United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes United States Magistrate Judge.
the Court is a motion for injunctive relief filed by
Plaintiff Robert Davis (''Davis'') (Doc. 39).
Davis is confined in the Raymond Laborde Correctional Center
in Cottonport, Louisiana (“RLCC”). Davis claims
that he, and the other inmates, are being continually exposed
to environmental tobacco smoke (“ETS”). Davis
filed a Motion for a Temporary Restraining Order and
Preliminary Injunction (Doc. 39) to have the Court order the
prison officials to prohibit all smoking in the prison. Davis
contends that exposure to ETS threatens him with irreparable
contends inmates purchase smokeless tobacco and dry it in the
microwave, giving off an offensive smell throughout the unit
(Doc. 39). The tobacco is then rolled in “thin sheets
of Bible pages” and smoked (Doc. 39). Davis
alleges inmates are smoking in the common areas, which are
permeated with ETS (Doc. 39). Davis alleges the ETS causes
him “to become dizzy, coughing, breathing difficulties,
and respiratory problems” (Doc. 39).
of the Federal Rules of Civil Procedure provides, in
pertinent part, as follows:
(b)(1) Issuing Without Notice. The court may issue a
temporary restraining order without written or oral notice to
the adverse party or its attorney only if (A) specific facts
in an affidavit or a 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, and (B) the movant's attorney certifies in
writing any efforts made to give the notice and the reasons
why it should not be required.
order for Davis to obtain a preliminary injunction, he must
show: (1) a substantial likelihood that his cause will
succeed on the merits; (2) a substantial threat of
irreparable injury if the injunction is not granted; (3) that
the threatened injury outweighs the threatened harm the
injunction may do to the opposing party; and (4) that the
court granting the injunction will not disserve the public
interest. See Piedmont Heights Civic Club, Inc. v.
Moreland, 637 F.2d 430 (5th Cir. 1981).
Helling v. McKinney, 509 U.S. 25, 33-35 (1993), the
Supreme Court held that prison officials may violate the
Eighth Amendment's prohibition against cruel and unusual
punishment by exposing inmates to an excessive level of ETS.
The Supreme Court identified both objective and subjective
elements. See Hicks v. Correctional Corp. of
America, 2009 WL 2969768, *5 (W.D. La. 2009).
Objectively, a plaintiff must show that he himself is being
exposed to unreasonably high levels of ETS. The objective
factor not only embraces the scientific and statistical
inquiry into the harm caused by ETS, but also whether society
considers the risk to be so grave that it violates
contemporary standards of decency to expose anyone
unwillingly to such a risk. See Hicks, 2009 WL
2969768, *5. Subjectively, the plaintiff must prove
deliberate indifference, considering the officials'
current attitudes and conduct and any policies that have been
enacted. See Hicks, 2009 WL 2969768, *5. Therefore,
to obtain relief, a prisoner must prove not only that the
level of ETS to which he is exposed is unreasonable, but also
that prison officials have shown “deliberate
indifference” to the health risks associated with
second hand smoke. See Hicks, 2009 WL 2969768, *5.
subjective component, the adoption of a smoking policy bears
heavily on the inquiry into deliberate indifference. See
Hicks, 2009 WL 2969768, *5. Louisiana enacted the
Louisiana Smoke Free Air Act (2007), 2006 La. Acts No. 815,
in La. R.S. 40:1291.2, et seq.,  which prohibits smoking in
all public places and, effective August 15, 2009, prohibits
smoking in any state, local, or private correctional
facility. La. R.S. 40:1291.11(B)(14).
objective component, this Court has previously held that the
United States Surgeon General's June 2006 report,
establishes conclusively that exposure to second hand smoke
is unhealthy and dangerous, and that scientific evidence
shows there is not safe level of or exposure to second hand
smoke. See Hicks v. Corrections Corp. of America,
2009 WL 2969768, *6-*7 (W.D. La. 2009).
is not entitled to a temporary restraining order under
Fed.R.Civ.P. rule 65. He has not shown that immediate and
irreparable injury, loss, or damage will result to him before
the adverse parties can be heard in opposition. Nor has Davis
certified in writing any efforts made to give notice, and the
reasons why it should not be required.
Davis may be entitled to injunctive relief to preclude prison
authorities from violating the law prohibiting smoking in
prison. The United States Court of Appeals for the Fifth
Circuit has held that allegations such as Davis's are
sufficient to state a claim for ETS exposure. See Bruce
v. Little, 568 Fed.Appx. 283, 286 (5th Cir. 2014). If
Davis can prove his claim, there is a substantial likelihood
that his cause will succeed on the merits. Also, obviously,
requiring the prison to adhere to the statutory prohibition
against smoking in any state, local or private correctional
facility will not cause it injury or disserve the public
this case should be set for a hearing on the issue of whether
a preliminary injunction should be issued to enforce the
statutory prohibition against any and all ...