonable accommodations to their disabled inmates, see, e.g., McIntyre v. Robinson, 126 F. Supp. 2d 394, 409 (D. Md. 2000) (explaining that, since Yeskey, it has to be said that there was a -5-
clearly established constitutional right of prisoners to be free from unreasonable levels of [environmental tobacco smoke] and, to the extent that a prisoner might otherwise qualify under the ADA, that the prisoner would be entitled to damages for the prison s failure to provide reasonable accommodation for his disability ). Here, it has not been established that the MDOC s duty to provide reasonable accommodations would dictate that it supply all of the items requested by the plaintiff. See 42 U.S.C. 12111(9) (providing that reasonable accommodations may include making existing facilities... readily accessible to and usable by individuals with disabilities and the acquisition or modification of equipment or devices ). Moreover, the thrust of the plaintiff s argument does not appear to be that the defendants have refused to accommodate him. Rather, he contends that a short time after as he receives certain aid for blind people from the facility, he is transferred to another prison and must start anew to acquire the aids and devices to permit a blind person to survive in the prison setting. The likelihood of success on the merits of the ADA claim, therefore, is far from certain. Next, to demonstrate irreparable harm, the plaintiff must show that without the injunction he will suffer actual and imminent harm rather than harm that is speculative or unsubstantiated. Abney v. Amgem, Inc., 443 F.3d 540, 552 (6th Cir. 2006) (internal quotes omitted). The plaintiff has failed to show that he will suffer irreparable harm if the Court declines to issue an injunction requiring the defendants to provide the requested accommodations. Although he suggests that he faces a risk of being taken advantage of by other prisoners or consuming the wrong medication, the plaintiff has not demonstrated that this potential harm is actual and imminent rather than merely speculative. -6-
The third factor whether providing the requested relief would substantially harm others weighs slightly in favor of the injunction. As mentioned above, the ADA applies to prison officials and requires them to reasonably accommodate disabled inmates. See Yeskey, 524 U.S. at 209-10; McIntyre, 126 F. Supp. 2d at 409. Although it has not been demonstrated that the MDOC has a duty to provide all of the items requested by the plaintiff, it likely must furnish some of them, and the plaintiff acknowledges that it has provided some aid to the plaintiff in other institutions. Therefore, requiring the defendants to provide some of the accommodations would not cause them substantial harm. The fourth factor, whether the public interest will be served by the injunction, may also weigh slightly in favor of granting the injunction. Generally, the public interest is served by preventing violations of the law. See Chabad of Southern Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 436 (6th Cir. 2004). Therefore, to the extent that defendant MDOC has a duty under the ADA to provide the plaintiff with the accommodations he seeks, the granting of the injunction serves the public interest. Nonetheless, the balance of the factors does not militate in favor of a preliminary injunction. The two most important factors (likelihood of success on the merits and irreparable harm) point toward denial. See, e.g., Shrink Missouri Government PAC v. Adams, 151 F.3d 763, 764 (8th Cir. 1998) (identifying likelihood of success on the merits as the most important factor); TAP Pharmaceutical Products, Inc. v. Atrix Laboratories, Inc., 2004 WL 2034073, *1 n.1 (N.D. Ill. 2004) (suggesting that [i]rreparable harm and reasonable likelihood of success are generally thought to be the most important factors in determining whether a preliminary injunction should issue ). Although the Sixth Circuit has held that no one factor is a prerequisite to obtaining -7-
injunctive relief, Overstreet v. Lexington-Fayette Urban County Government, 305 F.3d 566, 573 (6th Cir. 2002), absent some showing of irreparable harm, an injunction is generally inappropriate. See Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 61 (1975). Therefore, because the plaintiff has shown only the speculative possibility of irreparable harm, and given that the other factors do not emphatically militate in favor of injunctive relief, the Court will deny the plaintiff s motion for an injunction mandating the MDOC provide him with the requested accommodations. III. The Court agrees with the magistrate judge s report as to the first part of the plaintiff s motion for a preliminary injunction, and the Court finds that the plaintiff has not demonstrated a right to the relief he seeks under the ADA pending the ultimate determination of the merits of his claims. Accordingly, it is ORDERED that the plaintiff s objections to the magistrate judge s recommendation and report are OVERRULED, and the recommendation and report is ADOPTED in part. DENIED. It is further ORDERED that the plaintiff s motion for a preliminary injunction [dkt # 48] is It is further ORDERED that the matter is referred to the magistrate judge for further pretrial proceedings pursuant to the original order of reference. Dated: October 25, 2006 s/david M. Lawson DAVID M. LAWSON United States District Judge -8-