Opinion
Civil Action 3:23-CV-110 (GROH)
04-10-2024
DENNIS JAMES JOHNSON, Plaintiff, v. OFFICER ICE, CHAPLAIN HONG, and LT. BONNELL, Defendants.
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR PRELIMINARY OR PERMANENT INJUNCTION OR RESTRAINING ORDER
ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On March 4, 2024, the pro se Plaintiff, a federal inmate who is incarcerated at Gilmer FCI in Glenville, West Virginia, filed a motion for injunctive relief and/or a restraining order. ECF No. 37. Therein, Plaintiff claims he has filed numerous motions which document acts of retaliation taken against him by the Defendants and their coworkers. Id. at 1. The Plaintiff specifically claims that he is now being retaliated against by the administration which has assigned Officer Ice-the same officer whom he alleges in the complaint sexually assaulted him-to supervise the Plaintiff. Id. The Plaintiff contends that his supervision by Officer Ice violates his Eighth Amendment rights and violates BOP program statement pursuant to 28 C.F.R. § 115.67 (a)-(e). Id. The Plaintiff seeks injunctive relief or a permanent restraining order which would prohibit Officer Ice from directly supervising him, and prohibit Officer Ice and the other Defendants from harassment of or retaliation against him.
II. LEGAL STANDARD
A. Pro Se Litigants.
Courts must read pro se allegations in a liberal fashion and hold those pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
B. Requests for Temporary Injunctive Relief
The Fourth Circuit reviews “a district court's decision to grant a preliminary injunction under an abuse-of-discretion standard.” International Refugee Assistance Project v. Trump, 883 F.3d 233, 255 - 56 (4th Cir. 2018), as amended (Feb. 28, 2018). The standard for granting injunctive relief was articulated by the United States Supreme Court which held in Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) that:
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.
As restated by the Fourth Circuit, when a plaintiff seeks the extraordinary remedy of a preliminary injunction:
The plaintiff “need not establish a certainty of success, but must make a clear showing that he is likely to succeed at trial.” A plaintiff seeking a preliminary injunction must establish that (1) she is likely to succeed on the merits, (2) she is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in her favor, and (4) an injunction is in the public interest.Int'l Refugee, 883 F.3d at 256 (citing WV Ass'n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009) (citing Winter, 555 U.S. at 7)). This standard becomes even more exacting when a plaintiff seeks a preliminary injunction that mandates action, as contrasted with the typical form of a preliminary injunction that merely preserves the status quo. See East Tennessee Natural Gas Co. v. Sage, 361 Fed 3d 808, 828 (4th Cir. 2004) (quoting Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980)) (noting that “mandatory preliminary injunctions do not preserve the status quo and normally should be granted only in those circumstances when the exigencies of the situation demands such relief”).
C. Requests for Permanent Injunctive Relief
The United States Supreme Court has “repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.” Weinberger v. Romero-Barcelo, 456 U.S.C 305, 312 (1982). “In brief, the bases for injunctive relief are irreparable injury and inadequacy of legal remedies.” Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531, 542 (1987) (citing Weinberger, 456 U.S. at 311-313). The Supreme Court later established a four-part standard which a plaintiff must meet to merit injunctive relief:
A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). See Peters v. Aetna Inc., 2 F.4th 199, 238 (2021). Further, “[t]he decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion.” Id. See Weinberger, 456 U.S. at 320.
III. ANALYSIS
Plaintiff claims that Defendant Ice (“Ice”) and BOP officials have harassed him and retaliated against him because he filed this Bivens action. He asserts that Ice and others retaliated against him for filing an action which asserts that Ice sexually harassed and attempted to sexually assault him. ECF No. 37 at 1. Although the Plaintiff alleges that his civil rights have been violated, he does not meet the test for either a preliminary or permanent injunction.
The Plaintiff has filed five successive complaints in this action: (1) an initial complaint filed on April 28, 2023 [ECF No. 1]; (2) a complaint filed on June 20, 2023 [ECF No. 11]; (3) an amended complaint filed on September 5, 2023 [ECF No. 20]; (4) a complaint filed on February 28, 2024 [ECF No. 36]; and (5) an amended complaint filed on April 1, 2024 [ECF No. 43]. The first four of those complaints state as the first claim that Ice sexually harassed and attempted to sexually assault the Plaintiff, among other claims. ECF Nos. 1, 11, 20, 36. The fifth complaint omits that allegation, instead focuses on the alleged denial of the Plaintiff's religious freedom, and asserts a claim against Ice for retaliation against the Plaintiff for filing a sexual harassment or attempted sexual assault claim, despite failing to assert in that complaint that such acts occurred. ECF No. 43 at 9, 15.
