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26 REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ROBERT WARD GARRISON,

Plaintiff,

v.

WASHINGTON STATE DEPARTMENT OF

CORRECTIONS, et al.,

Defendants.

 Case No. C05-5837 FDB/KLS

REPORT AND RECOMMENDATION

 NOTED FOR: January 11, 2008

Presently before the Court is Plaintiff’s “Motion for Nominal Sanctions and for Temporary

Restraining Order”. (Dkt. # 116). Having carefully reviewed the motion, Defendants’ objection

(Dkt. # 118), and balance of the record, the undersigned recommends that Plaintiff’s motion be

denied. 

I. FACTUAL BACKGROUND AND RELIEF REQUESTED

 Plaintiff requests a temporary restraining order directing Defendant Department of

Corrections (DOC) to have all vacated special housing unit cells cleaned by certified professionals

supervised by an officer not assigned to a duty shift in the special housing unit “as they are

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26 REPORT AND RECOMMENDATION - 2

motivated by the job getting done as quickly as it can, rather then [sic] thoroughly, so they can

resume their on-duty not performing any task shift time.” (Dkt. # 116, p. 1). Plaintiff also requests

that sanctions in the amount of $1,500.00 be assessed against Defendants for falsely representing to

the Court that Plaintiff is not at risk for being housed in a dirty cell. (Id., p. 8).

Plaintiff is in the custody of the DOC at the Washington State Penitentiary in the Intensive

Management Unit (IMU). (Dkt. # 118, Exh. 1, Attach. A, p. 1). Plaintiff was incarcerated at the

Washington Corrections Center (WCC) at the time of the events alleged in his Amended Complaint.

(Dkt. # 10). At issue in this motion are Plaintiff’s allegations that he was placed in an unsanitary

cell. (Id., p. 17). Plaintiff admits that he was denied the opportunity to clean his cell because he

“papered” his window with kites. (Id., p. 20). He also smeared his cell with his own feces. (Id., p.

22). 

Plaintiff alleges that he has been transferred and assigned eleven different special housing

cells which did not have their surfaces cleaned and disinfected. (Dkt. # 116, p. 2). For purposes of

this motion, Plaintiff utilizes his own scale of 0.01 to 10.00 to rate the cleanliness of a cell. Plaintiff

describes the scale rating as 10 being a “hospital’s operating room and 0.01 being the inside of a

septic-tank after being pumped empty.” (Id.). For example, Plaintiff states that he was transferred

on October 29, 2007 to a cell with a scale rating of 8.5 and on November 1, 2007 to a cell with a

rating of 2.65. 

Plaintiff further alleges that he witnessed a cell transfer in which the porter’s cleaning was

not properly observed by a Correction Officer and which was performed in mere seconds. (Id., p.

3). Plaintiff also alleges that WSP’s SEG/IMU Units have no proper training classes to learn how

to correctly clean cells and showers and that cleaning jobs are assigned to any Level IV prisoner on

the tier or pod. (Id., p. 5). 

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26 REPORT AND RECOMMENDATION - 3

Plaintiff also alleges to have contracted a sickness from the IMU cells, including a runny

nose and red dots on his legs, arms, chest and back, which he did not have prior to be housed in the

IMU. (Id., pp. 8).

A. Standard for Prospective Relief

Under the Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA), Plaintiff is not entitled

to prospective relief unless the court enters the necessary findings required by the Act: 

The court shall not grant or approve any prospective relief unless the court finds that

such relief is narrowly drawn, extends no further than necessary to correct the

violation of a Federal right, and is the least intrusive means necessary to correct the

violation of the Federal right. The court shall give substantial weight to any adverse

impact on public safety or the operation of a criminal justice system caused by the

relief. 

18 U.S.C. § 3626(a)(1)(A). 

In civil rights cases, injunctions must be granted sparingly and only in clear and plain cases.

