United States District Court, D. South Carolina, Aiken Division
REPORT AND RECOMMENDATION
V. HODGES COLUMBIA, UNITED STATES MAGISTRATE JUDGE.
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.
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
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
Factual and Procedural Background
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.
Standard of Review
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). 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 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
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.”).
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.
Conclusion and Recommendation For the foregoing reasons, it
is recommended that the district judge deny ...