United States District Court, W.D. Kentucky
YALE LARRY BALCAR et al. PLAINTIFFS
AARON SMITH et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge.
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
MOTION FOR EXTENSION OF TIME TO FILE A REPLY
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.
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).
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.
SUMMARY OF MOTION FOR A PRELIMINARY INJUNCTION
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.
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.
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.