Rizzo v. Goode, 423 U.S. 362, 378 (1976). This holding applies even more strongly in cases

involving the administration of state prisons. Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254

(1987). “Prison administration is, moreover, a task that has been committed to the responsibility of

those [executive and legislative] branches and separation of powers concerns counsels a policy of

judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason

to accord deference to the appropriate prison authorities.” Id.

In order to justify the extraordinary measure of injunctive relief under Federal Rule of Civil

Procedure 65, the moving party bears a heavy burden. Canal Authority of the State of Florida v.

Callaway, 489 F.2d 567 (5th Cir. 1974). A party seeking a preliminary injunction must fulfill one of

two standards: the “traditional” or the “alternative.” Johnson v. California State Bd. of

Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995); Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir.

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1987). Although two tests are recognized, they are not totally distinct tests. Rather, they are

“extremes of a single continuum.” Funds for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir.

1992). 

Under the traditional standard, a court may issue preliminary relief if it finds that: (1) the

moving party will suffer irreparable injury if the relief is denied; (2) the moving party will probably

prevail on the merits; (3) the balance of potential harm favors the moving party; and (4) the public

interest favors granting relief. Cassim, 824 F.2d at 795. Under the alternative standard, the moving

party may meet its burden by demonstrating either (1) a combination of probable success and the

possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships

tips sharply in its favor. Id. at 795. Under either test, Plaintiff fails to carry his burden to obtain

preliminary injunctive relief in this case. 

B. Plaintiff Lacks Standing and Fails to Show Irreparable Harm

Persons seeking to invoke the power of the federal courts must allege an actual case or

controversy in order to have standing. A plaintiff must allege some threatened or actual injury

before a federal court may assume jurisdiction. U.S.C.A. Constitution, Article III § 1: 

Past exposure to alleged illegal conduct does not in itself show a present case or controversy

regarding injunctive relief, however, if unaccompanied by any continuing present adverse effects. 

O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669, 676, 38 L. Ed. 2d 674 (1974). In addition,

past exposure to alleged harm is largely irrelevant when analyzing claims of standing for injunctive

relief that are predicated upon threats of future harm. Nelsen v. King County, 895 F.2d 1248 (9th

Cir. 1990). The burden of showing a likelihood of reoccurrence is firmly placed upon the Plaintiff.

Nelsen, at 1251. 

A plaintiff may not speculate or rely on conjecture. Nelsen, 895 F.2d at 1252-53 (quoting

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Los Angeles v. Lyons, 461 U.S. 95 (1981) and O'Shea, supra). Indeed, the basic prerequisite for

standing when a person seeks equitable relief is the real and immediate danger of irreparable injury

and a lack of adequate remedy at law. Lyons, 461 U.S. at 103. 

Plaintiff seeks an order requiring DOC to have certified professionals instructed to clean all 

cell surfaces in all special housing units for all DOC inmates. This request is beyond the scope of

Plaintiff’s claims in this lawsuit. Although Plaintiff sought class certification, the undersigned has

recommended denial of that motion on the grounds, inter alia, that Plaintiff has no standing to seek

a remedy on behalf of all DOC inmates. (Dkt. # 122). In addition, Plaintiff’s “scale” by which he

rates the cleanliness of cells is merely speculative and based on his subjective observations. The

Court has no standard or common criteria upon which to judge the scale or Plaintiff’s observations. 

As to his claims of sickness, Plaintiff has provided no supporting documentation that his

runny nose or red dots are actually linked to the cleanliness of his cell. Plaintiff has offered no

evidence that he has sought medical attention.

As Plaintiff has not shown and cannot show immediate threat of irreparable injury, the

undersigned recommends that his claim for injunctive relief should be denied.

C. Plaintiff Has Not Shown That He Is Likely To Succeed On the Merits Of His Case

It is only “the unnecessary and wanton infliction of pain . . . [which] constitutes cruel and 

 unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319

(1986), citing Ingram v. Wright, 430 U.S. 651 (1977). “[I]f a particular condition or restriction . . .

is reasonably related to a legitimate governmental objective, it does not, without more, amount to

‘punishment.’” 441 U.S. at 539. “[T]he effective management of a detention facility . . . is a valid

objective that may justify imposition of conditions” that are discomforting and restrictive, without

the inference that such restrictions are intended as punishment. Id. at 540. 

