David Timothy Moore v. Dooly SP Warden

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10453
Non-Argument Calendar
____________________
DAVID TIMOTHY MOORE,
Plaintiff-Appellant,
versus
DOOLY SP WARDEN,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:21-cv-00032-TES-CHW
____________________
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2 Opinion of the Court 22-10453
Before WILSON, ANDERSON, and J ULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff, a Georgia state prisoner proceeding pro se, appeals
the district court’s orders denying his motion for a temporary re-
straining order and dismissing his 42 U.S.C. § 1983 claim for failure
to exhaust administrative remedies. After careful review, we af-
firm the district court’s ruling denying Plaintiff’s motion for a tem-
porary restraining order, but vacate the district court’s order dis-
missing Plaintiff’s § 1983 claim and remand for the district court to
conduct a hearing as to the disputed factual issue underlying the
question whether Plaintiff failed to exhaust his administrative rem-
edies.
BACKGROUND
This case arises from Plaintiff David Moore’s confinement at
Dooley State Prison (“DSP”), where Defendant Warden Aimee
Smith (“the Warden”) has been the warden since Plaintiff’s arrival.
Plaintiff brought this claim under 42 U.S.C. § 1983 against the War-
den in her official and individual capacities, claiming a violation of
the Eighth Amendment’s prohibition of cruel and unusual punish-
ment based on the Warden’s failure to move Plaintiff from a unit
that the Warden knew to contain black mold. Plaintiff claims that
this exposure to black mold weakened his immune system and
caused him to develop a urinary tract infection, as well as other
ailments. The facts we set out below reflect the specific factual al-
legations made by Plaintiff in his complaint.
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22-10453 Opinion of the Court 3
Almost a year after arrival, Plaintiff was moved to an open
dorm building that Plaintiff says contained black mold on the ceil-
ings, walls, water fountains, and showers. About two days after
moving into the open dorm building, Plaintiff alleges that he began
experiencing coughing spells, sinus inflammation, chest pains,
itchy skin, and headaches of a greater intensity and frequency than
usual. Because his symptoms began so soon after the move and
because black mold was visible to the naked eye, Plaintiff attributed
his ailments to the mold. Plaintiff wrote a letter to the Warden
detailing the effects of the black mold on his health and requesting
to be moved back into an individual cell. He received no response.
Plaintiff also complained about the mold and his illnesses to some
of the Warden’s subordinates, but no action was taken.
About a month later, Plaintiff fell extremely ill, experiencing
a loss of “all strength in his body,” loss of appetite, nausea, chills,
painful urination, inability to control his urination, and rapid
weight loss. DSP medical personnel diagnosed Plaintiff with a uri-
nary tract infection, which Plaintiff attributes to a weakening of his
immune system that was caused by his residency in a mold-infested
dorm. According to his complaint, Plaintiff filed a formal “emer-
gency grievance” addressing the mold issue and explaining that his
preexisting health conditions necessitated an immediate housing
transfer.
Sixteen days after filing the grievance, and before he had re-
ceived any response, Plaintiff commenced the present action. In
his Complaint, Plaintiff alleges that, in violation of the Eighth
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4 Opinion of the Court 22-10453
Amendment, the Warden had been deliberately indifferent to his
medical needs when she failed to move Plaintiff after he alerted
prison personnel to the health issues he was suffering as a result of
the mold. Plaintiff moved to proceed in forma pauperis (“IFP”). Sep-
arately, he also moved for a temporary restraining order (“TRO”)
or preliminary injunction (“injunctive-relief motion”) enjoining the
Warden from housing Plaintiff in the contaminated building and
requested an emergency hearing on the motion.
