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Vann v. United States

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

February 7, 2018

Keith Aaron Vann, Plaintiff,
v.
United States of America, Defendant.

          REPORT AND RECOMMENDATION

          SHIVA V. HODGES COLUMBIA, UNITED STATES MAGISTRATE JUDGE.

         Keith Aaron Vann (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that he was injured by negligent actions taken by Antonio McFarrin, former Food Service Administrator at the Federal Correctional Institution (“FCI”) Estill; Ronn Brown (“Brown”), Assistant Food Service Administrator at FCI Estill; Jorge Lopez (“Lopez”), Cook Foreman at FCI Estill; and Alma Tzontlimatzi (“Tzontlimatzi”), Food Service Warehouse Foreman at FCI Estill (collectively “Employees”). The court interprets Plaintiff's claims as brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (1988) (“FTCA”), as amended. Pursuant to the Westfall Act amendment to the FTCA, the United States was substituted in place of the Employees as the party defendant. 28 U.S.C. § 2679(d)(1); ECF No. 26.

         This matter comes before the court on Plaintiff's letter to the undersigned requesting the court issue a restraining order against Brown and Lopez. [ECF No. 17]. The court interprets the letter as a motion for a temporary restraining order (“TRO motion”). The motion having been fully briefed [ECF Nos. 19, 20, 23, 24], it is ripe for disposition.

         All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.). Because the motion requests injunctive relief, it is dispositive, and this Report and Recommendation is entered for the district judge's consideration.

         I. Factual and Procedural Background

         Plaintiff alleges that Brown and Lopez “continue to harass, threaten, [and] intimidate” him after they accepted service of this lawsuit against them. [ECF No. 17 at 1]. Plaintiff also complains that Lopez completed a “Work Performance Rating” that rated him low, even though Lopez was not Plaintiff's direct supervisor during the relevant period. Plaintiff seeks a restraining order requiring Brown and Lopez to stay 1000 feet away from Plaintiff at all times, or in the alternative, an order requiring they be transferred to another facility because he fears for his safety. Id.

         II. Discussion

         A. Standard of Review

         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 Resources Defense Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Federal Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), overruling Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977).[1] 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.[2] 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).

         B. Analysis

         First, Plaintiff has not demonstrated a clear likelihood of success on the merits of his motions. Fed.R.Civ.P. 8(a)(2) provides that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although the court must liberally construe a pro se pleading, the Unites States Supreme Court has made clear that a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the pleading must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the pleading's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79. Plaintiff's TRO demonstrates the evaluation he complained about was changed to reflect higher rating marks once he alerted the Associate Warden that the incorrect supervisor was listed. Further, as there is no constitutional right for a prisoner to be housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution, see Olim v. Wakinekona, 461 U.S. 238 (1983), there is no protected liberty interest in his requested relief of transferring BOP employees to another institution.

         Next, Plaintiff has failed to make a clear showing that he will suffer irreparable harm if the BOP employees are not transferred or if the restraining order is not issued. Plaintiff has not produced any evidence to show that he is likely to suffer irreparable harm from staff who allegedly continue to harass, threaten, or intimidate him. Plaintiff fails to demonstrate any imminent threat to his safety. See Winter, 555 U.S. at 22 (stating that a mere possibility of harm is not sufficient to warrant injunctive relief); see also Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (“Specificity is necessary so that prison officials are not required to file unnecessary responses to speculative allegations.”).

         Finally, Plaintiff fails to meet his burden of proving that the balance of equities tips in his favor, and he fails to show how the public interest would be served by the issuance of a preliminary injunction or TRO. As Plaintiff has not demonstrated a likelihood of success on the merits or more than a possibility of irreparable harm, and because the balance of the equities and the public interest involved do not warrant the extraordinary remedy of injunctive relief, Plaintiff's motions for preliminary injunction and TRO should be denied.

         III. Conclusion and Recommendation For the foregoing reasons, it is recommended that the district judge deny ...


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