Opinion
9:24-00765-DCC-MHC
04-16-2024
Wesley L. Givens, Plaintiff, v. Joseph Canning, Hingleton, Lt. Cleveland, Lt. Ramp, Lt. Allen, Lt. Campisi, Lt. Burkett, Lt. Swisher, Sgt. Jones Sgt. Beach, Sgt. Miles Perkins, Officer Peterson, Officer Fleshman, Officer Budd, Mr. Oberman, Nurse Shelby Worde, Defendants.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, a state prisoner who is proceeding pro se and in forma pauperis, brings this action against Defendants alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
On March 15, 2024, Plaintiff filed a Motion for a Temporary Restraining Order (TRO). He states that he is:
Seeking Relief for TRO due to violation of 5th Amendment Excessive use of force causing dislocated Elbow and Broken Arm. Plaintiff also suffered from a s[ei]zure due to Blunt Brain trauma. 28 C.F.R. § 552.21, 552.22(b)(H)(3). In was not taken to Medical by officer that applied the use of force. It took 3 hrs later to rec[ei]ve Medical inmate was taken to hospital.ECF No. 8 at 1 (errors in original).
DISCUSSION
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the court may issue a TRO without notice to the adverse party or the party's attorney only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.Fed. R. Civ. P. 65(b)(1). A TRO “expires at the time after entry-not to exceed 14 days-that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.” Fed.R.Civ.P. 65(b)(2). “The stringent restrictions imposed ... by Rule 65 on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 438-39 (1974).
This action has not been served and Defendants have not answered. Plaintiff's request for a TRO should be denied because he has not complied with Fed.R.Civ.P. 65(b)(1) by providing specific facts in an affidavit or a verified complaint to clearly show that immediate and irreparable injury will result to him before the Defendants can be heard in opposition. Plaintiff submitted an affidavit in which he alleges that there was a use of force incident that allegedly involved some of the Defendants named in this action as well as persons not named as Defendants in this action. He appears to allege that this is an ongoing pattern. However, he has not asserted specific facts to clearly show that immediate an irreparable injury, loss, or damage will result to him before the adverse parties can be heard in opposition. Moreover, he appears to be seeking relief from some persons who are not parties to this action.
Plaintiff also appears to be requesting relief exceeding fourteen days. See Fed.R.Civ.P. 65(b)(2). It also does not appear that Plaintiff, who has not asserted that he is an attorney, can satisfy the “attorney certification” requirement for a TRO as required under Rule 65(b)(1)(B). See Demorcy v. Cook, No. CA 8:13-1494-JFA-JDA, 2013 WL 5332146 (D.S.C. Sept. 23, 2013) (noting that the plaintiff could not satisfy the “attorney certification” requirement for a TRO under Rule 65(b)(1)(B) because he was not an attorney admitted to practice before the court).
Additionally, the Motion should be denied because Plaintiff has not made a clear showing for relief. A party seeking a preliminary injunction or TRO must establish all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A plaintiff must make a clear showing that he is likely to succeed on the merits of his claim. Winter, 555 U.S. at 22. Similarly, he must make a clear showing that he is likely to be irreparably harmed absent injunctive relief. Id. at 20-23. Only then may the court consider whether the balance of equities tips in the plaintiff's favor. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. Id. at 24. Here, Plaintiff has not addressed each element and has not demonstrated that he meets these four elements.
The standard for obtaining a TRO is the same as a preliminary injunction. Maages Auditorium v. Prince George's County, Md., 4 F.Supp.3d 752, 760 n.1 (D. Md. 2014).
RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Plaintiff's Motion for a TRO (ECF No. 8) be DENIED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).