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Balcar v. Smith

United States District Court, W.D. Kentucky

December 19, 2016

YALE LARRY BALCAR et al. PLAINTIFFS
v.
AARON SMITH et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge.

         This matter is before the Court upon a motion for a preliminary injunction (DN 8) and a motion for an extension of time to file a reply (DN 18) by Plaintiffs Yale Larry Balcar and Carl J. Perry, Jr., convicted prisoners currently incarcerated at Kentucky State Reformatory (KSR). For the following reasons, Plaintiffs' motion for an extension of time will be granted and their motion for a preliminary injunction will be denied.

         I. MOTION FOR EXTENSION OF TIME TO FILE A REPLY

         This 42 U.S.C. § 1983 civil rights action was initiated on September 12, 2016. Although Plaintiffs have been granted leave to proceed in forma pauperis, this action has not yet been screened pursuant to 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled on other grounds by Jones v. Bock, 549 U.S. 199 (2007), and no Defendant has been served.

         On October 14, 2016, Plaintiffs filed the motion for a preliminary injunction that is now before the Court. The Court then ordered Defendants to file a response to the motion within 14 days and for Plaintiffs to file a reply within seven days of service of Defendants' response. Defendants filed a response on November 17, 2016 (DN 12), and an amended response on November 18, 2016 (DN 17). On November 21, 2016, Plaintiffs filed a motion for an extension of time to file a reply (DN 18) “due to the prison mail system.” Plaintiffs then filed their reply on November 25, 2016 (DN 19), and a reply to the amended response on December 1, 2016 (DN 22).

         Upon review, the Court will grant Plaintiffs' motion for an extension of time to file a reply and will consider the arguments made in each of the above-mentioned filings in its analysis of the motion for a preliminary injunction.

         II. SUMMARY OF MOTION FOR A PRELIMINARY INJUNCTION

         In their motion for a preliminary injunction, Plaintiffs ask the Court to order KSR Warden Aaron Smith “to cease his demolition on two dorms at this time and more on a later date.” Plaintiffs state as follows:

[It has] come to [their] attention that KSR is going to do this demolition at night because they do not want to bring in Asbestos Clean Up Teams. KSR has the demolition equipment on site and ready to start demolition at any time. Also they are digging a big hole at this time to bury the building that is full of asbestos.

         Plaintiffs contend that Defendants are violating state and federal law by conducting this demolition without an “asbestos team for environment safety.” Plaintiffs state that they will suffer irreparable harm to their health if the Court does not grant a preliminary injunction. Plaintiffs attach to their motion a jointly signed affidavit which avers:

This case is about the way asbestos and the way KSR want to hide the true. They want to tear down the building at night because they do want a team to remove the asbestos right. As of the Oct. 11-2016, [KSR is] digging a big hole to put the building in. They are ready to start tearing down the building at any time. The Plaintiffs has proof of asbestos here at KSR.

(DN 8-1).[1]

         In Defendants' response, they argue that Plaintiffs are not entitled to preliminary injunctive relief. In support of their motion, Defendants attach an affidavit from Mr. Chris Kleymeyer, the Division Director in the Office of Adult Institutions with Kentucky Department of Corrections (KDOC)(DN 12-1). In his affidavit, Mr. Kleymeyer states that KDOC has requested permission to tear down several dormitories at KSR but that, to date, the Commonwealth Kentucky Finance and Administration Cabinet has not granted permission for the dormitories to be demolished.

         A. ...


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