The magistrate judge granted Plaintiff’s motion for leave to
proceed IFP,1 but issued a Report and Recommendation (“R&R”)
recommending that his injunctive-relief motion be denied. Plain-
tiff objected to the magistrate judge’s recommendation against
granting injunctive relief, arguing, among other things, that an al-
legation that there was black mold in his dorm was sufficient to
warrant an emergency hearing on the motion. Reviewing
1 The document submitted by the Warden indicates that as of January 5, 2021,
Plaintiff had filed 78 prior grievances during his preceding 12+ years in state
custody. Moreover, the magistrate judge noted that Plaintiff had previously
been barred from proceeding in forma pauperis in earlier litigation because
while a prisoner he had, on at least three occasions, brought civil actions that
were either frivolous, malicious, or failed to state a claim. Such conduct typi-
cally means that the prisoner is barred from proceeding IFP in future litigation.
But there is an exception to this bar when the prisoner alleges specific facts
suggesting that he is in imminent danger of physical injury as a result of the
conduct underlying his claim. The magistrate judge concluded that Plaintiff’s
allegations here met the standard for applying the exception to the “three-
strikes” bar.
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22-10453 Opinion of the Court 5
Plaintiff’s objections de novo, the district court adopted the Magis-
trate Judge’s R&R and denied Plaintiff’s injunctive-relief motion.
As to Plaintiff’s § 1983 claim, the Warden moved to dismiss
the Complaint, arguing that Plaintiff had failed to exhaust adminis-
trative remedies. In support of her motion, she argued that when
a state provides a grievance procedure, the Prison Litigation Re-
form Act of 1995 (“PLRA”) requires the exhaustion of administra-
tive remedies before filing a § 1983 claim.2 The Warden provided
declaration testimony from DSP Grievance Coordinator Tracy
Jackson outlining the Georgia Department of Corrections
Statewide Grievance Procedure3 and stating that Plaintiff had not
completed the specified administrative grievance procedures prior
to bringing this action.
As Jackson explained in her written declaration, the admin-
istrative grievance process is divided into two steps: the filing of
the grievance and the appeal by the prisoner of an adverse decision
from the Warden.4 Once the grievance has been received by prison
2 See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison
conditions under [§] 1983 . . . or any other Federal law, by a prisoner . . . until
such administrative remedies as are available are exhausted.”).
3 We use interchangeably the term “Statewide Grievance Procedure” and its
acronym “SGP.”
4 Step one is denominated “Original Grievance,” and it contains a very de-
tailed set of procedures governing the filing and processing of a grievance.
Step two is denominated “Central Office Appeal,” and this section sets out the
manner in which a prisoner should file an appeal, along with the relevant dead-
lines for doing so. See generally SGP IV.B. and C.
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6 Opinion of the Court 22-10453
staff, the Warden is required to deliver his or her decision within
40 days, with the possibility of a 10-day extension. The second step
of the procedure permits the prisoner to appeal an adverse decision
by the Warden to the Central Office.5 Such an appeal may be filed
only after the prisoner has either received the adverse decision or
the time allowed for the Warden’s decision has expired. As noted
by Jackson, Plaintiff initiated his litigation prior to receiving a deci-
sion from the Warden, and he never appealed to the Central Office.
Accordingly, Jackson concluded, Plaintiff filed suit prior to the
grievance procedure being completed.
As to Plaintiff’s allegation in his Complaint that the griev-
ance he had filed was denominated as an “emergency grievance,”
Jackson declared that the grievance in question was not categorized
as an emergency grievance by Plaintiff, nor in screening the griev-
ance did the duty officer determine that the facts alleged therein
gave rise to an emergency.
In response, Plaintiff insisted that he had filed an emergency
grievance, and he attached as an exhibit what he stated was a copy
of the grievance he had filed. Handwritten at the top of that form
were the words, “Emergency Grievance Pursuant to SOP 227.02
III.F. and IV.D(1 & 2).” As to Jackson’s declaration testimony that
Plaintiff had not submitted an emergency grievance, Plaintiff ques-
tioned why she had not attached to her own declaration a copy of
5 Although the term “Central Office” does not appear to be defined in the
Statewide Grievance Procedure, we understand it to mean the Commissioner
of the Georgia Department of Corrections.
