United States District Court, D. South Carolina, Aiken Division
R. BRYAN HARWELL, District Judge.
Plaintiff Akeem Alim-Nafis Abdullah-Malik ("Plaintiff"), a state prisoner proceeding pro se, filed this action against the above captioned Defendants pursuant to 42 U.S.C. § 1983 on January 14, 2014. See Compl., ECF No. 1; Am. Compl., ECF No. 14. Plaintiff subsequently made two motions for temporary restraining orders ("TROs") on November 14, 2014 and November 17, 2014. See ECF Nos. 133-34. The matter is now before the Court for review of the Report and Recommendation ("R & R") of United States Magistrate Judge Shiva V. Hodges. See R & R, ECF No. 140. In her R & R, the Magistrate Judge recommends the Court deny Plaintiff's motions for a TRO. See id. at 5.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate's proposed findings and recommendations." Id. Moreover, in the absence of objections to the R & R, the Court is not required to give any explanation for adopting the recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of objections, the Court must "satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
TEMPORARY RESTRAINING ORDER STANDARD
The substantive standard for granting either a temporary restraining order or a preliminary injunction is the same. See e.g., U.S. Dep't of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n.1 (4th Cir. 2006). Temporary restraining orders are governed by Rule 65 of the Federal Rules of Civil Procedure, which provides that a temporary restraining order shall not issue in the absence of "specific facts [which] clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party may be heard in opposition." Fed.R.Civ.P. 65(b)(1). The United States Supreme Court has held that a party seeking a preliminary injunction or temporary restraining order must establish all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief;
(3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reissued in part, 607 F.3d 355 (4th Cir. 2010). A plaintiff must make a clear showing that he is likely to succeed on the merits of his claim. Winter, 555 U.S. at 22; Real Truth, 575 F.3d at 345-46. Similarly, he must make a clear showing that he is likely to be irreparably harmed absent injunctive relief. Winter, 555 U.S. at 19-20; Real Truth, 575 F.3d at 347. Only then may the court consider whether the balance of equities tips in the party's favor. See Real Truth, 575 F.3d at 346-47. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. Real Truth, 575 F.3d at 347 (quoting Winter, 555 U.S. at 19-23).
Plaintiff's alleges in his TRO motions that mail personnel at the Kershaw Correctional Institution ("KCI") refuse to process his legal mail. See ECF No. 133 at 1; ECF No. 143 at 5-6. He asserts that this "impede[s] due process." See ECF No. 133 at 1. Plaintiff requests a TRO to prevent further delays with his mail, and also renews his request for appointment of counsel. See id. at 3. Plaintiff attached an affidavit to one of his motions, asserting that his access to the courts is being impeded and his legal property confiscated. See Aff. of Plaintiff, ECF No. 134 at 5. In support of his motion, he also attached two notices from KCI mail personnel. The first notice stated that KCI received mail from "Brown and Murph Legal Services, " with an envelope from the U.S. District Court attached. See ECF No. 133-2 at 1; ECF No. 134-3 at 4. The notice states that this parcel came from a questionable address and would be sent to the correspondence committee for review. See id. The second notice states that Plaintiff received books from an individual, but that publications may only be received from the publisher. See ECF Nos. 133-2 at 2; 134-3 at 5.
II. R & R and Objections
In the R & R, the Magistrate Judge recommends the Court deny Plaintiff's motions for a TRO. The Magistrate Judge first notes that Plaintiff seeks a TRO against individuals who are not parties to this action. See ECF No. 140 at 3. The Magistrate Judge then notes that Plaintiff's motions are improper because they do not meet the specificity requirements of Rule 65(b) of the Federal Rules of Civil Procedure ("FRCP"). Next, the Magistrate Judge explains that Plaintiff failed to provide any facts demonstrating a likelihood of success on the merits. See id. at 4. The Magistrate Judge then reasons that Plaintiff failed to make a clear showing of irreparable harm. See id. ...