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1

Defendants refer to uncontested evidence that DOC properly cleans its cells which they

filed in support of their motion for summary judgment. (Dkt. 97, Exh. 2). That motion is not the

subject of this report and recommendation. However, the Court notes that Plaintiff has not yet filed

REPORT AND RECOMMENDATION - 6

Moreover, “[it] is obduracy and wantonness, not inadvertence or error in good faith, that

characterize the conduct prohibited by the Cruel and Unusual Punishment Clause, whether that

conduct occurs in connection with establishing conditions of confinement, supplying medical needs,

or restoring official control over a tumultuous cellblock.” Wilson v. Seiter, 501 U.S. 294, 299

(1991). A temporary condition, with no medical effects, does not rise to the level of an Eighth

Amendment claim. May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997).

The objective component of an Eighth Amendment claim requires that the deprivation must

be “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 833 (1994). “[O]nly those deprivations

denying “the minimal civilized measure of life?s necessities?. . . are sufficiently grave to form the

basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298 (citing Rhodes v. Chapman, 452

U.S. 337, 347 (1981)). The subjective component relates to the defendant’s state of mind, and

requires deliberate indifference. Farmer, 511 U.S. at 833. The subjective prong or second

requirement that must be shown before an Eighth Amendment violation can be found is that the

prison official must have a “sufficiently culpable state of mind.” Id. “To be cruel and unusual, a

punishment must involve more than an ordinary lack of due care for the prisoner’s interests or

safety.” Whitley v. Albers, 475 U.S. 312, 319, (1986). “In prison-conditions cases that state of mind

is one of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 833, citing

Wilson, 501 U.S. at 302-303 (other citations omitted). 

Plaintiff has not shown that he is likely to succeed on the merits of his case. Although he

alleges that the cells at WCC are not properly clean as judged against his own scale, there is nothing

in the record to support Plaintiff’s allegations.1

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a response to that motion nor provided controverting evidence with this motion.

REPORT AND RECOMMENDATION - 7

As Plaintiff has not shown that he is likely to succeed on the merits of his claims, the

undersigned recommends that the injunctive relief he seeks may be denied on that basis as well.

D. Plaintiff Has Not Shown That the Balance Of Potential Harm Favors The Moving

Party 

Plaintiff has failed to show how being granted a preliminary injunction would be in the

public interest or that the balance of potential harms favors him. Defendants concede that there is a

health interest in providing clean cells for offenders. (Dkt. # 118). However, Plaintiff has provided

no evidence that the cells are not properly cleaned or that any offenders’ health is at risk. It is clear

that he disagrees with the cleaning methods used at WCC, but his unsupported and subjective

observations are not sufficient to support the extraordinary relief he seeks. Plaintiff’s request for

relief must be weighed against various safety and security risks which may arise from his

suggestion of using staff from other areas of the prison. His request must also be weighed against

the increased cost for staff training in cleaning cells instead of utilizing inmate labor. 

As Plaintiff has failed to show how the balance of potential harm favors his request for

preliminary relief, the undersigned recommends that his motion be denied.

E. Nominal Sanctions

There is no basis for Plaintiff’s claim that the Court should assess nominal damages against

Defendants. Plaintiff has provided no authority or evidence to support such a claim and the

undersigned recommends that such request be denied.

II. CONCLUSION

For the foregoing reasons, the undersigned recommends that Plaintiff’s motion for preliminary

injunction (Dkt. # 116) be DENIED. A proposed order accompanies this Report and

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Recommendation. 

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure,

the parties shall have ten (10) days from service of this Report to file written objections. See also

Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes

of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on January 11, 2008, as noted in the

caption. 

DATED this 13th day of December, 2007. 

A

Karen L. Strombom

United States Magistrate Judge

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