United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION
GROH CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is the Report and Recommendation
("R&R") of United States Magistrate Judge
Robert W. Trumble. Pursuant to this Court's Local Rules,
this action was referred to Magistrate Judge Trumble for
submission of a proposed R&R. Magistrate Judge Trumble
issued his R&R [ECF No. 5] on March 7, 2019. In his
R&R, Magistrate Judge Trumble recommends that the
Plaintiff's Complaint [ECF No. 1] be dismissed without
Standard of Review
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of the magistrate judge's
findings where objection is made. However, the Court is not
required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate
judge to which no objection is made. Thomas v. Arn,
474 U.S. 140, 150 (1985). Failure to file timely objections
constitutes a waiver of de novo review and of a
plaintiff's right to appeal this Court's Order.
28.U.S.C. § 636(b)(1); Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v.
Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of service. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). Service was accepted by the
pro se Plaintiff on March 11, 2019. ECF No. 6. The
Plaintiff filed his objections on March 21, 2019. ECF No. 7.
Accordingly, the Court will review the portions of the
R&R to which the Plaintiff objects de novo.
Plaintiff's § 1983 claim arises from the
Plaintiff's allegation that a correctional officer at the
Huttonsville Correctional Center threatened his life on
February 18, 2019. ECF No. 1 at 1. Specifically, the
Plaintiff alleges that the correctional officer threatened to
“beat [his] [ ] ass, ” at some future time.
Id. at 2. In light of this event, the Plaintiff
states that he is “in fear for [his] life” and
requests that the Court order his transfer out of the
Huttonsville Correctional Center.
March 4, 2019, the Plaintiff responded to the Court's
notice of deficient pleading. ECF No. 4. Therein, the
Plaintiff stated that he cannot bring a § 1983 claim
because he has not exhausted his administrative remedies.
Id. at 1 . However, the Plaintiff argues that prison
officials are actively preventing him from exhausting his
administrative remedies. Id. Therefore, the
Plaintiff moves the Court for injunctive relief and asks the
Court to: (1) order the Defendant to provide him with copies
of the grievances he has filed; and (2) schedule a hearing so
that the Plaintiff may explain how he is unable to exhaust
his administrative remedies. ECF No. 4 at 4. The Plaintiff
states that he previously filed the same motion in Circuit
Court of Randolph County, West Virginia, but that he has not
received a response. Id. at 2.
the Plaintiff admits that he has not exhausted his
administrative remedies as required by § 1983, the only
issue is whether the Plaintiff is entitled to the injunctive
relief that he requests.
demonstrate a right to injunctive relief, a plaintiff must
establish “that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in
his favor, and that an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council,
Inc. 555 U.S. 7, 20 (2008); see also Int'l
Refugee Assistance Project v. Trump, 883 F.3d 233,
255-56 (4th Cir. 2018), as amended (Feb. 28, 2018).
case, the Plaintiff cannot meet the four-part Winter
test. First, he cannot establish that he is likely to succeed
on the merits. While the Plaintiff asserts that he has been
denied the opportunity to exhaust his administrative
remedies, he filed the instant action only five days
after the event of which he complains. It is clear that an
insufficient amount of time has passed from the incident for
the Plaintiff to have exhausted, or even attempted to
exhaust, all of his administrative remedies with respect to
his claim. Therefore, it is unlikely that the Plaintiff can
succeed on the merits of his claim.
the Plaintiff has not demonstrated that he is likely to
suffer irreparable harm in the absence of preliminary relief.
While the Plaintiff argues in his objections that he will be
irreparably harmed “in the event he was hit in his
head, ” there are no facts which indicate that he is
likely to be hit in his head in the immediate
future. The Supreme Court has held that a
“possibility” of future harm does not meet the
standard. See Winter, 555 U.S. at 22. Rather, the
plaintiff must show that irreparable injury is
likely in the absence of an injunction. Id.
Here, a single incident in which a correctional officer