Opinion
Civil Action 1:22-CV-105
02-16-2023
BRUCE R. MERRYMAN v. BRYAN COLLIER, ET AL.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Zack Hawthorn United States Magistrate Judge
Plaintiff Bruce R. Merryman, a prisoner confined at the LeBlanc Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Bryan Collier, James Danheim, and Aaron Thompkins.
This action was referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 for findings of fact, conclusions of law, and recommendations for the disposition of the case.
Plaintiff filed a motion for injunctive relief. This Report and Recommendation considers the merits of the motion.
Discussion
A party seeking a temporary restraining order or preliminary injunction must establish the following elements: (1) there is a substantial likelihood the party will prevail on the merits; (2) a substantial threat exists that irreparable harm will result if the injunction is not granted; (3) the threatened injury outweighs the threatened harm to the defendants; and (4) the granting of the preliminary injunction will not disserve the public interest. Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). Relief should be granted only if the party seeking relief has clearly carried the burden of persuasion as to all four elements. Black Fire Fighters Ass'n v. City of Dallas, 905 F.2d 63, 64 (5th Cir. 1990).
Plaintiff claims that the thermostat for the air conditioning unit at the LeBlanc Unit is located outside the facility. Plaintiff alleges this affects the ability of the air conditioner to maintain an appropriate temperature inside the prison. Plaintiff also alleges that mold and algae are growing on the air conditioning unit and the duct work on the outside of the building. These allegations are insufficient to satisfy Plaintiff's burden of proving that there is a substantial threat of irreparable harm if injunctive relief is not granted. As a result, the motion for injunctive relief should be denied.
Recommendation
Plaintiff's motion for injunctive relief should be denied.
Objections
Within fourteen days after receipt of the magistrate judge's report, any party may serve and file written objections to the findings of facts, conclusions of law and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings of facts, conclusions of law and recommendations contained within this report within fourteen days after service shall bar an aggrieved party from the entitlement of de novo review by the district court of the proposed findings, conclusions and recommendations and from appellate review of factual findings and legal conclusions accepted by the district court except on grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72.