Opinion
C. A. 3:23-6948-CMC-PJG
01-04-2024
Lakenyata Maxwell, individually and on behalf of minor children M.T., B.D., B.R.D, Plaintiffs, v. Housing Authority, also known as Columbia Housing Authority; Candice Tollison; Laquile Bracey, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiff Lakenyata Maxwell, a self-represented litigant, filed this civil action pursuant to 42 U.S.C. § 1983 on behalf of herself and her minor children. Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Plaintiff's motion for a temporary restraining order. (ECF No. 3.) The motion is filed ex parte as the court has not yet authorized service pursuant to the court's initial review procedures for pro se cases and the defendants have not yet appeared. Having reviewed the record presented and the applicable law, the court concludes the motion for a temporary restraining order should be denied.
Plaintiff was warned in a contemporaneous order that she may not represent minors in a civil action without counsel. See generally Myers v. Loudoun Cty. Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005).
BACKGROUND
Plaintiff brings this action claiming that the defendants violated her right to due process when they revoked her federal housing assistance without providing her an informal hearing in front of a neutral factfinder at which she could cross examine witnesses. Plaintiff alleges she was previously the recipient of a federal housing voucher through a housing program administered by Defendant Columbia Housing Authority. Plaintiff alleges that on November 4, 2023, she received notice of the Housing Authority's intent to terminate her voucher due to Plaintiff's alleged fraud. Plaintiff alleges that on December 1, 2023, the Housing Authority held an informal hearing with Plaintiff and Defendants Candice Tollison and Laquile Bracey, employees of the Housing Authority. Plaintiff alleges that the only evidence the defendants used against her at the hearing were documents that included hearsay, and Plaintiff was not afforded the opportunity to cross examine witnesses. Plaintiff further alleges that a second and third hearing were held by the defendants on December 14 and 15, but Plaintiff was not present for either meeting. Plaintiff also alleges that in light of the termination of her housing assistance, she received an eviction notice from the local sheriff on December 18, 2023 and a show cause hearing for the eviction is scheduled for January 4, 2024 in a county magistrate's court.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 claiming the defendants violated her right to due process because the informal hearings conducted in December did not provide Plaintiff with adequate procedural safeguards before revoking her federal housing voucher. Plaintiff seeks damages and injunctive relief in this case, including a temporary restraining order that enjoins the defendants from denying Plaintiff a federal housing voucher and directing the defendants to pay Plaintiff's landlord with the federal housing assistance. Plaintiff further seeks to be moved into a different unit in light of the living conditions in her current housing unit.
DISCUSSION
A. Applicable Standards
A plaintiff seeking a temporary restraining order or a preliminary injunction must establish: (1) that she is likely to succeed on the merits, (2) that she is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in her favor, and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds by 559 U.S. 1089 (2010), reissued in part by 607 F.3d 355 (4th Cir. 2010), overruling Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). A plaintiff must make a clear showing that she is likely to succeed on the merits of her claim. Winter, 555 U.S. at 22; Real Truth, 575 F.3d at 345-46. Similarly, she must make a clear showing that she is likely to be irreparably harmed absent injunctive relief. Winter, 555 U.S. at 20-23; Real Truth, 575 F.3d at 347. Only then may the court consider whether the balance of equities tips in the plaintiff's favor. See Real Truth, 575 F.3d at 346-47. Further,
The portions of Real Truth that were reissued by the Fourth Circuit are Parts I and II found at 575 F.3d at 345-47, which are the sections addressing injunctions that are relied upon in the court's Report and Recommendation.
Based on Winter, the Real Truth Court expressly rejected and overruled Blackwelder's sliding scale approach, which allowed a plaintiff to obtain an injunction with a strong showing of a probability of success even if he demonstrated only a possibility of irreparable harm. Real Truth, 575 F.3d at 347; Winter, 555 U.S. at 21-23.
[a] preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.Winter, 555 U.S. at 24 (internal quotation marks and citations omitted).
Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson, 551 U.S. 89, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Plaintiff's Motion
The court concludes that Plaintiff's motion should be denied because she has failed to comply with the procedural requirements of Federal Rule of Civil Procedure 65(b). A temporary restraining order should be restricted to serving the underlying purpose of preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer. Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). Federal Rule of Civil Procedure 65 provides that a court may issue a temporary restraining order without notice to the adverse party 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). “The order is designed to preserve the status quo until there is an opportunity to hold a hearing on the application for a preliminary injunction and may be issued with or without notice to the adverse party. Any temporary restraining order granted without notice must comply with the provisions of Rule 65(b) in order to assure the restrained party some measure of protection in lieu of receiving formal notice and the opportunity to participate in a hearing.” 11A Charles Allen Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure § 2951 (3d ed. Apr. 2023).
Here, Plaintiff's Complaint is not verified, nor did Plaintiff provide an affidavit as Rule 65 requires. Furthermore, the substance of Plaintiff's Complaint and motion fail to address why the court should issue a temporary restraining order before the defendants can be notified of the motion and heard in opposition. Thus, even assuming Plaintiff can meet the Winter factors described above, Plaintiff does not provide the court with a sufficient reason to enjoin the defendants before they can be served with notice of the motion and heard in opposition to the motion.
RECOMMENDATION
Based on the foregoing, the court recommends the motion for a temporary restraining order 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
901 Richland Street
Columbia, South Carolina 29201
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).