Opinion
No. 4:13-CV-00074-GHD-SAA
11-06-2014
EDWARD D. WARD PLAINTIFF v. STATE OF MISSISSIPPI, ET AL. DEFENDANTS
ORDER DENYING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION
This matter comes before the court on the plaintiff's motion for a temporary restraining order or, in the alternative, for a preliminary injunction. The plaintiff is an inmate currently housed at the Mississippi State Penitentiary. The pjaintiff seeks an order from the court for the defendants to transfer him to another facility because he believes the defendants are harassing him and retaliating against him because he filed the instant suit.
A party must prove four elements to be entitled to preliminary injunctive relief: (I) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury to the movant outweighs any harm that may result from the injunction to the non-movant; and (4) that the injunction will not disserve the public interest. DSC Communications Corp. v. DGI Technologies, Inc., 81 F.3d 597,600 (5th Cir. 1996); Rodriguez v. United States, 66 F.3d 95, 97 (5th Cir. 1995), cert. denied, 116 S. Ct 1058, 134 L. Ed. 2d 202 (1996); Cherokee Pump & Equipment, Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir. 1994); Doe v. Duncanville Independent School District, 994 F.2d 160, 163 (5th Cir. 1993); Plains Cotton Co-op Association v. Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1259 (5th Cir.), cert. denied, 484 U.S. 821, 108 S. Ct. 80, 98 L. Ed. 2d 42 (1987); Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). A preliminary injunction is an extraordinary remedy. Cherokee Pump, 38 F.3d at 249. It is "not to be granted routinely, but only when the movant, by a clear showing, carries [the] burden of persuasion." Black Fire Fighters Association v. City of Dallas, 905 F.2d 63, 65 (5* Cir. 1990) (quoting Holland American Insurance Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)); Cherokee Pump, 38 F.3d at 249 (quoting Mississippi Power & Light v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)) ("The decision to grant a preliminary injunction is to be treated as the exception rather than the rule").
The plaintiff is unable to demonstrate a substantial likelihood of success on the merits in light of his argument as framed in the instant motion. Ward alleges that Corrections Officer Shanequa Pollard told him that he is nothing but a rapist - and that she hoped someone rapes him while he is in prison. In addition, Corrections Officer Alicia Chappie asked, in the presence of other inmates, "When you went to court last week, did you tell the judge that you raped an 80-year-old lady?" Ward believes that making that comment in the presence of other inmates put his life in danger because inmates generally detest rapists.
No Evidence of Retaliation
Prison officials may not retaliate against prisoners for exercising their constitutional rights. Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006). On the other hand, courts must view such claims with skepticism to keep from getting bogged down in every act of discipline prison officials impose. Id. The elements of a claim under a retaliation theory are the plaintiff's invocation of "a specific constitutional right," the defendant's intent to retaliate against the plaintiff for his or her exercise of that right, a retaliatory adverse act, and causation, i.e., "but for the retaliatory motive the complained of incident . . . would not have occurred." Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (citations omitted ), cert. denied, 516 U.S. 1084, 116 S. Ct. 800, 133 L. Ed. 2d 747 (1996). A prisoner seeking to establish a retaliation claim must also show that the prison official's conduct was sufficiently adverse so that it would be capable of deterring a person of ordinary firmness from exercising his constitutional rights in the future. Winding v. Grimes, 4:08CV99-FKB, 2010 WL 706515 at 3 (S.D. Miss. Feb. 22, 2010); citing Morris v. Powell, 449 F.3d 682, 684-85 (5th Cir.2006) at 685. A single incident involving a minor sanction is insufficient to prove retaliation. Davis v. Kelly, 2:10CV271-KS-MTP (citing Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999), 2:10CV271-KS-MTP, 2012 WL 3544865 Id.). Similarly, inconsequential (de minimis) acts by prison officials do not give rise to an actionable retaliation claim. See Morris at 685.
To prove a claim of retaliation, Ward must show that he engaged in constitutionally protected activity (seeking redress for grievances), faced significant adverse consequences (the comments), and that such action was taken "in an effort to chill [his] access to the courts or to punish [him]for having . brought suit." Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1296 (5th Cir.), cert. denied, 513 U.S. 926, 115 S. Ct. 312, 130 L. Ed. 2d 275 (1994); see also Serio v. Members of Louisiana State Board of Pardons, 821 F.2d 1112, 1114 (5th Cir. 1987). The showing in such cases must be more than the prisoner's "personal belief that he is the victim of retaliation." Woods v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995). Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). First, neither of these comments evinces an intent to retaliate; instead, the comments tend to show the guards' distaste for the nature of Ward's crime. In addition, Ward has shown nothing more than his personal belief that comments were made in order to chill future attempts to seek redress in court, or to punish him for doing so in this case.
As such, the plaintiff has not demonstrated a substantial likelihood that he will prevail on his claim, and the instant motion for a temporary restraining order or preliminary injunction will be denied.
SO ORDERED, this, the 6th day of November, 2014.
/s/_________
SENIOR JUDGE