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Lamp v. Jividen

United States District Court, S.D. West Virginia, Charleston

August 2, 2019

CHARLES E. LAMP, JR., Plaintiff,
v.
BETSY JIVIDEN, et al., Defendants.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge.

         This matter is assigned to the Honorable John T. Copenhaver, Jr., Senior United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). Pending before the court are the following motions: (1) the plaintiff's Motion for Temporary Restraining Order on Defendant Charles Johnston (ECF No. 11); (2) the plaintiff's Motion for “Emergency” Temporary Restraining Order II (ECF No. 17); and the plaintiff's Motion to Have a Mental Health Professional Come to See Him Issued by the Court (hereinafter “Motion for Order for Mental Health Treatment”) (ECF No. 36). Given the current procedural posture of this matter, the undersigned construes each of these motions to be seeking preliminary injunctive relief and will address each motion under the standard applicable thereto.

         STANDARD OF REVIEW

         Other than differences in notice requirements and time frame, the standards for obtaining a preliminary injunction or a temporary restraining order are the same. See Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 422 (4th Cir. 1999). Rule 65(a) of the Federal Rules of Civil Procedure provides that a court may issue a preliminary injunction only on fair notice to the adverse party. Fed.R.Civ.P. 65(a). The remainder of the rule addresses the procedure for a hearing on motions for a preliminary injunction and the scope of any such injunction. Id.

         “[P]reliminary injunctions are not to be granted automatically.” Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980). Rather, the discretion of the court to issue such an injunction should be “sparingly exercised.” Id. at 286. To 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) (hereinafter “Real Truth”)[1]. As noted by the Real Truth Court:

A preliminary injunction is an extraordinary remedy afforded prior to trial at the discretion of the district court that grants relief pendente lite of the type available after the trial. See In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 524-26 (4th Cir. 2003); see also De Beers Consol. Mines, Ltd. V. United States, 325 U.S. 212, 220-21, 65 S.Ct. 1130, 80 L.Ed. 1566 (1945). Because a preliminary injunction affords, on a temporary basis, the relief that can be granted permanently after trial, the party seeking the preliminary injunction must demonstrate by “a clear showing” that, among other things, it is likely to succeed on the merits at trial. Winter, 129 S.Ct. at 376; see also Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam). * * * Indeed, the Court in Winter rejected a standard that allowed the plaintiff to demonstrate only a “possibility” of irreparable harm because that standard was “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.” Id. at 375-76.

575 F.3d 345-46; see also Dewhurst v. Century Aluminum Co., 649 F.2d 287, 290 (4th Cir. 2011).

         The Real Truth decision emphasizes that “the Winter requirement that the plaintiff clearly demonstrate that [he] will likely succeed on the merits is far stricter than the [Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977)] requirement that the plaintiff demonstrate only a grave or serious question for litigation.” Id. at 346-47. The Real Truth further distinguishes the Winter standard from the old Blackwelder standard because it no longer requires the court to balance the irreparable harm to the respective parties, but rather requires the plaintiff to make a clear showing that he is likely to be irreparably harmed, and the court must pay particular attention to the public consequences in employing the extraordinary remedy of an injunction. The Court again emphasized that all four factors must be met in order to justify this extraordinary relief. Id. at 347. Thus, the Court stated that the standard articulated in Winter would henceforth govern the issuance of preliminary injunctions in all federal courts. Id.

         This demanding standard is even more exacting when a plaintiff seeks a preliminary injunction mandating action, as compared to the typical form of preliminary injunction that merely preserves the status quo pending trial. See East Tennessee Nat. Gas v. Sage, 361 F.3d 808, 828 (4th Cir. 2004); 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 demand such relief.”).

         DISCUSSION

         A. The Motions for Restraining Order against Charles Johnson.

         The plaintiff is an inmate housed in the Quilliams segregation units at the Mount Olive Correctional Complex. The plaintiff filed his initial Complaint in this matter on October 18, 2018, alleging that, after he had made complaints and/or filed grievances concerning assaults by correctional staff on two other inmates on his unit, the defendants herein began retaliating against him in a number of ways. In particular, he alleges that defendant Charles Johnston told other inmates that the plaintiff is a “rat” or a “snitch, ” placing his safety at risk.[2]

         In both the Motion for Temporary Restraining Order on Defendant Charles Johnston (ECF No. 11) and the Motion for “Emergency” Temporary Restraining Order II (ECF No. 17), the plaintiff repeats his allegation that, in retaliation for his prior complaints and grievances, defendant Johnston has told other inmates that he is a “rat” or a “snitch, ” and he requests that the court restrain Johnston, “and all persons acting in concert or participation with him, ” from having any personal contact with the plaintiff. He further requests that the court order that Johnston and his superiors be “held responsible and terminated from employment and also charged immediately” if the plaintiff is assaulted or injured. (ECF No. 11 at 1).

         In support of his motions, the plaintiff has provided several statements from other inmates who allegedly witnessed Johnston's statements. He further speculates that Johnston “is trying his best to have the plaintiff very seriously injured or killed.” (ECF No. 11 at 6). He claims that Johnston personally threatened him with “serious repercussions” if he did not dismiss this civil action, and that Johnston attempted to set him up with false disciplinary violations. (ECF No. 17 at 2-4). The plaintiff's second motion further alleges that that one of the inmates who provided a witness statement for him was subsequently beaten by correctional officers. (Id. at 6). Both motions contend that, despite filing ...


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