The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
CORDIRO BROWN, | )
) Civil Action No. 19-638 :
Plaintiff, ) — District Judge Joy Flowers Conti
) Magistrate Judge Maureen P. Kelly
ow. )
. ) ‘Re: ECF No. 5
.M. ADAMS, PHILLIP MCCRACKEN, yo.
RICHARD COON, and PEMALE BEHR, ) .
Defendants. yo .
MEMORANDUM ORDER
Plaintiff Cordiro Brown (“Plaintiff”), an inmate incarcerated at State Correctional
Institution Mercer (“SCI Mercer”), filed this pro se prisoner civil rights action arising out of
allegations that is being harmfully exposed to tobacco smoke. ECF No. 13. Presently before the
Court is Plaintiffs Motion for Preliminary Injunction/Temporary Restraining Order (“Motion for
Preliminary Injunction”) and Brief in Support, ECF Nos. 5 and 6, and Defendants’ Brief in .
Opposition, ECF No. 30. For the reasons set forth below, this Motion is denied.
Plaintiff filed the instant Motion for Preliminary Injunction and supporting brief on July
19, 2019. ECF Nos. 5 and 6. Plaintiff claims that he is suffering physical and mental injuries
arising out of his exposure to unreasonably high levels of tobacco smoke. ECF No. 6 at 1-3. He
further alleges that Defendants permit tobacco to be used and sold at SCI Mercer, resulting in
Plaintiffs continued exposure and placing him at “imminent risk of irreparable injur[ies].” Id. at
3. Plaintiff requests that the Court issue an injunction and “take action” with respect to his
alleged exposure, although he does not identify what specific action the Court should take. An
injunction is in the public interest, he argues, because it will reduce medical costs for treating
Plaintiff's nace an mene imac! and Defendants will suffer no harm from such an
injunction. Id. □
i response, Defendants ee that Plaintiff improperly seeks to litigate the merits of his
underlying claim through this Motion, which is not the purpose of a preliminary injunction. ECF.
No. 30. at 4. Derenents further argue that a preliminary injunction is improper here because
_ Plaintiff cannot show a reasonable probability of success on the merits. Id. In particular, they
argue that Plaintiff cannot bring this claim because he has not exhausted his administrative
remedies. In addition, all Pennsylvania Department of Corrections’ (“DOC”) buildings have
been tobacco free since 2008. Id. Beginning on July 1, 2019, all DOC buildings and facilities
are tobacco free and misconducts are issued to inmates that violate this policy. Id. Inmates no
longer have access to tobacco, and therefore there is no ongoing concern related to tobacco
smoke. Defendants further argue that an injunction would cause more harm to the non-moving
party, because strong efforts have already been made to prevent smoking, and additional
enforcement efforts are not feasible.
Preliminary injunctive relief is an extraordinary remedy and should issue only in limited
circumstances. 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. Exp ress 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 B3d 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.
__In assessing the second factor, a court may not grant preliminary injunctive relief unless
the plaintiff can show “immediate irreparable injury,” which is more than merely serious or
substantial harm. ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987). Additionally,
“the claimed injury cannot merely be possible, speculative, or remote.” Dice v. Clinicorp, Inc.,
887 F. Supp. 803, 809 (W.D. Pa. 1995). Thus, an injunction shall not be issued “simply to
eliminate a possibility of a remote future injury.” Acierno v. New Castle Cty., 40 F.3d 645, 655
(3d Cir. 1994) (quoting Cont’1.Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351 (3d Cir.
1980)).
Upon review, Plaintiff does not satisfy the requirements for granting injunctive relief. He
does not demonstrate a likelihood of immediate, irreparable injury if the Court does not grant
relief, because tobacco use already is not permitted at SCI Mercer. ECF No. 28-2 at 51. Inmates
are not allowed to purchase or possess tobacco products, and these products are confiscated as
contraband if found. Id. at 49 and 51. Because Plaintiff cannot establish one of the “gateway .
factors,” the instant Motion lacks merit and no further analysis is necessary. See Reilly, 858
F.3d at 179. Accordingly, Plaintiff's Motion for Preliminary Injunction is denied.
WHEREFORE, it is nereey ORDERED that Plaintiffs Motion for Preliminary
Injunction/Temporary Restraining Order, ECF No. 5, is 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. .
SO ORDERED this 44 day of January, 2020.
BY THE COURT:
4 (he De
MAUREEN P. KPLLY
UNIRED SFATES MAGISTRATE JUDGE
ce: CORDIRO BROWN
- LT-6439
6 Morris Street
Portsmouth, VA 23707 .
Raymond Cordiro Brown
LT6439
SCI-Mercer
801 Butler Pike
Mercer, PA 16137
All counsel of record via CM/ECF.
oe