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22-10453 Opinion of the Court 7
the grievance he had filed. Plaintiff averred that Jackson’s declara-
tion represented perjured testimony and, given the “blatant un-
truths” in the Jackson declaration, he asked the court “at the very
least. . .[to] hold a hearing on this perjury issue.” As to the import
of the characterization of a grievance as an emergency grievance,
Plaintiff argued that the procedure relevant to the processing of an
emergency grievance calls for a response by a duty officer within
five days and, because Plaintiff did not hear from a duty officer
within that period of time, Plaintiff argues he had exhausted his
remedies and was free to go ahead and file a lawsuit.
The magistrate judge then issued a second R&R, recom-
mending that the Warden’s motion to dismiss be granted and that
Plaintiff’s claim be dismissed without prejudice. In the R&R, the
magistrate judge made specific factual findings and determined,
based on these findings, that Plaintiff’s grievance was an “origi-
nal”—that is, non-emergency—rather than an emergency griev-
ance. Specifically, the magistrate judge found that the spacing
along the top of the grievance form suggested that Plaintiff wrote
in the phrase “Emergency Grievance” after the fact for purposes of
the present litigation, not prior to submitting it to prison officials.
Also relevant here, the R&R stated that Jackson’s declaration testi-
mony was credible and further supported an inference that Plaintiff
had not filed an emergency grievance. Thus, the magistrate judge
concluded that Plaintiff commenced this action prior to exhausting
the applicable two-step grievance procedure.
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8 Opinion of the Court 22-10453
In his objections to the second R&R, Plaintiff argued that the
determinations made by the magistrate judge were not based on
the evidence presented, but on conjecture. He referenced his ear-
lier response to the motion to dismiss, in which he had accused
Jackson of perjury and had requested a hearing on the factual ques-
tion whether he had filed an emergency grievance, as opposed to a
non-emergency grievance. He noted that he was the only party
who had presented a document that purported to be a copy of the
grievance he had actually filed. Defendant, he argued, had merely
submitted a typed form created by prison officials that summarized
the grievance filed by Plaintiff. In addition, he noted that Defend-
ant had never disputed that Plaintiff’s Exhibit P-2 was a copy of the
emergency grievance he had filed, as Defendant had filed no reply
to Plaintiff’s response to the motion to dismiss. He argued that by
failing to produce a copy of the actual handwritten grievance that
Plaintiff had filed, Defendant had failed to corroborate Jackson’s
testimony that Plaintiff had not filed an emergency grievance.
This, Plaintiff argued, should prompt either a denial of Defendant’s
motion to dismiss or a hearing at which Defendant would be re-
quired to produce the actual form filed by Plaintiff.
Characterizing Jackson’s declaration testimony as “[p]artic-
ularly telling,” the district judge adopted the Magistrate Judge’s
R&R finding that Plaintiff’s grievance was not filed as an emer-
gency grievance, granted the Warden’s motion to dismiss, and dis-
missed without prejudice Plaintiff’s complaint for failure to exhaust
administrative remedies.
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22-10453 Opinion of the Court 9
Plaintiff appeals the district court’s denial of his injunctive-
relief motion and its dismissal of his complaint.
DISCUSSION
I. Standard of Review
We review the district court’s decision to deny Plaintiff’s in-
junctive-relief motion for an abuse of discretion, reviewing de novo
any underlying legal conclusions and for clear error any findings of
fact. Friedenberg v. Sch. Bd. of Palm Beach Cnty., 911 F.3d 1084, 1090
(11th Cir. 2018) (providing standard of review for denial of a pre-
liminary injunction); Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779
F.3d 1275, 1280 (11th Cir. 2015) (providing standard of review for
denial of a TRO). We review de novo the district court’s interpre-
tation and application of the PLRA’s exhaustion requirement. Var-
ner v. Shepard, 11 F.4th 1252, 1257 (11th Cir. 2021). The district
court’s factual findings related to the exhaustion requirement are
reviewed for clear error. Id. Otherwise, “we accept as true the
facts as set forth in the complaint and draw all reasonable infer-
ences in [the plaintiff’s] favor.” Id. (alteration in original) (quoting
Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010)).
