Opinion
C/A 9:22-03577-DCC-MHC
02-13-2024
Wesley L. Givens, Plaintiff, v. Dir. Brian P. Stirling, Regional Dir. Willie Davis, Officer Stanley Terry, John Palmer, Barry Coirell, Driver, Nurse Mickens, Cunningham, McCree, Willington, Sgt. Awtry, Sgt. Leary, MHO Phillip, Lindsey Harris, Daniel Harouff, Major Bennett, Warden Earlie, Mr. Charles Williams, Warden Wallace, A/W People, Frank Ocean, Cpt. Spikes, Cuming, Captain Hingleton, Lt. Cleveland, Lt. Ramp, Lt. Allen, Lt. Campisi, Lt. Burkett, Lt. Swisher, Sgt. Jones, Sgt. Beach, Sgt. Miles Perkins, Burdette, Sgt. Commander, Green, Officer Peterson, Officer Fleshman, Officer Budd, Mr. Oberman, Robertson, Heifiner, Cpt. Barnes, Cpt. McCollough, Lisa Adams, Brittany Pressley, Richard Sweetenburg, Andrea McMillian, Davis transport, Ms. Privette, Shelby Worde, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
This a civil action filed by a state prisoner. 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.
In motions filed January 12 and February 5, 2024, Plaintiff appears to be asking for a temporary restraining order (TRO). In his first filing, Plaintiff writes:
My Reason for this Motion is to ask the Status of TRO Request Earlier 2023 which Caused an Extreme use of force 12-05-2023 Causing plaintiff arm to be broken by
same Defendants with seizure and Bruises once found out an active Civil Suit is Pending.ECF No. 33 (errors in original). In the second filing, he states:
This formal Complaint is about being denied time on tablet for Law Library/Legal Access. On 12-05-2023 I (pro-se) plaintiff was being in Restraints beatin Causing left Arm to be broken, knocks on head and seizures Every Person involved in suit including those I Requested a TRO was involved in the Excessive use of force 28 C.F.R. § 552.21-552B.23. I'd like to have this case investigated in a proper manner.ECF No. 37 (errors in original).
Plaintiff has not identified what earlier TRO he filed.
Plaintiff is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections (SCDC). Plaintiff has presented no facts to indicate that these regulations (28 C.F.R. § 552.21-552B.23), which apply to staff and inmates of the Federal Bureau of Prisons (BOP), apply to Plaintiff or to Defendants. Defendants are state employees of the SCDC and are not employees of the BOP. The regulations to which Plaintiff refers, contained in Title 28, Chapter V of the Code of Federal Regulations, apply to the Bureau of Prisons, not SCDC. See, e.g., 28 U.S.C. §§ 552.10 (“In order to further the safe, secure, and orderly running of its institutions, the Bureau of Prisons conducts searches of inmates and of inmate housing and work areas to locate contraband and to deter its introduction and movement.”) (emphasis added); 500.1(b) (“Staff means any employee of the Bureau of Prisons or Federal Prison Industries, Inc.”) (emphasis added); 500.1(c) (“Inmate means all persons in the custody of the Federal Bureau of Prisons or Bureau contract facilities, including persons charged with or convicted of offenses against the United States; D.C. Code felony offenders; and persons held as witnesses, detainees, or otherwise. “) (emphasis added).
Any motion for a TRO should be denied at this time. 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). Every TRO issued without notice “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).
Plaintiff's request for a TRO should be denied because Plaintiff also 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 Defendants can be heard in opposition. Additionally, Plaintiff does not explain why an injunction is being requested without notice, and he appears to be requesting relief exceeding fourteen days. See Fed.R.Civ.P. 65(b)(1)-(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).
To the extent that Plaintiff's motions are instead motions for a preliminary injunction, such motions should also be denied. A preliminary injunction is “an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it.” Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991)) (internal quotation marks omitted); Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013). The decision whether to grant a preliminary injunction is committed to the equitable discretion of the district court. See Salazar v. Buono, 559 U.S. 700, 714 (2010); Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007). Any request for a preliminary injunction be denied because it is premature as this action has not yet been served, and Defendants have not answered or otherwise plead. “The court may issue a preliminary injunction only on notice to the adverse party.” Fed.R.Civ.P. 65(a)(1).
RECOMMENDATION
Based on the foregoing, it is recommended that Plaintiff's motions for a TRO (ECF Nos. 33 and 37) be DENIED.
Plaintiff's attention is directed to the important notice on the following page.
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).