Opinion
No. 2:04-CV-0101.
April 27, 2004
REPORT AND RECOMMENDATION TO DENY MOTION FOR TEMPORARY INJUNCTION
Plaintiff R. WAYNE JOHNSON, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, has filed a pleading entitled "Plaintiff's Original Complaint for Temporary Injunction" which has been filed by the Clerk as a prisoner civil rights complaint under Title 42., United States Code, section 1983. Plaintiff requests permission to proceed in forma pauperis.
Plaintiff has accumulated three strikes and is barred from proceeding in forma pauperis. Construing his complaint liberally and in his favor, however, such complaint could be read to allege a contention by plaintiff that he is about to be placed in imminent danger of serious physical injury.
In support of his request for injunctive relief, plaintiff states he has been confined in the Clements High Security Unit for the past several years for stabbing a black inmate in 2002. He says his restriction against being housed with any black inmates had been arbitrarily removed before the stabbing. Plaintiff alleges that now the defendants, Warden NUNN, Major BAKER and Classification Manager HASKINS have:
"signed a paper, which read [sic]: `released from Ad Segregation' on 4-5-04. The date says 4-27-04. On 4-20-04, plaintiff is scheduled to review by State classification — the date this suit is mailed."
Plaintiff says he responded by submitting a request to prison officials to be restricted from being housed with a black inmate upon his release from High Security.
Plaintiff argues that, based on his "many years of being `racially restricted' — for good cause", he will be at serious risk of injury when released from High Security, and such release is imminent. Plaintiff requests notice to defendants, a hearing, a temporary injunction to protect the status quo, and such other relief to which he is entitled.
In order to secure a preliminary injunction a movant has the burden of proving four elements:
1. A substantial likelihood of success on the merits;
2. A substantial threat that movant will suffer irreparable injury if the injunction is not issued;
3. That the threatened injury to the movant outweighs any damage the injunction might cause to the opponent; and
4. That the injunction will not be adverse to the public interest.
Dallas Cowboys Cheerleaders v. Scoreboard Posters, Inc., 600 F.2d 1184, 1187 (5th Cir. 1979).
The Court has reviewed plaintiff's complaint and notes he makes no specific allegation of any material fact from which the Court could find he is in imminent danger of serious physical injury. Instead, he alleges he was previously "racially restricted," and was placed in the High Security Unit because he stabbed a black inmate. He alleges that his anticipated release from the High Security Unit without the reinstatement of his restriction against being housed with a black cellmate will result in an assault against his person by unnamed black inmates. His allegation is both conclusory and speculative.
The Court further notes plaintiff has not alleged he ever sought administrative review of the removal of his "racially restricted" classification and has affirmatively stated that he did not file any grievances with TDCJ-CID regarding the issue. He does state he "wrote up his rendition of the events surrounding his `violent dilemma;'" however, he does not state whether he ever submitted this request to the proper TDCJ-CID officials, when or to whom he submitted it, or what resulted from its consideration.
It is clear plaintiff has not shown the requisites needed to support a grant of the requested injunctive relief.
CONCLUSION
For the reasons set forth above, it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Original Complaint for Temporary Injunction be DENIED.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested.
Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved 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. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).
IT IS SO RECOMMENDED.