II. Dismissal of Plaintiff’s Claim
Section 1997e(a) of the PLRA provides that “[n]o action shall
be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Congress imposed an exhaustion requirement in order “to afford
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10 Opinion of the Court 22-10453
prison officials time to address grievances internally before allow-
ing a prisoner to initiate a federal lawsuit.” Johnson v. Meadows, 418
F.3d 1152, 1155 (11th Cir. 2005). “[W]hen a state provides a griev-
ance procedure for its prisoners, as Georgia does here, an inmate
alleging harm suffered from prison conditions must file a grievance
and exhaust the remedies available under that procedure before
pursuing a § 1983 lawsuit.” Varner, 11 F.4th at 1257 (citation omit-
ted).
In her motion to dismiss, the Warden contends that Plaintiff
failed to exhaust his remedies before filing suit. Specifically, the
Georgia Department of Corrections has promulgated the
Statewide Grievance Procedure, which prisoners are required to
follow when asserting a grievance. According to the protocol set
out in Policy Number 227.02, a prisoner may file a grievance as to
any grievable issue. Once a grievance has been filed, prison staff
then investigate and submit a report and recommendation to the
warden of the prison. The warden or her designee has 40 days from
the date the prisoner submitted his grievance form to deliver the
warden’s decision to the prisoner, with the possibility of a “one-
time, ten (10) Calendar Days-extension” if the extension is commu-
nicated to the prisoner prior to expiration of the initial 40-day dead-
line. The prisoner may file an appeal to the Central Office only
after he has either received the warden’s decision or the time pe-
riod has expired for the warden to give the prisoner the warden’s
decision. As to his deadline for filing an appeal, the prisoner must
do so within 7 days of receiving the Warden’s decision, although
an appropriate official can waive this time limit for good cause.
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22-10453 Opinion of the Court 11
In short, according to the provision of the protocol identified
by the Warden, the latter had 40 days to render a decision on Plain-
tiff’s grievance complaining about the conditions of his confine-
ment: that is, Plaintiff’s complaint that he was being housed in an
area that had black mold and that this mold was seriously damag-
ing his health. Plaintiff, however, did not give the Warden this 40-
day period to render a decision, but instead—only 16 days after sub-
mitting his grievance—he filed a complaint in federal district court
and asserted a § 1983 claim based on the subject matter of that
grievance. Accordingly, Defendant argues that Plaintiff failed to
exhaust his administrative remedies prior to filing suit.
Indeed, Plaintiff does not disagree that if the Warden had in
fact been allowed 40 days to decide the grievance, then Plaintiff
would have jumped the gun by filing his lawsuit prior to the expi-
ration of that period. Plaintiff argues, however, that because he
had filed an “emergency” grievance, as opposed to a grievance not
labeled an emergency, a prison official (the duty officer) had at
most five days to determine whether the situation required imme-
diate remediation. According to Plaintiff, when the duty officer
failed within five days to inform Plaintiff that the officer disagreed
that the grievance constituted an emergency, this liberated Plaintiff
from the responsibility of complying with those provisions of the
grievance procedure that give the Warden 40 days to render a final
decision on the grievance’s merits and that call for an appeal from
an adverse decision to the Central Office.
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12 Opinion of the Court 22-10453
In support of his position, Plaintiff points to a provision in
the grievance procedure protocol that describes an “emergency
grievance,” which is defined as “[a]n unforeseen combination of
circumstances, urgent need, or the resulting state that calls for im-
mediate action or relief through the grievance process.” When an
emergency grievance is filed, the duty officer must be notified im-
mediately and must determine if the grievance fits the definition of
an emergency grievance. If he decides that it does, the officer must
take immediate action and provide an initial response within 48
hours. If the duty officer determines that the grievance does not
constitute an emergency grievance, he must document the reason
why and notify the prisoner within five calendar days following the
submission of the grievance. Once the emergency grievance has
been deemed not to relate to an emergency, the prisoner can then
file a new grievance within 10 days of that notification, which pre-
sumably will then be processed as would any other grievance.
