United States District Court, D. South Carolina, Beaufort Division
David M. Persons, Petitioner,
Hector Joyner, Warden, Respondent.
Timothy M. Cain United States District Judge
David M. Persons (“Petitioner”), proceeding
pro se, filed this action pursuant to 28 U.S.C.
§ 2241 challenging the Bureau of Prisons
(“BOP”) for changing his placement date for being
placed in a halfway house or residential re-entry center
(“RRC”). In addition to the § 2241 petition,
Petitioner filed a motion for temporary restraining
order/preliminary injunction requiring defendant Warden
Hector Joyner (“Defendant”) to transfer him to a
community correction center or home confinement in compliance
with the “Second Chance Act.” (ECF No. 2). In
accordance with 28 U.S.C. § 636(b)(1) and Local Civil
Rule 73.02, D.S.C., this matter was referred to a magistrate
judge for pretrial handling. Before the court is the
magistrate judge's Report and Recommendation
(“Report”) (ECF No. 8), issued March 29, 2018,
recommending that the court deny Petitioner's motion for
temporary restraining order/preliminary injunction. The
parties were advised of their right to file objections to the
Report. (ECF No. 8 at 6). On April 13, 2017, Petitioner filed
objections. (ECF No. 10). On May 17, 2018, Defendant filed a
motion to dismiss the action. (ECF No. 13).
recommendations set forth in the Report have no presumptive
weight and the responsibility to make a final determination
in this matter remains with this court. See Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The court is charged
with making a de novo determination of the portions of the
Report to which specific objection is made, and the court may
accept, reject, or modify, in whole or in part, the
recommendation of the magistrate judge, or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
However, the court need not conduct a de novo review when a
party makes only “general and conclusory objections
that do not direct the court to a specific error in the
magistrate's proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of a timely filed,
specific objection, the magistrate judge's conclusions
are reviewed only for clear error. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005). judgment.
Report, the magistrate judge recommends that the court deny
Petitioner's motion for injunctive relief because
Petitioner failed to show entitlement to injunctive relief
pursuant to the appropriate standard by failing to show a
likelihood he will succeed on the merits of his claim and
failing to show that the balance of equities tips in his
favor. (ECF No. 8 at 2-4) (citing The Real Truth About
Obama, Inc. v. Federal Election Comm'n, 575 F.3d
342, 346-47 (4th Cir. 2009) (parties seeking preliminary
injunctions must demonstrate that: (1) they are likely to
succeed on the merits, (2) they are likely to suffer
irreparable harm, (3) the balance of hardships tips in their
favor, and (4) the injunction is in the public interest)).
objections, Petitioner fails to allege specific error to any
substantive portions of the magistrate judge's Report.
Rather, Petitioner reasserts the argument from his petition
that he was granted less time in a RRC than fellow inmates
because of his disability (the fact that he is wheelchair
bound) and his inability to work and pay for his subsistence,
and he argues in a conclusory manner that he is likely to
succeed on the merits of his claim. However, his argument
fails to provide any evidence that his decrease in RRC time
was due to his disability or that he was treated differently
from other inmates based on his disability. See Morrison
v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
Moreover, Petitioner attached a response to his
administrative appeal from Case Management Coordinator at
Estill Federal Correctional Institution
(“Estill”) Jacqueline Brown which states that his
failure to get the time anticipated in RRC was due to a lack
of bed space. (ECF No. 10-1 at 2). This response is
consistent with an earlier memorandum to the inmate
population at Estill from November 1, 2017, attached to
Petitioner's petition, which states that “the
reason for the . . . changes in placement dates is due to
fiscal constraints and overcrowding at the contracted halfway
houses.” (ECF No. 1-1 at 2). Based on the information
before the court, Petitioner fails to make a clear showing
that he is likely to succeed on his habeas corpus claim.
Pashby v. Delia, 709 F.3d 307, 321 (4th Cir. 2013)
(Parties seeking preliminary injunctions “need not show
a certainty of success, ” but must “make a clear
showing that they are likely to succeed at trial.”).
The failure to show any one of the relevant factors mandates
denial of the preliminary injunction. Real Truth,
575 F.3d at 346. Accordingly, Petitioner's objection
lacks merit and he fails to meet the high standard necessary
to merit injunctive relief. Real Truth, 575 F.3d at
346 (“Injunctive relief [is] an extraordinary remedy
that may only be awarded upon a clear showing that the
[Petitioner] is entitled to such relief.”).
thorough review of the Report and the record in this case,
the court adopts the magistrate judge's Report (ECF No.
8) and incorporates it herein. Accordingly, Petitioner's
motion for injunctive relief (ECF No. 2) is
IS SO ORDERED.
 The court notes that it appears
Petitioner is currently in a RRC, and his motion is thus