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Davis v. McCain

United States District Court, W.D. Louisiana, Alexandria Division

September 19, 2018




         Plaintiff Robert Davis filed a Motion for a Preliminary Injunction (Doc. 39). Davis's Motion for Preliminary Injunction should be granted.

         I. Background

         Davis filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983, in forma pauperis, which was amended twice (Docs. 1, 26, 30). Davis is confined in the Raymond Laborde Correctional Center (RLCC”) in Cottonport, Louisiana. The remaining Defendants are Sandy McCain (former warden of RLCC), Troy Poret (Deputy Warden for Security at RLCC), Rodney Slay, (Deputy Warden for Administration at RLCC)), Blaine Villemarette (Assistant warden for the medical department at RLCC), Jude Pitre (Business Office Administrative Director at RLCC), Lt. Bonnette (canteen lieutenant at RLCC), and James LeBlanc (Louisiana Secretary of the Department of Corrections). Davis alleges an Eighth Amendment claim of unconstitutional conditions of confinement. Davis claims that he, and the other inmates, are being continually exposed to secondhand smoke.[1] Davis seeks a declaratory judgment, injunctive relief, and monetary damages (Doc. 1).

         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 may cause him irreparable harm.

         Davis 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).[2] 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).

         Davis' Motion for a Temporary Restraining Order was denied (Docs. 45, 48). A hearing was held before the undersigned as to Davis's Motion for Preliminary Injunction (Docs. 45, 48, 59).

         II. Law and Analysis

         A. The law as to preliminary injunction.

         In 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). The burden of persuasion on all four requirements for a preliminary injunction is on the plaintiff. See Canal Authority, State of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974).

         The grant or denial of a preliminary injunction rests in the sound discretion of the trial judge, and will not be disturbed upon review unless there is an abuse of discretion. See Commonwealth Life Ins. Co. v. Neal, 669 F.2d 300, 303 (5th Cir. 1982). If granted, an injunction must “state its terms specifically” and “describe in reasonable detail” the conduct restrained or required. See Fed.R.Civ.P. 65(d); see also Daniels Health Sciences, L.L.C. v. Vascular Health Sciences, L.L.C., 710 F.3d 579, 586 (5th Cir. 2013). The court “must narrowly tailor an injunction to remedy the specific action which gives rise to the order.” See Daniels Health Sciences, L.L.C., 710 F.3d at 586 (quoting John Doe # 1 v. Veneman, 380 F.3d 807, 818 (5th Cir. 2004)).

         B. The Eighth Amendment and second-hand smoke in prisons.

         When the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs, including food, clothing, shelter, medical care, and reasonable safety, it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (and cases cited therein).

         A prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation must be, objectively, sufficiently serious and the prison official's act or omission must result in the denial of the minimum civilized measure of life's necessities. Second, a prison official must have a sufficiently culpable state of mind-deliberate indifference to a prisoner's constitutional rights-to be subjected to a' 1983 liability to that prisoner. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hare, 74 F.3d at 648. A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety. See Farmer, 511 U.S. at 837. The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. See Farmer, 511 U.S. at 837. An official's failure to alleviate a significant risk that he should have perceived but did not, while not cause for commendation, cannot under our cases be condemned as the infliction of punishment. See Farmer, 511 U.S. at 837; see also Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999).

         In 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 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.

         In Helling, 509 U.S. at 35, the Supreme Court also held that an inmate states a cause of action under the Eighth Amendment by alleging that prison officials have, with deliberate indifference, exposed him to levels of ETS that pose an unreasonable risk of serious damage to his future health.

         This Court has previously taken judicial notice of the United States Surgeon General's June 2006 report, [3] which establishes conclusively that exposure to secondhand smoke is unhealthy and dangerous, and that scientific evidence shows there is no safe level of exposure to second-hand smoke. See Hicks, 2009 WL 2969768, *6-*7; F.R.E. rule 201. The Surgeon General found that exposure to second-hand smoke has immediate adverse effects on the cardiovascular system and causes coronary heart disease and lung cancer.

         On the subjective component, the adoption of a smoking policy bears heavily on the inquiry into deliberate indifference. See Hicks, 2009 WL 2969768, *5. In 2006, Louisiana enacted the Louisiana Smoke Free Air Act, 2006 La. Acts No. 815, in La. R.S. 40:1291.2, et seq., [4] which prohibits smoking in all public places and, effective August 15, 2009, ...

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