In short, Plaintiff contends that once the duty officer failed
to inform Plaintiff within five days that the officer disagreed that
the matter needed to be handled as an emergency, Plaintiff was free
to file suit immediately without first awaiting a decision on the ac-
tual merits of his grievance from the Warden and then appealing
an adverse decision by the latter. Whether or not Plaintiff’s posi-
tion reflects a correct legal interpretation of the Department of
Correction’s protocol is not a question the district court or the par-
ties addressed. Therefore, even assuming as a factual matter that
Plaintiff filed an emergency grievance, the present appeal does not
permit us to decide whether Plaintiff is correct in his legal premise
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22-10453 Opinion of the Court 13
that a prisoner can be deemed to have no further administrative
remedies to exhaust whenever a prison duty officer has deter-
mined—through his silence or through direct communication with
the prisoner—that the grievance does not need to be handled as an
emergency.
Instead, in dismissing the case, the district court relied on its
factual determination that although Plaintiff had filed a grievance,
he had not designated that grievance as an emergency grievance.
That being so, the Warden clearly had at least 40 days to respond,
and Plaintiff’s filing of a federal lawsuit prior to the expiration of
that 40-day period meant that Plaintiff had failed to exhaust his ad-
ministrative remedies. The district court therefore dismissed the
case, and did so without prejudice.
Thus, the only question for us to decide in the present appeal
is whether to uphold the district court’s factual determination that
Plaintiff had filed only an ordinary grievance, not an emergency
grievance. At the outset, we note that when a defendant has as-
serted, as an affirmative defense to a federal lawsuit, a prisoner’s
failure to exhaust administrative remedies, it is the district court,
not a jury, that resolves any factual disputes between the parties.
This is so because although a failure-to-exhaust defense is not
strictly speaking a jurisdictional defense, it is akin to the latter as it
does not deal with the merits of the action. That being so, it is
treated as a “matter in abatement.” Bryant v. Rich, 530 F.3d 1368,
1374 (11th Cir. 2008). Stated another way, exhaustion under the
PLRA is a precondition to a plaintiff’s ability to receive adjudication
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14 Opinion of the Court 22-10453
of the merits of his complaint, and a motion to dismiss based on a
failure to exhaust remedies should be decided by the court. Id. at
1374–75.
In carrying out its duty to determine whether a prisoner-
plaintiff has exhausted his administrative remedies, the district
court followed the two-step analysis set out in Turner v. Burnside,
541 F.3d 1077 (11th Cir. 2008). A complaint is subject to dismissal
under step one of Turner’s review sequence if the plaintiff’s factual
allegations, taken as true, demonstrate a failure to properly exhaust
administrative remedies. Id. at 1082. If dismissal is not warranted
under step one, the court then makes specific findings to resolve
factual disputes and determine, based on these findings, whether
the prisoner exhausted administrative remedies. Id. See also Bryant,
530 F.3d at 1374, quoting Wyatt v. Terhune, 315 F.3d 1108, 1119–20
(9th Cir. 2003) (“[i]n deciding a motion to dismiss for a failure to
exhaust nonjudicial remedies, the court may look beyond the
pleadings and decide disputed issues of fact”). And because the fail-
ure to exhaust administrative remedies is an affirmative defense,
the burden is on the defendant to show that the plaintiff has not
exhausted those remedies. Whatley v. Smith, 898 F.3d 1072, 1082
(11th Cir. 2018).
Accepting as true Plaintiff’s allegation in his Complaint that
he had filed an emergency grievance, the district court6 concluded
6 After conducting a de novo review of the record, the district court adopted
the magistrate judge’s R&R, which unless otherwise indicated provided the
findings that are recounted in text.
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22-10453 Opinion of the Court 15
that Plaintiff survived Turner’s first step: that is, his allegations on
their face did not demonstrate a failure to exhaust remedies.7 How-
ever, the district court determined that Plaintiff’s Complaint failed
at the second step, which requires the court to make factual find-
ings on disputed matters. Primarily relying on Jackson’s declara-
tion testimony, the court concluded that Plaintiff’s grievance was
not filed as an emergency grievance and that Plaintiff thus failed to
exhaust the two-step original grievance procedure before com-
mencing this action.
