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Dyke v. Staphen

United States District Court, D. South Carolina

April 19, 2018

Roger Allen Dyke, #347604, Plaintiff,
v.
Michael Staphen, Lisa Young, Anite Stevens, Laura H. Kawaguchi, Defendants.

          REPORT AND RECOMMENDATION

          Kevin F. McDonald United States Magistrate Judge.

         This matter comes before the court on the plaintiff's motion for an emergency protective order[1], a temporary restraining order, and a preliminary injunction (doc. 17). The plaintiff is an inmate at the South Carolina Department of Corrections' Broad River facility. The plaintiff filed his initial complaint[2] alleging general violations of Title 42, United States Code, Section 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983, and submit findings and recommendations to the district court.

         In his motion, the plaintiff alleges that defendant Lisa Young, an SCDC employee assigned to the plaintiff's restricted housing unit, has threatened him and others in retaliation for being named as a defendant in this case. He claims that he and his fellow inmates have suffered “everything from threats of physical harm, lock down, and assault, ” and Young “has made it very clear that [the plaintiff] is next.” (Doc. 17-1 at 2). With his motion, the plaintiff provides affidavits of two other inmates who corroborate his claims (docs. 17-2, 17-3).

         ANALYSIS

         The substantive standard for granting either a temporary restraining order or a preliminary injunction is the same. See e.g., U.S. Dep't of Labor v. Wolf Run Mining Co., 452 F.3d 275, 281 n. 1 (4th Cir.2006). The United States Supreme Court has held that 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 Res. Defense Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir.2009), vacated on other grounds, 559 U.S. 1089 (2010), reissued in part, 607 F.3d 355 (4th Cir.2010). 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).

         Here, the plaintiff cannot meet the first Winter factor, as he has not made a clear showing that he will succeed on the merits. Indeed, the plaintiff has yet to bring his complaint into proper form as ordered by the court (docs. 5 and 21), and until he does so, the merits of his case cannot even be considered. Moreover, the plaintiff has not clearly shown that he is likely to suffer irreparable harm without injunctive relief. While he provides his own version and the affidavits of two fellow inmates regarding Young's behavior, these accounts alone are not convincing that the plaintiff is in immediate danger or that he will otherwise suffer irreparable harm.

         CONCLUSION AND RECOMMENDATION

         Based upon the foregoing, the plaintiff's motion for an emergency protective order, a temporary restraining order, and/or a preliminary injunction (doc. 17) should be denied.

         Notice of Right to File Objections to Report and Recommendation

         The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court 300 East Washington Street Greenville, South Carolina 29601

         Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 7 ...


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