Opinion
Civil Case No. 2:18-cv-1777-RMG-MGB
02-22-2019
Mark Lott, Plaintiff, v. Timothy Budz, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se and in forma pauperis, filed the instant action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) Plaintiff is a civilly committed individual at the state facility "Correct Care Recovery Solutions" ("CCRS"), located in Columbia, South Carolina. Currently before the Court is Plaintiff's Motion for Temporary Restraining Order ("TRO"). (Dkt. No. 47.) Pursuant to 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial matters are assigned to the United States Magistrate Judge.
BACKGROUND
Plaintiff filed this action on June 28, 2018, pursuant to § 1983. (Dkt. No. 1.) He alleges that on May 23, 2018, a civilly-committed individual, Whitlock, began assaulting another civilly-committed individual, Joey Ginn. (Dkt. No. 11 at 5.) Plaintiff alleges that he jumped into the fray in order to help his friend, Ginn, and Whitlock started "hitting and stabbing" Plaintiff with his pen and fists. (Id. at 5-6.) According to Plaintiff, CCRS staff (STS Brock) then "grabbed Whitlock and put him in restraint until help arrived." (Id. at 6.) Plaintiff alleges that "staff wasn't at [their] posts and didn't have radios that day." (Id.)
According to Plaintiff, Defendant Holly Scaturo, Director of the South Carolina Department of Mental Health, knew of Whitlock's "history of jumping on and assaulting people and his behaviors." (Id. at 4.) Plaintiff alleges that Defendant Timothy Budz, Director of CCRS, "was well aware of . . . Whitlock's violent behaviors . . . since CCRS took over the program." (Id.) Plaintiff seeks punitive and compensatory damages and asks that "all staff be on post and have radios in the future." (Id. at 6.)
Plaintiff filed an Amended Complaint on August 20, 2018. (Dkt. No. 11.) On February 11, 2019, Plaintiff filed a motion to dismiss Defendant Holly Scacturo from this action, which the Court granted. (Dkt. Nos. 51; 52.) On January 31, 2019, Plaintiff filed the instant Motion for TRO ("Motion"). (Dkt. No. 47.) Defendant Timonthy Budz ("Defendant") filed a response in opposition on February 14, 2019. (Dkt. No. 55.) This motion is ripe for disposition.
STANDARD
The undersigned will consider Plaintiff's Motion as seeking a preliminary injunction, instead of a TRO, because Plaintiff failed to adhere to the Federal Rules of Civil Procedure regarding TROs. First, Plaintiff did not comply with Rule 65(b)(1)(A) of the Federal Rules of Civil Procedure, which requires that specific facts be set forth in an affidavit or a verified complaint to clearly show that immediate and irreparable injury will result to him before the Defendant can be heard in opposition. See Fed. R. Civ. P. 65(b)(1)(A). Second, Plaintiff cannot satisfy the "attorney certification" requirement for a TRO because he is not an attorney admitted to practice before the court. See Fed. R. Civ. P. 65(b)(1)(B). Finally, as Defendant has received notice and responded to the Motion, it is appropriate for the court to treat Plaintiff's Motion as seeking a preliminary injunction. See, e.g., Mickell v. Reynolds, 6:15-cv-04656-RBH-KFM, 2016 WL 3049358, at *2, n.3 (D.S.C. May 31, 2016) (citation omitted) ("Because Defendants have received notice and an opportunity to respond, the Court treats Plaintiff's motion as one for a preliminary injunction."). Accordingly, the undersigned will consider Plaintiff's Motion as seeking a preliminary injunction.
A preliminary injunction "protect[s] the status quo . . . to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits." In re Microsoft Corp. Antitrust Litigation, 333 F.3d 517, 525 (4th Cir. 2003) (abrogated on other grounds by eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006)). A preliminary injunction is "an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a TRO or preliminary injunction, a plaintiff must show the following:
(1) That he is likely to succeed on the merits,
(2) that he is likely to suffer irreparable harm in the absence of preliminary relief,
(3) that the balance of equities tips in his favor, and
(4) that an injunction is in the public interest. Winter, 555 U.S. at 20.
DISCUSSION
Plaintiff's one-page Motion asks "for an immediate injunction against resident O'Brien Whitlock"; specifically, that Whitlock cannot be within 100 feet of Plaintiff. (Dkt. No. 47.) Plaintiff explains that Whitlock was sent to lock up after the incident alleged in the Amended Complaint. (Id.) According to Plaintiff, Whitlock has now returned to CCRS and has been "put on another unit." (Id.) Plaintiff claims that he "is scared [Whitlock] will end up being around me at some time or another." (Id.)
The undersigned recommends that Plaintiff's Motion be denied because Plaintiff has not met the Winter factors. His filing does not address the merits of his case or the likelihood of success. Moreover, Plaintiff has not demonstrated that he will suffer irreparable harm if the motion for an injunction is not granted. Plaintiff's Motion is based almost entirely on his speculation that Whitlock may "end up being around [him] at some time or another." (Dkt. No. 47.) This showing is insufficient; "the clear showing of irreparable harm proffered by the movant cannot be either remote or speculative; it must be both actual and immediate." Al-Abood v. El-Shamari, 71 F. Supp. 2d 511, 514 (E.D. Va. 1999). Further, it appears Defendant has taken steps to eliminate the risk of future contact between Plaintiff and Whitlock. Defendant states that he "has taken efforts to reduce of the possibility of contact by placing Mr. Whitlock and Plaintiff on separate housing and ensuring that Plaintiff is moved only after other residents have been moved, including Whitlock." (Dkt. No. 55 at 4.) Next, Plaintiff does not explain how the balance of equities tips in his favor. Lastly, Plaintiff offers no argument that an injunction would be in the public interest.
CONCLUSION
Because Plaintiff has not established the Winter elements, it is RECOMMENDED that his Motion (Dkt. No. 47) be DENIED.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE February 22, 2019 Charleston, South Carolina
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).