We review the district court’s factual findings on exhaustion
for clear error. Dimanche v. Brown, 783 F.3d 1204, 1210 (11th Cir.
2015). Here, Plaintiff alleged in his Complaint that he had filed an
emergency grievance. The Warden moved to dismiss the com-
plaint and supported that motion with a sworn declaration from a
prison official—Tracy Jackson—who stated she had reviewed
Plaintiff’s file and had determined that he had not categorized the
grievance he filed on January 5, 2021 as an emergency grievance.
Attached as an exhibit to that declaration was a typed document in
which a prison official had set out various events that had occurred
7 We again note that although Defendant has not conceded the point, the
magistrate judge and district court assumed without deciding that if Plaintiff
had filed an emergency grievance and if the duty officer screening the emer-
gency grievance failed to inform him within 5 days why the officer did not
consider the subject matter of the grievance to qualify as an emergency, Plain-
tiff was free to file suit without further exhausting other procedures that re-
quire the Warden to make the final decision concerning the merits of a griev-
ance. We emphasize that we neither endorse nor reject that legal construction
of the Georgia grievance procedures.
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16 Opinion of the Court 22-10453
in connection with the prison’s processing of Plaintiff’s grievance.
Included in that document was the prison official’s typed recitation
of Plaintiff’s grievance, inserted into a block titled “Complaint/Res-
olution.” Nothing in that recitation indicated that Plaintiff’s griev-
ance had been filed as an emergency grievance.
In his response opposing dismissal, Plaintiff attached as an
exhibit what he said was a handwritten copy of the grievance that
he had filed; at the top of that grievance were written the words
“Emergency Grievance.” As the only party who had submitted
what was alleged to be a copy of the grievance that was actually
filed, Plaintiff called on the Warden to present the copy of the
grievance on which she based her assertion that Plaintiff had not
characterized his grievance as an emergency grievance. The War-
den filed no reply disputing Plaintiff’s allegation that the exhibit he
provided was a copy of the grievance he had actually filed. Nor has
Jackson ever explained the basis for her assertion that Plaintiff’s
grievance lacked a designation as an emergency filing. As noted,
the document that she filed and referred to as a grievance was a
typed document prepared by prison officials.
Nevertheless, the magistrate judge and district court con-
cluded that Jackson’s position on the matter was more credible
than Plaintiff’s. Yet, as Jackson never provided any foundation for
her statement that Plaintiff had not filed an emergency grievance,
her testimony failed to engage the factual matter on which her
credibility was being gauged by the court. The magistrate judge
opined that, given the spacing and slant of the handwritten words
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22-10453 Opinion of the Court 17
on the copy of the grievance submitted by Plaintiff, those words
appear to have been written in after the fact, for the purpose of this
litigation. The magistrate judge’s observation and accompanying
inference may well turn out to be true, but given the absence of
any explanation by Jackson of her basis for asserting that the filed
grievance did not contain the emergency designation, a conclusion
by the court affirming that assertion is premature on the current
record. Cf. Maldonado v. Baker Cnty. Sheriff’s Off., 23 F.4th 1299,
1308 (2022) (reversing the district court’s dismissal of the prisoner’s
complaint and remanding because the district court was required
to make specific findings to resolve disputed factual issues related
to exhaustion of remedies, but instead failed to provide findings
specific enough for the appellate court to meaningfully review how
the district court resolved the disputed facts).
Accordingly, we remand for the district court to conduct a
hearing8 to decide the factual question whether Plaintiff denomi-
nated the grievance in question as an emergency grievance, as well
as any other relevant factual or legal questions necessary for a
8 The Warden argues that because Plaintiff did not request a hearing, he
waived the right to such a proceeding. We disagree with the factual premise
of that contention. In opposing dismissal of his complaint in both his response
to the motion to dismiss and in his objections to the magistrate judge’s R&R,
Plaintiff requested a hearing to resolve the question whether Jackson commit-
ted perjury in her declaration that Plaintiff had not categorized his grievance
as an emergency grievance. That request seems to us to have been sufficient
to inform the district court that Plaintiff sought a hearing to resolve the factual
dispute concerning the type of grievance he had filed.
