United States District Court, D. South Carolina, Charleston Division
REPORT & RECOMMENDATION OF THE MAGISTRATE
GORDON BAKER MAGISTRATE JUDGE
plaintiff, Mark Tillman Lott (“Plaintiff”), is
currently in the custody of the Sexually Violent Predator
Treatment Program (“SVPTP”) of the South Carolina
Department of Mental Health, having been civilly committed as
a sexually violent predator pursuant to the South Carolina
Sexually Violent Predator Act, SC Code Ann. § 44-48-10
through § 44-48-170. On May 12, 2016, the Plaintiff
filed this action pro se and in forma
pauperis, alleging that the Defendants have
discriminated against him and violated his First Amendment
rights.(See generally, Compl. 3-5, Dkt.
No. 1.) The court construes his action as one filed pursuant
to 42 U.S.C. § 1983.
matter is before the court upon the Plaintiff's
“Motion for (TRO) Temporary Restraining Order, ”
filed on June 8, 2016 (“First Motion”), and the
Plaintiff's “Motion for (TRO) Temporary Restraining
Order or Representative, ” filed on August 6, 2016
(“Second Motion”). (Dkt. Nos. 11, 21.) The
Defendants filed responses in opposition to the
Plaintiff's First Motion and Second Motion on June 30,
2016, and August 25, 2016, respectively. (Dkt. Nos. 15, 23.)
Pursuant to the provisions of Title 28, United States Code,
Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all
pretrial matters in cases involving pro se litigants
are referred to a United States Magistrate Judge for
court will consider the Plaintiff's First Motion and
Second Motion as seeking preliminary injunctions, instead of
TROs, because the Plaintiff failed to adhere to the Federal
Rules of Civil Procedure regarding TROs. First, the Plaintiff
did not comply with Rule 65(b)(1)(A) of the Federal Rules of
Civil Procedure, which requires that specific facts be set
forth in an affidavit or a verified complaint to clearly show
that immediate and irreparable injury will result to him
before the Defendants can be heard in opposition.
See Fed. R. Civ. P. 65(b)(1)(A). Second, the
Plaintiff cannot satisfy the “attorney
certification” requirement for a TRO because he is not
an attorney admitted to practice before the court.
See Fed. R. Civ. P. 65(b)(1)(B). Finally, as the
Defendants have received notice and responded to the First
Motion and the Second Motion, it is appropriate for the court
to treat the Plaintiffs' Motions as seeking a preliminary
injunction. See, e.g., Mickell v. Reynolds, C.A.
6:15-cv-04656-RBH-KFM, 2016 WL 3049358, at *2, n.3 (D.S.C.
May 31, 2016) (citation omitted) (“Because Defendants
have received notice and an opportunity to respond, the Court
treats Plaintiff's motion as one for a preliminary
injunction.”). Accordingly, the court will consider the
Plaintiff's First Motion and Second Motion as seeking a
preliminary injunction “protect[s] the status quo . . .
to prevent irreparable harm during the pendency of a lawsuit
ultimately to preserve the court's ability to render a
meaningful judgment on the merits.” In re Microsoft
Corp. Antitrust Litig., 333 F.3d 517, 525 (4th Cir.
2003) (abrogated on other grounds by eBay, Inc. v.
MercExchange, L.L.C., 547 U.S. 388 (2006)). A
preliminary injunction is “an extraordinary remedy
never awarded as of right.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a
preliminary injunction, a plaintiff must show the following:
(1) That he is likely to succeed on the merits;
(2) that he is likely to suffer irreparable harm in the
absence of preliminary relief;
(3) that the balance of equities tips in his favor; and
(4) that an injunction is in the public interest.
Id. at 20.
Plaintiff's First Motion
Plaintiff's First Motion, he contends that he has contact
with the Defendants Helff, Poholchuk, Tross, and Lindsey
“on a daily basis” and he fears that they may
retaliate against him for filing the present lawsuit. (Dkt.
No 11 at 1, ¶¶ 1-2.) By way of relief, Plaintiff
asks that Richard Brown, “who is also a resident
advisor be appointed to handle anything the Plaintiff needs
done[.]” (Dkt. No 11 at 1.)
undersigned recommends that the Plaintiff's First Motion
be denied because the Plaintiff has not met the
Winter factors. His filing does not address the
merits of his case or the likelihood of success. Moreover,
the Plaintiff has not demonstrated that he will suffer
irreparable harm if the motion for an injunction is not
granted. The Plaintiff's First Motion is based almost
entirely on his speculation that “when and if”
certain future events occur, he “fears he will be
retaliated against” by the Defendants Helff, Poholchuk,
Tross, or Lindsey because he filed the instant action. (Dkt.
No 11 at 1, ¶¶ 2-3.) This showing is insufficient;
“the clear showing of irreparable harm proffered by the
movant can not be either remote or speculative; it must be
both actual and immediate.” Al-Abood v.
El-Shamari, 71 F.Supp.2d 511, 514 (E.D. Va. 1999). Next,
the Plaintiff does not explain how the balance ...