United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION ON PETITIONER'S MOTION
FOR A PRELIMINARY INJUNCTION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.
17, 2017, the pro se Petitioner, an inmate
then-incarcerated at FCI Gilmer in Glenville, West Virginia,
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241. ECF No. 1. Along with his petition,
Reynolds filed a motion to proceed as a pauper with a copy of
his Prisoner Trust Account Report (“PTAR”). ECF
Nos. 2 & 3. The Clerk of Court issued a Notice of
Deficient Pleading, directing Petitioner to file a copy of
the Ledger Sheets to his PTAR within twenty-one days. ECF No.
5. On August 22, 2017, a Show Cause Order was entered. ECF
No. 8. On August 23, 2017 and again on August 24, 2017,
Petitioner filed duplicate copies of his Ledger Sheets. ECF
Nos. 9 & 10. By Order entered August 28, 2017, Petitioner
was granted permission to proceed as a pauper and the filing
fee was waived. ECF No. 12. On September 7, 2017, Petitioner
wrote a letter to the Clerk of Court that was construed as
Motion for Transfer and/or Motion for Temporary Restraining
Order (“TRO”). ECF No. 14. By Order entered
September 13, 2017, the Respondent was directed to show cause
and also to file a response within seven days regarding
Petitioner's allegations in his motion for transfer/TRO.
ECF No. 15. On September 20, 2017, Petitioner filed a Motion
to Compel. ECF No. 17. That same day, Respondent filed its
response in opposition to Petitioner's motion for
transfer and TRO. ECF No. 18. Petitioner filed a reply on
September 27, 2017. ECF No. 21. On September 29, 2017,
Petitioner filed two supplements to his reply. ECF Nos. 22
& 23. On October 3, 2017, Petitioner filed another reply.
ECF No. 24. On October 5, 2017, Petitioner filed a letter to
the District Judge. ECF No. 25. On October 6, 2017,
Petitioner filed a Motion to Compel. ECF No. 26.
October 11, 2017, the Respondent filed a motion to dismiss
for lack of jurisdiction with a memorandum in support. ECF
Nos. 28 & 29. Because Petitioner was proceeding pro
se, on October 12, 2017, a Roseboro Notice was
issued. ECF No. 30. On October 11, 2017, Petitioner filed a
Motion for Correction of Error. ECF No. 29. On October 18,
2017, Petitioner wrote a letter to the court. ECF No. 32. On
October 24, 2017, Petitioner filed two responses in
opposition to Respondent's dispositive motion. ECF Nos.
33 & 34. On October 30, 2017, another letter from
Petitioner to the District Judge was docketed; as well,
Petitioner filed a supplement to his Roseboro
response. ECF Nos. 35 & 36. On November 3, 2017, and
again on November 6, 2017, Petitioner wrote two more letters
to the District Judge. ECF Nos. 37 & 38. On November 7,
2017, Petitioner filed a Motion for Sanctions; a letter to
the undersigned; and a Motion under F.R. Evidence
§§ 201(c)(2) and 201(e) [sic] for Judicial Notice.
ECF Nos. 39, 40, & 41. On November 14, 2017, Petitioner
wrote another letter to the District Judge. ECF No. 42. On
November 16, 2017, Petitioner filed an
“Emergency” motion for a Rule 65 Restraining
Order, seeking to prevent his transfer to another federal
institution, along with an Emergency Restraining
Order/Sanction. ECF Nos. 42 & 44. By Order entered
November 20, 2017, the “Emergency” motion for a
Rule 65 Restraining order was denied as moot. ECF No. 45. On
December 5, 2017, Petitioner filed a Motion for Complaint of
Violation of Rules of Professional Conduct and Suspension,
and a Motion for Permission to use Rule 36 Admissions of
Facts. ECF Nos. 47 & 48. On December 11, 2017, Petitioner
wrote another letter to the undersigned. ECF No. 49. On
February 5, 2018, Petitioner filed a document apparently
previously-filed in the Middle District of Pennsylvania,
styled as an Amendment to Hazel-Atlas Motion for Fraud Upon
the Court. ECF No. 51. On February 16, 2016, Petitioner filed
another Motion to Compel. ECF No. 52. On March 1, 2018,
Petitioner filed the instant motion for a temporary
restraining order. ECF No. 53.
instant motion for a preliminary injunction or TRO, styled as
Temporary Restraining Order/Preliminary Injunction Hearing
Schedule, Petitioner contends that he is indigent and because
his inmate trust account has a “100% Encumbrance . . .
[it] render[s] . . . [him] unable to purchase anything,
including stamps.” ECF No. 1 at 1. He contends that he
is entitled to “indigent supplies” and that staff
is “hindering [his] legal process.” Id.
preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the Petitioner
is entitled to such relief.” Dewhurst v. Century
Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011)(quoting
Winter v. Natural Res. Def. Counsel, Inc., 555 U.S.
