United States District Court, E.D. Kentucky, Central Division, Frankfort
MAGISTRATE JUDGE'S REPORT AND
B. ATKINS, UNITED STATES MAGISTRATE JUDGE
January 17, 2019, filed a motion for protection claiming that
the Franklin County Regional Jail where he is currently
incarcerated is retaliating against him for filing the
present lawsuit. [R. 21]. As proof of this retaliation Austin
states that: (1) the Defendant falsely claims he made
suicidal statements and as punishment placed him in a cold
cell while naked and forced him to stand for hours; (2) he
was placed in a cell with another inmate who is a member of
the Arian Brotherhood who has expressed his hatred toward
Jews, although the cellmate is not aware that Austin is
Jewish; and (3) his cell is extremely cold. [R. 21 at 2-4].
Austin requests that he be moved to a differently
correctional facility. Id. at 5. As Ordered, the
Defendant filed a Response to Plaintiff's Motion for
Protection. [R. 23]. For the foregoing reasons, it is
recommended that Plaintiff's Motion be denied.
requests to be moved from his current correctional facility
to a different one. [R. 21 at 5]. Thus, Plaintiff's
motion will be construed as a motion for preliminary
injunction. Roach v. Hiland, Civil Action No.
5:12-CV-P169-R, 2013 WL 1501424, at *1 (W.D. Ky. April 11,
2013) (as Plaintiff requests an “immediate”
transfer, the Court construes his motion as a motion for
preliminary injunction); McIntosh v. Ferrall, Civil
Action No. 1:10-CV-P79-M, 2011 WL 649999, at *1 (W.D. Ky.
Feb. 11, 2011) (a preliminary injunction is an injunction
that is issued to protect a plaintiff from irreparable injury
and to preserve the court's power to render a meaningful
decision after a trial on the merits). Four factors are used
in determining whether to issue a preliminary injunction: (1)
whether the movant is likely to succeed on the merits; (2)
whether the movant will suffer irreparable harm if the
injunction is not issued; (3) whether the issuance of the
injunction would cause substantial harm to others; and (4)
whether a preliminary injunction would be in the public
interest. Overstreet v. Lexington-Fayette Urban Cnty.
Gov't, 305 F.3d 566, 573 (6th Cir. 2002); Wilson
v. Wilkinson, 28 Fed.Appx. 465, 466 (6th Cir. 2002).
“These factors are not prerequisites, but are factors
that are to be balanced against each other.”
Id. A preliminary injunction is an extraordinary
remedy which should be granted only if the movant carries his
or her burden of proving that the circumstances clearly
demand it. Leary v. Daeschner, 228 F.3d 729, 739
(6th Cir. 2000).
has failed to carry his burden by providing evidence or proof
that the circumstances of his case clearly demand the
issuance of a preliminary injunction. First, Austin cannot
show that he will be successful on the merits. The relief
that Austin seeks in his preliminary injunction differs from
the relief sought in his complaint. Brock v. Wright,
Civil Action No. 4:15-CV-00065-JHM, 2017 WL 4478013, * 2
(W.D. Ky. Oct. 3, 2017) (citing Colvin v. Caruso,
605 F.3d 282, 300 (6th Cir. 2010) (a party moving for a
preliminary injunction must necessarily establish a
relationship between the injury claimed in the party's
motion and the conduct asserted in the complaint.)).
Austin's sole claim in his complaint pertains to the
Defendant's policy or custom denying inmates access to
religious items. The accusations made in the present motion
have to do with the conditions of Austin's confinement.
Consequently, Austin has not shown that he is likely to
succeed on the merits as his new accusations fail to provide
a relationship to his complaint. Brock, 2017 WL
4478013 at * 2; See also Devos v. Herrington, 42
F.3d 470, 471 (8th Cir. 1994) (holding that “new
assertions” of retaliation and mistreatment
“cannot provide the basis for a preliminary
Austin cannot show the irreparable harm necessary to support
the issuance of a preliminary injunction. Primarily, a
prisoner has no inherent constitutional right to be housed in
a particular institution. Beard v. Livesay, 798 F.2d
874, 876 (6th Cir. 1986) (citing Meachum v. Fano,
427 U.S. 215, 224 (1976)). It is only under rare and extreme
situations where an inmate's life is in imminent or grave
danger that a federal court has the authority to order a
state to transfer a prisoner. See, e.g., Walker
v. Lockhart, 713 F.2d 1378, 1383 (8th Cir. 1983);
Streeter v. Hooper, 618 F.2d 1178, 1182 (5th Cir.
1980). Austin has failed to show that his life is in
immediate danger. His motion only shows two possible dangers
to his life. The cold temperature of his cell and his cell
mate. As for his cell mate, while he may be a member of the
“Arian Brotherhood” he has not shown any
aggression towards Austin nor does he know that Austin is
Jewish. To further alleviate this issue, Defendant's
response indicates that Austin has been relocated to a
different cell. [R. 23 at 5]. As for the temperature of his
cell, this claim also does not seem to rise to level of
imminent or grave danger. Not only has he now been moved to a
different cell, but the temperature of the cell block would
affect all inmates. Hence, the temperature of the room is not
targeted at him specifically. Regardless, his accusations
fail to show the irreparable harm necessary for a preliminary
issuing a preliminary injunction in this situation could
cause harm to others and harm the public interest.
“Judicial interference is necessarily disruptive, and
absent a sufficient showing of a violation of constitutional
rights, the public welfare suffers if such extraordinary
relief is granted in the prison context.” Lang v.
Thompson, No. 5:10-CV-379, 2010 WL 4962933, at * 7 (E.D.
Ky. Nov. 30, 2010). “Moreover, the Court's
intervention in internal prison operations without an
urgently compelling and extraordinary reason is viewed as
against public interest.” Brock, 2017 WL
4478013 at *3. Therefore, Plaintiff has failed to carry the
burden that is required to grant his motion. Accordingly,
IT IS HEREBY RECOMMENDED that Plaintiffs
Motion, [R. 21], be DENIED
parties are directed to 28 U.S.C. § 636(b)(1) for a
review of appeal rights governing this Report and
Recommendation. Particularized objections to this Report and
Recommendation must be filed within fourteen (14) days from
the date of service thereof or further appeal is waived.
United States v. Campbell,261 F.3d 628, 632 (6th
Cir. 2001); Thomas v. Ann,728 F.2d 813, 815 (6th
Cir. 1984). General objections or objections that require a
judge's interpretation are insufficient to preserve the
right to appeal. Cowherd v. Million,380 F.3d 909,
912 (6th Cir. 2004); Miller v. Currie,50 F.3d 373,
380 (6th Cir. 1995). A party may ...