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18 Opinion of the Court 22-10453
determination of the question whether Plaintiff properly exhausted
all administrative remedies.
III. Denial of Plaintiff’s Injunctive-Relief Motion
Plaintiff also appeals the district court’s denial of his motion
for a TRO or preliminary injunction to require prison authorities
to move him from the prison area allegedly containing black mold.
A preliminary injunction is only appropriate if a movant clearly es-
tablishes (1) a substantial likelihood of success on the merits, (2)
that injunctive relief is necessary to prevent irreparable injury, (3)
that the threatened injury outweighs the harm the order would in-
flict on the non-movant, and (4) that the order would not adversely
affect the public interest. Horton v. City of St. Augustine, 272 F.3d
1318, 1326 (11th Cir. 2001). Preliminary injunctive relief is “an ex-
traordinary and drastic remedy not to be granted unless the mo-
vant clearly establishe[s] the burden of persuasion as to all four el-
ements.” Id. (quotation marks and citation omitted). This Court
reviews the denial of a motion for a preliminary injunction for
abuse of discretion. Swain v. Junior, 961 F.3d 1276, 1285 n.3 (11th
Cir. 2020). The same standard applies to the denial of a motion for
a TRO. Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d at 1280
(11th Cir. 2015).
On the same date he filed his Complaint accusing the War-
den of deliberate indifference to his medical needs—January 21,
2021—Plaintiff asked for a TRO/preliminary injunction to require
that the Warden move him to a different dorm. As to his claimed
injury resulting from the alleged existence of mold in the unit,
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22-10453 Opinion of the Court 19
Plaintiff primarily complained about a severe urinary tract infec-
tion that he alleged he contracted because the mold had weakened
his immune system. In reviewing Plaintiff’s motion for prelimi-
nary injunctive relief, the magistrate judge characterized Plaintiff’s
allegations as “somewhat speculative” and “minimal.” In denying
the motion, both the magistrate judge and the district court con-
cluded that, among other things, Plaintiff had failed to show a sub-
stantial likelihood of success on his claim.
Based on our review of the record, we find no abuse of dis-
cretion in this determination. But there is an equally strong practi-
cal reason why it would be futile for us to require the district court
on remand to conduct a hearing on Plaintiff’s request that he be
moved to a different prison unit pending litigation of his claim.
Specifically, Plaintiff is no longer housed in the prison building that
he alleges contained black mold. The record does not indicate the
date on which Plaintiff was moved, but Plaintiff acknowledged in
his March 19, 2021 motion for an extension of time to file written
objections to the magistrate judge’s R&R that he had been moved
to a different building. He confirmed that fact again on April 13,
when he filed those objections.
The purpose behind Plaintiff’s motion for preliminary in-
junctive relief was to ensure that he was not housed in a place he
considered dangerous to his health while his litigation proceeded.
That goal has now been accomplished. As the present litigation
proceeds on remand, Plaintiff is free to request injunctive relief
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20 Opinion of the Court 22-10453
should the situation change.9 In short, we affirm the district court’s
denial of Plaintiff’s motion for preliminary injunctive relief.
CONCLUSION
For the above reasons, we AFFIRM the district court’s order
denying Plaintiff’s injunctive-relief motion, but VACATE the dis-
trict court’s order dismissing Plaintiff’s § 1983 claim and REMAND
to the district court for proceedings consistent with this Opinion.
9 We often find a conditions-of-confinement claim to be moot when a prisoner
has been moved to a different institution. See, e.g., Spears v. Thigpen, 846 F.2d
1327, 1328 (11th Cir. 1988). We recognize that Plaintiff has not been moved
to a different institution and accordingly are not holding that his claim is moot.
Indeed, we have remanded that claim for the district court to conduct further
proceedings. Instead, we simply conclude that no danger presently exists that
a preliminary injunction could remedy.
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