Opinion
C. A. 9:22-00087-JD-MHC
02-01-2022
David Brian Westmoreland, Plaintiff, v. Lexington County; Lexington County Detention Center; Lexington County Sheriff's Department; Wellpath; Don L. Smith, Nurse; Nurse Practitioner Beth Rouse; Doctor Darby; Doctor Parryman; W. Todd, Lieutenant; Sgt. Keyes; Sgt. Clawson; Sgt. Steve; Floyd, MCO; Officer Thrasher, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff, a local prisoner who is proceeding pro se, has filed 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 January 11, 2022, Plaintiff filed a motion for a temporary restraining order (TRO) requesting that Defendants Keyes, Steve, Clawson, Floyd, Todd, Parryman, Smith, Darby, and Rouse be prevented from working the A Pod at the Lexington County Detention Center (LCDC), having contact with Plaintiff, and answering Plaintiff's requests. He also asks that these Defendants not be allowed in the booking or medical sections of the LCDC at the same time that Plaintiff is in one of those sections. Plaintiff claims these Defendants have put his life in danger, discriminated against him, and targeted him. See ECF No. 5.
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).
Plaintiff's Motion should be denied because, among other reasons, the Motion contains no sworn affidavit from Plaintiff (nor does the Complaint contain such a sworn affidavit), does not explain why an injunction is being requested without notice, and requests relief exceeding fourteen days (it appears that Plaintiff is requesting permanent separation from these Defendants). See Fed.R.Civ.P. 65(b)(1)-(2); Malik v. Slight, No. 2:11-cv-01064-RBH, 2011 WL 6817750, at *2 n.4 (D.S.C. Dec. 28, 2011) (citing X v. Brierley, 457 F.Supp. 350, 351-52 (E.D. Pa. 1978) (holding that although document bore signature of prisoner and two witnesses, because statements it contained were never sworn to before a public notary or other authorized official, it was not a proper affidavit for summary judgment purposes)).
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 plaintiffs 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 demonstrated that he has met 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. 5) be DENIED.
Plaintiffs 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).