IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

THOMAS RADFORD, :

:

Plaintiff, :

:

vs. : CIVIL ACTION 14-0527-KD-C

:

C. MARSHALL, et al., :

:

Defendant(s). :

REPORT AND RECOMMENDATION

Plaintiff, an Alabama prison inmate, brings this action pursuant to 42 

U.S.C. § 1983 claiming constitutional violations with regard to the living 

conditions existing in the Alabama prison facility to which he is assigned. (Docs. 

1 & 10) He has also moved for the entry of a preliminary injunction pursuant to 

Rule 65(a) Federal Rules of Civil Procedure. (Docs. 10 & 12) These matters have

been referred to the undersigned pursuant to 28 U.S.C. § 636 and Local Rule 

72.2(c)(4) as is the practice in this Court. After careful consideration of the 

motions for a preliminary injunction and supporting documents, it is 

recommended that the motions be DENIED WIHTOUT PREJUDICE for the 

reasons set forth below.

I. BACKGROUND

Plaintiff’s first motion for a preliminary injunction is imbedded in a 

second complaint filed on December 9, 2014. (Doc. 10) It appears from reading 

this document that plaintiff is concerned with the lack of proper and adequate 

indoor heating and hot water in advance of the winter season. His specific 

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request is that the defendants be immediately ordered to provide plaintiff and 

similarly situated inmates1 with indoor heart and hot water. It appears that the 

heating problems occurred in November 2014 and the promises of repair to the 

system had not been kept as of the filing of the amended complaint. (Id. at 3)

The second motion has included additional defendants and does not

seem to be related to the first motion. It appears that upon plaintiff’s transfer to 

Fountain/J.O. Davis Correctional Facility in July 2014, he began to have 

problems that resulted in his receiving “many disciplinaries.” (Doc. 12 at 1) His 

complaints have been and continue to be that the responsible officials are 

violating “health and fire codes.” (Id.) Specifically, he identifies four alleged 

violations: (1) that he is confined in a nine-by-twelve foot living space with 

thirty-five other inmates without ventilation, fire alarms, lights and fire 

sprinklers, (2) he is required to attend drug classes in a twelve-by-nine foot 

classroom with thirty-five other inmates without fire alarms, ventilation, water 

sprinklers or an appropriate exit plan, (3) his family and friends are forced to 

meet with him in a twelve-by-nine foot visiting yard serving four hundred 

inmates, and (4) the fire evacuation plan for the facility is inadequate.

II. STANDARD OF REVIEW

“The grant or denial of a preliminary injunction is within the sound 

discretion of the trial court and will not be disturbed absent a clear abuse of 

discretion.” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.2002). In order to 

succeed on his motion for the entry of a preliminary injunction, Mr. Radford 

must establish four prerequisites: (1) a substantial likelihood of success on the 

 1 This case is not proceeding as a class action.

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merits, (2) a substantial threat of irreparable injury if the injunction were not 

granted, (3) that the threatened injury to the plaintiff outweighs the harm an 

injunction may cause the defendant, and (4) that granting the injunction would 

not disserve the public interest. Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 

1257, 1265 (11th Cir.2001) (internal citation and quotation marks omitted). 

“A preliminary injunction is an extraordinary remedy never awarded as 

of right. In each case, courts must balance the competing claims of injury and 

must consider the effect on each party of the granting or withholding of the 

requested relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24, 

129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (internal citation and quotation marks 

omitted). Therefore, motions for preliminary injunctions should “not to be 

granted until the movant clearly carries the burden of persuasion as to the four 

prerequisites. The burden of persuasion in all of the four requirements is at all 

times upon the plaintiff.” Ne. Fl. Chapter of the Ass'n of Gen. Contractors of Am. v. 

City of Jacksonville, Fla., 896 F.2d 1283, 1285 (11th Cir.1990) (internal citation and 

quotation marks omitted). 2

III. Analysis

A. Procedural Problems.

Rule 65 of the Federal Rules of Civil Procedure provides that “the court

may issue a preliminary injunction only on notice to the adverse party.” 

Fed.R.Civ.P. 65(a). As a preliminary matter, Plaintiff's motions for preliminary 

injunctions do not comply with Rule 65(a)'s important procedural notice 

requirement. Here, Plaintiff has not demonstrated that his Amended Complaint, 

 2 Plaintiff has not specifically identified these prerequisites in his motion or provided any 

analysis of how the evidence he has presented would establish each necessary element 

of his motion.

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or his Motion for a Preliminary Injunction have been served on any named 

defendant. In the motion filed on December 9, 2014 (Doc. 10), plaintiff states that 

he served a copy of his motion on “General Counsel.” (Id. at 5) None of the 

parties have been served, however, and the record does not show the appearance 

of counsel for any defendant. As to the second motion for a preliminary 

injunction, plaintiff simply states that he mailed a copy of his motion to a 

number of state officials at their business addresses. (Doc. 12 at 6) Thus, proper 

notice has not been provided the state official(s) that would have the authority to 

comply with any injunctive order issued by this Court.

B. Burden of Persuasion

Even with the less stringent pleading requirements applicable to pro se

prisoner pleadings, it cannot be said that the plaintiff has met his burden of 

proving that a preliminary injunction should issue. With regard to heating and 

hot water, the inference is that the facility has a problem to be repaired and the 

officials have promised to make the repairs. Even though it certainly would be a 

health hazzard to go without heat and hot water during the winter months, 

plaintiff’s factual statements do not support an inference that he will be 

successful in establishing a deliberate disregard of his need for humane and safe

living conditions. At best, he has shown that the officials have recognized the 

problem but have not kept their promises of repair. It is unknown, however, if 

their inaction is based on conditions over which they have control. These 

allegations do not provide evidence supporting the entry of an order granting 

extraordinary and drastic relief.

The same is true for the demand that living spaces, classrooms, visitation 

yards and the fire exit plan of the prison should be modified so as to comply 

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with unspecified health and fire codes. Although it may ultimately be found that 

the alleged violation of state codes would also establish a violation of plaintiff’s 

Eighth Amendment rights, the current pleadings are too confusing, vague and 

lacking in substance to either grant the motions as plead or to set a hearing on 

the motions. Instead, the better idea would be to wait until the defendants have 

filed a Special Report (See Order, Doc. 9) before deciding whether a hearing is 

necessary on the plaintiff’s requests for injunctive relief. 

Accordingly, it is RECOMMENDED that the plaintiff's motions for 

preliminary injunctions be DENIED WITHOUT PREJUDICE. If a hearing is 

necessary on the requested injunctive relief, the plaintiff may present these 

arguments during that hearing.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to this recommendation or 

anything in it must, within fourteen (14) days of the date of service of this 

document, file specific written objections with the Clerk of this Court. See 28 

U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); S.D. ALA. L.R. 72.4. The parties should 

note that under Eleventh Circuit precedent, “the failure to object limits the scope 

of [] appellate review to plain error review of the magistrate judge’s factual 

findings.” Dupree v. Warden, 715 F.3d 1295, 1300 (11th Cir. 2013) (emphasis in 

original). In order to be specific, an objection must identify the specific finding or 

recommendation to which objection is made, state the basis for the objection, and 

specify the place in the Magistrate Judge’s report and recommendation where 

the disputed determination is found. An objection that merely incorporates by 

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reference or refers to the briefing before the Magistrate Judge is not specific.

DONE and ORDERED this the 7th day of January 2015.

s/WILLIAM E. CASSADY

UNITED STATES MAGISTRATE JUDGE

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