United States District Court, D. South Carolina
Jason A. Harbin, Plaintiff,
Lori Partin; Julian L. Stoudemire; Stoudemire & Sprouse Law, PA, Defendants.
REPORT AND RECOMMENDATION FOR DISPOSITION OF THE
MOTION FOR TRO AND/OR PRELIMINARY INJUNCTION
Jacquelyn D. Austin United States Magistrate Judge.
A. Harbin (“Plaintiff”), proceeding pro se,
brings this civil action alleging a violation of his federal
constitutional rights, and he filed a “brief in support
of Plaintiff's emergency motion for a temporary
restraining order against amendment retaliation, ”
which has been construed as a motion for temporary
restraining order (“TRO”) and/or preliminary
injunction. [See Docs. 1, 4.] Plaintiff files this
action in forma pauperis under 28 U.S.C. §
1915, and it appears that he is a non-prisoner.
undersigned has not determined yet whether service of process
should be authorized on Defendants. This matter is before
this Court on the emergency motion seeking a
alleges that he is the father of two minor children,
Lori Partin is the mother. [Doc. 4.] He appears to allege the
following facts. Julian L. Stoudemire is an attorney with
Stoudemire & Sprouse Law, PA, who has represented Lori
Partin during family court proceedings in the Tenth Judicial
Circuit of South Carolina. [Docs. 4, 5.] Plaintiff's
first, fifth, and fourteenth amendment rights have been
violated and “not upheld in this case from Oct. 4,
2011, ” which caused him to file this case and
emergency motion. [Doc. 1.] ¶ 2015, Plaintiff's
parental rights with respect to the two minor children at
issue in this case were terminated by a South Carolina family
court. [Doc. 4, Doc. 5-5 at 10.] He alleges that the two
children “are unlawfully being placed for adoption by
an unloving parent the Mother Partin.” [Doc. 4.]
appears Plaintiff appealed the family court decision to the
South Carolina Court of Appeals. [Doc. 5-5 at 1.] And, it
appears he unsuccessfully filed a petition for a writ of
certiorari in the South Carolina Supreme Court. [Doc. 5-5 at
3; Doc. 5-4 at 40 (letter from an attorney to Jason Harbin
dated Jan. 9, 2017, that Harbin had lost the case in state
alleges that due to fraud the opposing counsel blocked his
“right to obtain his parental rights as a
father.” [Doc. 4 at 8.] He contends “this is now
a question for federal court since all options were used in
state court, ” and this Court “must reinstate
Father Harbin's right to parent his children.”
appears that Plaintiff seeks an emergency order from this
Court to halt “a future fraudulent adoption of the
couple's two children” and “for a return of
minor children to custody of the loving father.” [Doc.
4 at 1.]
the legal standard adopted by our Court of Appeals, this
Plaintiff is not entitled to a temporary restraining order
without notice to the adverse party or a preliminary
injunction. See Real Truth About Obama, Inc. v. Fed.
Election Comm'n, 607 F.3d 355 (4th Cir.
2010)(per curiam) (“On further consideration,
we now reissue Parts I and II of our earlier opinion in this
case, 575 F.3d at 345-347, stating the facts and articulating
the standard for the issuance of preliminary
injunctions.”). The standard articulated in Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008),
now governs the issuance of preliminary injunctions. See
Real Truth About Obama, Inc. v. Fed. Election
Comm'n, 575 F.3d 342 (4th Cir. 2009), cert.
granted and judgment vacated, 559 U.S. 1089 (2010);
see also League of Women Voters of N.C. v. North
Carolina, 769 F.3d 224, 236 (4th Cir. 2014).
the Winter standard, Petitioner must demonstrate
“‘ that he is likely to succeed on the merits,
 that he is likely to suffer irreparable harm in the
absence of preliminary relief,  that the balance of
equities tips in his favor, and  that an injunction is in
the public interest.'” Real Truth About Obama,
Inc., 575 F.3d at 346 (quoting Winter, 555 U.S.
at 20). All four requirements must be satisfied. Id.
Furthermore, to obtain injunctive relief, Petitioner must
demonstrate more than the “possibility” of
irreparable harm because the “possibility of
irreparable harm” standard is inconsistent with the
Supreme Court's characterization of injunctive relief as
an extraordinary remedy that may only be awarded upon a clear
showing that a petitioner is entitled to such relief.
is not likely to succeed on the merits. Thus, he cannot
satisfy the first Winter prong, and the motion for
temporary restraining order/preliminary injunction should be
denied. First, Plaintiff is not likely to succeed on the
merits because he fails to allege a plausible claim pursuant
to § 1983 due to his failure to allege state action. A
civil action under § 1983 “creates a private right
of action to vindicate violations of ‘rights,
privileges, or immunities secured by the Constitution and
laws' of the United States.” Rehberg v.
Paulk, 132 S.Ct. 1497, 1501 (2012). To state a claim
under § 1983, a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution or
laws of the United States was violated, and (2) that the
alleged violation was committed by a person acting under the
color of state law. West v. Atkins, 487 U.S. 42, 48
1983 “provides a cause of action against any person who
deprives an individual of federally guaranteed rights
‘under color' of state law.” Filarsky v.
Delia, 132 S.Ct. 1657, 1661 (2012). “Anyone whose
conduct is ‘fairly attributable to the state' can
be sued as a state actor under § 1983.”
Id. The allegations against Lori Partin, the mother,
her attorney, Julian L. Stoudemire, and the law firm, seem to
allege they are private citizens or entities. There are no
allegations that the Defendants acted in any way attributable
to a state. With few exceptions, purely private conduct, no
matter how wrongful, is not actionable under 42 U.S.C. §
1983 and the United States Constitution. See Lugar v.
Edmondson Oil Co., 457 U.S. 922, 936 (1983);
Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir.
2001). Therefore, Plaintiff's likelihood of success on
his § 1983 claim is poor where he fails to allege
sufficient state action.
Plaintiff's likelihood of success on the merits of this
case is poor due to the Rooker-Feldman doctrine;
this action will likely be dismissed based on that doctrine.
Where a plaintiff files an action in a United States district
court to seek review and reversal of a state court judgment
rendered before the district court proceedings commenced, the
claim is barred by the Rooker-Feldman doctrine; only
the United States Supreme Court may review state-court
decisions. See Davani v. Virginia Dep't of
Transp., 434 F.3d 712, 719 (4th Cir. 2006) (explaining
how the expansive interpretation of the
Rooker-Feldman doctrine was limited by Exxon
Mobile Corp. V. Saudi Basic Indus. Corp., 544 U.S. 280
(2005)); see also Dukes v. Stone, No.