United States District Court, S.D. West Virginia, Charleston
CHARLES E. LAMP, JR., Plaintiff,
BETSY JIVIDEN, et al., Defendants.
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley United States Magistrate Judge.
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
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.
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”). As noted by the Real
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).
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.
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.”).
The Motions for Restraining Order against Charles
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.
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).
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 ...