United States District Court, S.D. West Virginia
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE.
are a motion to dismiss (ECF No. 34), filed by defendants
Ballard, Frame, Clifford, Mitchell, and Snider, on March 27,
2018, the plaintiff's Motion for Preliminary Injunction
and/or Protective Order (ECF No. 47), filed June 8, 2018, and
the plaintiff's Motion Requesting Order to be Moved from
Mount Olive Correctional Complex if New Offer of Settlement
is Refused (ECF No. 118), filed November 26, 2018.
action was previously referred to United States Magistrate
Judge Dwane L. Tinsley who, on February 25, 2019, submitted
his Proposed Findings and Recommendation
(“PF&R”) pursuant to the provisions of 28
U.S.C. § 636(b)(1)(B). On March 8, 2019, plaintiff
Greene filed a timely objection to the PF&R. Defendants
have neither objected nor responded to the plaintiff's
objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a
district court to ‘make a de novo determination of
those portions of the [magistrate judge's] report or
specified proposed findings or recommendations to which
objection is made.'” Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
plaintiff objects to the magistrate judge's finding that,
inasmuch as the plaintiff has failed to demonstrate by a
clear showing that he will likely succeed on the merits, he
is not entitled to preliminary injunctive relief. See
PF&R 4-6. Thus, the magistrate judge recommended that the
court deny the plaintiff's motion for preliminary
injunction as well as his Motion Requesting an Order to be
Moved from Mount Olive Correctional Complex if New Offer of
Settlement is Refused, which motion requests a move to the
Northern Correctional Facility and placement in a behavior
management program. The magistrate construed this as an
additional motion for preliminary or permanent injunctive
relief. PF&R 4. Accordingly, with respect to the
plaintiff's pending motions, the magistrate judge
examined in his PF&R whether the plaintiff made a
sufficient showing that he was entitled to a preliminary
obtain a preliminary injunction, a movant must demonstrate
that “(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.” See Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7 (2008); The Real Truth About Obama,
575 F.3d 342 (4th Cir. 2009). All four factors must be
satisfied to “justify this extraordinary relief.”
PF&R 6 (citing Real Truth, 575 F.3d at 347).
magistrate judge concluded that, in liberally construing the
plaintiff's motions, which, “appear to seek
injunctive relief in the form of a court order to release him
from segregation and transfer him to another correctional
facility, ” the plaintiff has not “clearly
shown” that he is likely to succeed on the merits or
suffer irreparable harm if preliminary injunctive relief is
not granted. PF&R 6. The plaintiff “asserts that he
can meet the criteria” for an injunction, but
“fails to make any specific request for injunctive
relief.” PF&R 4. Instead, plaintiff merely states
that “the court should issue an injunction holding that
the defendants, or their agents, cannot prevent the plaintiff
from receiving clearance for the reason that they don't
‘have a lot to lose.'” PF&R 4 (citing ECF
No. 47 at 1).
to the plaintiff's objection, Greene simply reiterates
the allegations stated in his complaint and motions that seek
injunctive relief, and then asserts that he is thus entitled
to a preliminary injunction or a protective order. See Obj.
1. Accordingly, the objection is deemed to be without merit.
It is clear from the plaintiff's pending motions that at
least two of the four elements of preliminary injunctive
relief have not been satisfied, namely, that plaintiff is
likely to succeed on the merits or suffer irreparable harm,
as correctly noted in the magistrate's PF&R.
court, accordingly, ORDERS as follows:
1. That the petitioner's objection to the PF&R be,
and hereby is, overruled.
2. That the magistrate judge's Proposed Findings and
Recommendation be, and hereby are, adopted and incorporated
3. That the plaintiff's Motion for Preliminary Injunction
and/or Protective Order (ECF No. 47) and his Motion
Requesting an Order to be Moved from Mount Olive Correctional
Complex if New Offer of Settlement is Refused (ECF No. 118)
be, and hereby are, denied.
4. That the defendants' motion to dismiss (ECF No. 34)
be, and hereby is, denied without prejudice, pending a new
responsive pleading by those defendants in view of the
addition of fifty more defendants in the Second Amended
5. That this matter be, and hereby is, again referred to the
United States Magistrate Judge for additional consideration
of the plaintiff's claims for relief contained in the
Second Amended ...