Opinion
Civil Action No. 5:03cv259-DMR-JCS.
June 5, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This cause comes on this date on the sua sponte motion of the Court to dismiss this cause of action pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and on the Plaintiff's Motion for Temporary Restraining Order (docket entry number 44).
Plaintiff has failed to serve the defendants within the time allowed by Rule 4(m). Plaintiff is incarcerated and proceeding pro se, but he is not proceeding in forma pauperis. According to the Court's records, on December 8, 2006, the Court in an Order advised the Plaintiff of his responsibility to serve process and gave the plaintiff an additional 45 days to effect service of process, but he failed to do so. See docket entry number 29. In an Order entered March 17, 2006 (docket entry number 41), the Court directed the Plaintiff to show cause why this matter should not be dismissed for failure to accomplish service on the defendants. Although the Plaintiff has written a letter to the Clerk inquiring about summons, the Plaintiff has failed to respond to the Order, and he has failed to achieve service of process upon the defendants. Accordingly, the undersigned recommends that this action be dismissed without prejudice for his failure to serve the defendants within the time allowed by Rule 4(m).
Furthermore, the undersigned recommends denial of the Motion for Temporary Restraining Order filed with the court on June 1, 2006 (docket entry number 44). In order to succeed on a motion for TRO or preliminary injunction, Plaintiff must demonstrate by a clear showing (1) a substantial likelihood of prevailing on the merits; (2) a substantial threat of irreparable harm if the injunction is not granted; (3) that the threatened injury outweighs any harm that may result from the injunction to the nonmovant; and (4) that the injunction will not undermine public interests. Roho, Inc. v. Marquis, 902 F.2d 356, 358 (5th Cir. 1990). With regard to the portion of his Motion for Temporary Restraining Order which objects to the cutting of his hair, Plaintiff cannot demonstrate a substantial likelihood of success on the merits. The Fifth Circuit already has ruled on this issue. See Scott v. Mississippi Dep't of Corrections, 961 F.2d 77 (5th Cir. 1992). The Fifth Circuit upheld MDOC's hair-grooming policy as it relates to members of the Rastifari religion and held that the policy was reasonably related to a legitimate penological concern. This Court has previously addressed a Motion for Temporary Restraining Order filed by the Plaintiff in this case regarding his hair length.See Report and Recommendations entered December 13, 2005 (docket entry number 30); Order adopting Report and Recommendations entered February 2, 2006 (docket entry number 39). Moreover, his complaints regarding confiscation of property within the Motion for Temporary Restraining Order are without merit, are unrelated to the facts forming the basis of this present action, and have not been exhausted in the state remedy process. See also Nickens v. Melton, 38 F.3d. 183 (5th Cir. 1994) ( 28 U.S.C. § 1915 dismissal of Mississippi state inmate's § 1983 claim against prison guard for taking of property did not rise to the level of a constitutional violation because he had adequate post-deprivation state remedy). Thus, the Motion for Temporary Restraining Order should also be rejected on that basis.
The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendation contained within this report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. 28 U.S.C. § 636,Douglass v. United Services Automobile Association, 79 F.3d 1415, 1428-29 (5th Cir. 1996).