Johnson v. Daugaard et al, No. 4:2017cv04043 - Document 20 (D.S.D. 2018)
Court Description: ORDER denying 1 Motion for TRO; denying 1 Motion for Preliminary Injunction; denying 13 Motion for a court order to copy and preserve video footage; Directing Service. Signed by U.S. District Judge Lawrence L. Piersol on 3/22/18. (SLW)
Download PDF
<![CDATA[
self-evaluation process. Id. "A preliminary injunction is an extraordinary remedy." Roudachevski v. AU-American Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011)(citation omitted); see also Hughbanks v. Dooley, 788 F. Supp. 2d 988, 992 (D.S.D. 2011) ("[I]n the prison setting, a request for a preliminary injunction 'must always be viewed with great caution because judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration'")(quoting Gaff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995)). "The burden of proving that a preliminary injunction should be issued rests entirely with the movant." Gaff, 60 F.3d at 520. "Whether a preliminary injunction should issue involves consideration of(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury granting the injunction will inflict on other parties litigation;(3) the probability that movant will succeed on the merits; and (4) the public interest." Dataphase Systems, Inc. v. CL Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981)(en banc). The Eighth Circuit held that"'the failure to show irreparable harm is, by itself, a sufficient ground upon which to deny a preliminary injunction.' "Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996)(quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987)). Moreover, "in the prison context, a request for injunctive relief must always be viewed with great caution because 'judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.'" Gaff, 60 F.3d at 520 (quoting Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)). And, for an injunction to issue "a right must be violated" and that "the court must determine" whether "a cognizable danger of foture violation exists and that danger must be more than a mere possibility." Goff, 60 F.3d at 521 (quoting Rogers v. Scurr, 676 F.2d 1211, 1214(8th Cir. 1982)). Johnson argues that he faces a threat ofirreparable harm to his health. Docket 1 at 3. First, because Johnson's COPD prevents him from being in humid areas, Johnson contends that the inadequately ventilated bathroom creates a risk of Johnson developing pneumonia. Docket 1 at 3. Second, Johnson argues that the bathroom lacks shelves and hooks and forces Johnson to retrieve items from the floor. Id. Johnson's heart condition prevents him from being in "any situation that forces labor[ed] breathing or causes coughing." Id. Johnson, however, does not allege that he has experienced any problems from the humidity or shortness of breath from the lack of amenities. Furthermore, a review of the medical records attached to Johnson's complaint show no medical orders requiring a particular type of bathroom fan or amenities. Thus, Johnson fails to show that this danger is "more than a mere possibility." 10 Johnson argues that he faces a threat ofirreparable harm through continuing deprivation of constitutional rights. Johnson alleges that defendants are deliberately indifferent to his serious medical needs through their interference with his prescribed treatments. Johnson claims to have two physicians' ihstructions but fails to prove the contents of those instructions. Furthermore, Johnson fails to allege that the named defendants knew of the instructions and then disregarded the risk to Johnson's health. Johnson also alleges that defendants are retaliating against him "when he insisted they come into compliance with the ADA." Docket 1 at 2. In alleged retaliation, defendants removed the aforementioned shelves, fans, and hooks. Id. Again, to succeed on a claim of retaliation under the ADA,a plaintiff must establish that(1)he engaged in statutorily protected activity;(2)adverse action was taken against him; and (3) a causal connection exists between the adverse action and protected dLoXWity:Stewart v. Independent Sch. Dist. No. 196,481 F.3d 1034, 1043(8th Cir. 2007). Johnson has yet to demonstrate his likelihood of proving his alleged connection between his grievances and the removal of the shelves, fans, and hooks. In fact, Johnson's attachments demonstrate that defendants informed Johnson that the fans are operational and "protruding items were removed per the United States Department of Justice." See Dockets 9-14 at 4, 9-3 at 3. Johnson also cannot show that he is likely to succeed on the merits. Most of the claims in his complaint fail to make specific allegations against defendants. Although the claims survived screening so that Johnson may discover the responsible party through discovery, Johnson falls short of demonstrating to the court that he is likely to succeed on the merits. III. Motion for a Court Order to Copy and Preserve Video Footage Johnson also moves for a court order to copy and preserve video footage. Docket 13. The requested video footage from defendants would be more appropriately address to defendants or 11 their counsel during discovery. Because defendants have not yet been served it is unlikely that any such request was ever made. Therefore, Johnson's motion (Docket 13)is denied. Accordingly, it is ORDERED 1. Johnson's motion for a temporary restraining order and a preliminary injunction (Docket 1) is denied. 2. Johnson's motion for a court order to copy and preserve video footage (Docket 13) is denied. 3. Johnson fails to state a claim against Dennis Daugaard and Misty Johnson. They are dismissed as defendants under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). 4. Johnson fails to state a claim against Denny Kaemingk, Robert Dooley, Nancy Christensen, Alejandro Reyes, and Rob Caruaha in their individual capacity. They are dismissed in their individual capacity as defendants under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l). 5. Johnson's Title II and Title V claims against Denny Kaemingk, Robert Dooley, Nancy Christensen, Alejandro Reyes, and Rob Caruaha in their official capacity survive screening. 6. The Clerk shall send blank summons forms to Johnson so he may cause the summons and complaint to be served upon the defendant. 7. The United States Marshal shall serve a copy of the complaint(Docket 9), Summons, and this Order upon defendant as directed by Johnson. All costs of service shall be advanced by the United States. 12 8. Defendants will serve and file an answer or responsive pleading to the remaining claim in the complaint on or before 21 days following the date of service. 9. Johnson will serve upon defendants, or, if appearance has been entered by counsel, upon their counsel, a copy of every fiarther pleading or other document submitted for consideration by the Court. He will include with the original paper to be filed with the clerk of court a certificate stating the date and that a true and correct copy of any document was mailed to defendants or their counsel. 10. Johnson will keep the court informed of his current address at all times. All parties are bound by the Federal Rules of Civil Procedure and by the court's Local Rules while this case is pending. Dated this 22nd day of March, 2018. BY THE COURT: kiwrence L. Piersol United States District Judge ATTEST: MATTHE^y W.THELEN,CLERK BY: EPUTY 13
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
