United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
Robert Davis filed a Motion for a Preliminary Injunction
(Doc. 39). Davis's Motion for Preliminary Injunction
should be granted.
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. Davis seeks a
declaratory judgment, injunctive relief, and monetary damages
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.
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.
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).
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,
Law and Analysis
The law as to preliminary injunction.
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
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)).
The Eighth Amendment and second-hand smoke in
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).
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).
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.
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
Court has previously taken judicial notice of the United
States Surgeon General's June 2006 report,  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.
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.,  which prohibits smoking in all
public places and, effective August 15, 2009, ...