7 (2008)); see Peterson v. National Telecommunications
& Information Admin., 505 F.Supp.2d 313, 317 (E.D.
Va. 2006)(quoting Direx Israel Ltd. V. Breakthrough Med.
Corp., 952 F.2d 802, 811 (4th Cir. 1992))(recognizing
that “[a] preliminary injunction is an extraordinary
remedy involving the exercise of a very far-reaching power,
which is to be applied only in the limited circumstances
which clearly demand it”).
order to obtain the extraordinary remedy of a preliminary
injunction, the burden is on the moving party to demonstrate:
(1) “that he is likely to succeed on the merits;”
(2) “that he is likely to suffer irreparable harm in
the absence of preliminary relief;” (3) “that the
balance of equities tips in his favor;” and (4)
“that an injunction is in the public interest.”
Dewhurst, 649 F.3d at 290 (internal quotation marks
and citations omitted). See Direx v. Israel, 952
F.2d at 812)(indicating that the moving party bears the
burden of demonstrating the propriety of a preliminary
injunction). In Dewhurst, after setting forth the
above four-part test, the United States Court of Appeals for
the Fourth Circuit separately highlighted the fact that
controlling precedent from the Supreme Court of the United
States requires that a Petitioner “clearly
show” that he is likely to succeed on the
merits. Id. Winter, 555 U.S. at 22. (emphasis
demanding standard outlined above becomes even more exacting
when a Petitioner seeks a preliminary injunction that
mandates action, as contrasted with the typical form of
preliminary injunction that merely preserves the status quo
pending trial. See East Tennessee Natural Gas Co. v.
Sage, 361 F.3d 808, 828 (4th Cir. 2004) (quoting
Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir.
1980)) (noting that ‘mandatory preliminary injunctions
do not preserve the status quo and normally should be granted
only in those circumstances when the exigencies of the
situation demands such relief'). See also In re
Microsoft Corp. Antitrust Litig., 333 F.3d 517, 525 (4th
Cir. 2003). As the Fourth Circuit has held, ordinarily,
preliminary injunctions are issued to “protect the
status quo and to prevent irreparable harm during the
pendency of the lawsuit or alternately to preserve the
court's ability to render a meaningful judgment on the
merits.” In re Microsoft Corp. Antitrust
Litig., 333 F.3d at 525. But such “[m]andatory
preliminary injunctive relief in any circumstance is
disfavored, and warranted only in the most extraordinary
circumstances.” Id. (citation omitted).
Consequently, “application of th[e] exacting standard
of review [for preliminary injunctions] is even more
searching when the relief requested “is mandatory
rather than prohibitory in nature.” Id.
Petitioner seeks a preliminary injunction or TRO requiring
that he be afforded free postage because he is indigent,
arguing that the Respondent or BOP staff's failure to
provide free stamps is hindering his legal
process. However, an analysis of the
Winter factors reveals that Petitioner's motion
for preliminary injunction fails as he has not made a clear
showing that he is likely to succeed on the merits of his
petition. The Respondent's pending motion to dismiss for
lack of jurisdiction indicates that Petitioner's claims
of actual innocence and his attempt to use 28 U.S.C. §
2255(e) to challenge his underlying sentence are not
well-founded. Therefore, based upon the record currently
before the court, Petitioner has not clearly shown that he is
likely to succeed on the merits of his claims. Because
Petitioner has not made the necessary showing as to the first
factor, it is not necessary to even reach the other factors.
See Dewhurst, 649 Fed.3d at 293 (if a party cannot
establish one of these factors, the court cannot grant a
preliminary injunction to the movant), III.
for the foregoing reasons, the undersigned
RECOMMENDS that Petitioner's Motion for
a Preliminary Injunction [ECF No. 53] be
fourteen (14) days after being served with a
copy of this Report and Recommendation, any party may file
with the Clerk of Court written objections identifying those
portions of the recommendation to which objections are made
and the basis for such objections. A copy of any objections
should also be submitted to the United States District Judge.
Failure to timely file objections to this
recommendation will result in waiver of the right to appeal
from a judgment of this Court based upon such
recommendation. 28 U.S.C. § 636(b)(1);
Thomas v. Arn, 474 U.S. 140 (1985); Wright v.
Collins, 766 F.2d 841 (4th Cir. 1985); United States
v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert.
denied, 467 U.S. 1208 (1984).
Clerk is directed to send a copy of this Report and
Recommendation to the pro se Petitioner by certified
mail, return receipt requested, to his last known address as
shown on the docket, and ...