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Lott v. Tross

United States District Court, D. South Carolina, Charleston Division

February 7, 2017

Mark Tillman Lott, PLAINTIFF,
v.
Dr. Rozanna Tross Psy Joshua Tucker Cynathia Helff Kimberly Poholchuk Holly Scaturo Shelia Lindsey Versie Bellamy DEFENDANTS.

          REPORT & RECOMMENDATION OF THE MAGISTRATE JUDGE

          MARY GORDON BAKER MAGISTRATE JUDGE

         The 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.[1](See generally, Compl. 3-5, Dkt. No. 1.) The court construes his action as one filed pursuant to 42 U.S.C. § 1983.

         This 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 consideration.

         The 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.

         Standard of Review

         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.

         The Plaintiff's First Motion

         In the 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.)

         The 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 ...


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