United States District Court, D. South Carolina
John Ervin Wilson, Jr., a/k/a John Wilson, a/k/a John E. Wilson, # 295493, Plaintiff,
Warden Williams, Defendant.
REPORT AND RECOMMENDATION
Bristow Marchant, United States Magistrate Judge
August 16, 2019, Plaintiff filed a motion for a preliminary
injunction. Planitff seeks an order requiring a return of his
“medical shoes” to him, which Plaintiff contends
were seized by prison officials.
respect to any claim for injunctive relief, such relief is an
extraordinary remedy which will not be granted unless there
is a clear showing of entitlement to relief. The Real
Truth About Obama, Inc. v. Federal Election Commission,
575 F.3d 342, 346-347 (4th Cir. 2009), judgment vacated on
other grounds, 559 U.S. 1089 (2010); see Winter v.
Natural Resources Defense Counsel, Inc., 555 U.S. 7,
19-20 (2008); Stuhlbarg Int'l Sales Co., Inc., v.
John D. Brush & Co., Inc., 240 F.3d 832, 839 n. 7
(9th Cir. 2001)). In order to obtain such relief, a Plaintiff
must establish: 1) the likelihood that the Plaintiff will
succeed on the merits; 2) the likelihood of irreparable harm
to the Plaintiff if the injunction is not granted; 3) that
the balance of equities tips in his favor; and 4) the
injunction is in the public interest. Winter, 555
U.S. at 20. All four requirements must be satisfied. The
Real Truth About Obama, Inc., 575 F.3d at 346. Further,
to obtain relief Plaintiff must demonstrate more than the
“possibility” of irreparable harm, because the
Supreme Court has held that standard is “inconsistent
with our characterization of injunctive relief as an
extraordinary remedy that may only be awarded upon a clear
showing that the Plaintiff is entitled to such relief.”
The Real Truth About Obama, Inc., 575 F.3d at 346
(citing Winter, 555 U.S. at 19-22).
respect to the first factor under Winter, Plaintiff has
failed to show a likelihood of success on his claim, as it
appears to be a disagreement between Plaintiff and the
medical professionals and/or prison officials at the prison
with respect to his medical care, which is not cognizable
under § 1983. Lamb v. Maschner, 633 F.Supp.
351, 353 (D.Kan. 1986). To the extent Plaintiff makes a
deliberate indifference claim, he will be able to litigate
the underlying merits of his claim as part of his prosecution
of this lawsuit.
the second factor under Winter, Plaintiff has not
made a clear showing that he is likely to be irreparably
harmed if preliminary relief is denied. Rather, he merely
makes a conclusory statement of harm. See Direx Israel,
Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812 (4th
Cir. 1991) [holding that a court will not grant a preliminary
injunction unless the plaintiff first makes a “clear
showing” that he will suffer irreparable injury without
it, and that the harm “must be neither remote nor
speculative, but actual and imminent”]. Indeed, the
filings of the parties show a clear dispute as to whether the
shoes at issue are even medical footwear.
Plaintiff has not shown that the balance of equities tips in
his favor, and finally, Plaintiff has not shown that an
injunction is in the public interest. See Nicholas v.
Ozmint, No. 05-3472, 2006 WL 2711852, * 5 (D.S.C. Sept.
20, 2006); see also Winter, 555 U.S. at 20 [“In
exercising their sound discretion, courts of equity should
pay particular regard for the public consequences in
employing the extraordinary remedy of injunction”].
it is recommended that Plaintiffs motion for a preliminary
injunction be denied.
parties are also referred to the Notice Page attached hereto.
of Right to File Objections to Report and
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 Defendants' Exhibit 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
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
Robin L. Blume, Clerk
United States District ...