A. The Plaintiff is Not Entitled to a Preliminary Injunction
To the extent that the Plaintiff seeks preliminary injunctive relief, he cannot meet the four-part Winter test for issuance of a preliminary injunction. First, the Plaintiff has not shown he is likely to succeed on the merits in regard to his Bivens claim. The Plaintiff contends that he is being retaliated against for filing an action which accuses Defendant Ice with sexual harassment, or attempted sexual assault, despite the fact that the Plaintiff's most recent amended complaint does not contain such an allegation. ECF No. 43. Further, the Court notes that the Plaintiff fails to allege what form any alleged harassment has taken. Instead, the Plaintiff claims that Ice was assigned to be his direct supervisor and that act equates to retaliation for his filing of this cause of action. ECF No. 37 at 1-2. Although the Plaintiff contends that appointing Ice as the new unit officer is an act of retaliation, he provides no specific act or form or retaliation against him personally. Accordingly, the Court finds that the Plaintiff has failed to provide any evidence to support the first prong of the Winter test in relation to his request for preliminary injunctive relief. Even if the Plaintiff's fourth amended complaint included sexual harassment and attempted sexual assault claims against Ice, there is insufficient information and/or evidence that he would succeed on the merits as required by the first prong of the Winter test.
The Plaintiff requests permanent injunctive relief, however, it appears that the need for relief would cease upon the Plaintiff's release from custody. Thus, it appears that the needed relief is more temporary in nature. Accordingly, herein the Court considers the request for injunctive relief as a request for both a temporary and permanent injunction.
Second, the Plaintiff has not demonstrated that he is likely to suffer irreparable harm in the absence of preliminary relief. The Plaintiff's broad claim that he was “retaliated against” is impossible to assess because the Plaintiff has provided no examples of alleged retaliation, other than Defendant Ice supervising the Plaintiff at FCI Gilmer. The Plaintiff does not assert any act of retaliation other than mere supervision by Defendant Ice. The Plaintiff's assertion that he has been retaliated against does not square with the fact that at the time he filed his motion for an injunction, the Plaintiff had suffered no articulated harm.
Accordingly, it appears to the Court that other than his broad claims of retaliation related to Ice's work assignment, that the Plaintiff has failed to submit any evidence which demonstrate a need for a temporary restraining order or preliminary injunction and has failed to demonstrate that he is likely to suffer irreparable harm in the absence of injunctive relief. Thus, the Plaintiff has failed to demonstrate that he meets the second prong of the Winter test.
Even if the Court were to consider the sexual harassment and attempted sexual assault claims, there is no evidence that the Plaintiff would suffer irreparable harm based on words alone. Accordingly, he cannot meet the second prong of the Winter test.
Because the Plaintiff is unable to meet either of the first two prongs of the Winter test, the Court need not consider the third or fourth prongs. Further, because the Plaintiff is unable to meet all four parts of the Winter test for issuance of a preliminary injunction, his motion filed on March 4, 2024, is without merit.
Moreover, to the extent that Plaintiff's motion seeks to mandate action by the Defendants, Plaintiff has failed to demonstrate that he is entitled to extraordinary relief because he has failed to demonstrate that the exigencies of the situation demand such relief.
B. The Plaintiff is Not Entitled to a Permanent Injunction
As to his articulated request for a permanent injunction, the Plaintiff does not meet the four-part eBay test. First, the Plaintiff has not demonstrate that he has suffered an irreparable injury. Moreover, the Plaintiff has not even asserted that he suffered an injury, he merely contends that Officer Ice's assignment to his unit is retaliatory, without articulating any type of injury he has incurred because of Ice's assignment.
Second, the Plaintiff cannot demonstrate that remedies available are inadequate to compensate him for his injury, because he does not allege any injury.
Third, the Plaintiff does not demonstrate that considering the balance of hardships between the Plaintiff and Defendant, that a remedy in equity is warranted. Again, the Plaintiff's failure to allege any wrongdoing, or injury inflicted by Officer Ice, prevents him from proving that he faces any hardship as a result of Ice's work assignment.
See Footnote 1. Although the Plaintiff originally filed his complaint alleging he was subject to sexually harassment and attempted sexual assault by Ice, his subsequent amendments omit this allegation. In this motion, his focus appear to be retaliation and harassment by Ice's appointment as the new unit officer, without any assertion that Ice has taken any action against him since his appointment.
Because the Plaintiff is unable to meet the first three prongs of the eBay test, the Court need not consider the fourth prong. Further, because the Plaintiff is unable to meet all four parts of the eBay test for issuance of a permanent injunction, his motion filed on March 4, 2024, is without merit.
V. RECOMMENDATION
For the foregoing reasons, the undersigned RECOMMENDS that the request for injunction relief filed on March 4, 2024, [ECF No. 37] be DENIED.
Within fourteen (14) days after being served with a copy of this Recommendation, any party may file with the Clerk of the Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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).
The Clerk is directed to provide a copy of this Report and Recommendation to the pro se Petitioner by certified mail, return receipt requested, to his last known address as reflected on the docket sheet, and to all counsel of record, as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.