United States District Court, S.D. West Virginia
CHARLES E. LAMP, JR., Plaintiff,
BETSY JIVIDEN, Commissioner, West Virginia Division of Corrections; RALPH TERRY, Warden, Mt. Olive Correctional Complex; CAPT. MCKENNEY; DAVID EWING, Correctional Officer, Mt. Olive Correctional Complex; KENNETH BOLEN, Correctional Officer, Mt. Olive Correctional Complex; CHARLES JOHNSTON, Correctional Officer, Mt. Olive Correctional Complex; NANCY JOHNSON, Counselor, Mt. Olive Correctional Complex; SGT. SLACK; DERRICK MCKENNY, Captain, Mt. Olive Correctional Complex; DONALD SLACK, Sergeant, Mt. Olive Correctional Complex; ABBIE HART, Trustee Clerk, Mount Olive Correctional Complex, individually and in her their official capacities; COLONEL JOHN FRAME; CAPTAIN BRIAN PINICK; DYLAN HAYHURST; and DONNIE AMES, Defendants.
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE
are the following pro se motions entitled as noted: (1)
plaintiff's Motion for Temporary Restraining Order on
Defendant Charles Johnston, a correctional officer at Mount
Olive Correctional Complex (ECF No. 11); (2) plaintiff's
Motion for “Emergency” Temporary Restraining
Order II (ECF No. 17); and plaintiff's Motion to Have a
Mental Health Professional Come to See Him Issued by the
Court (ECF No. 36).
plaintiff is incarcerated at the Mount Olive Correctional
Complex and is currently in a segregation unit.
Plaintiff's amended complaint, filed January 4, 2019,
alleges multiple 42 U.S.C. § 1983 violations against
prison officials and staff. In each of plaintiff's
motions specifically requesting a restraining order, (ECF
Nos. 11 and 17) he states that defendant Charles Johnston is
retaliating against him for filing this lawsuit and against
other inmates who have provided witness statements in support
of his lawsuit. Notably, plaintiff contends that defendant
Johnston is telling other inmates that plaintiff is a
“rat” or a “snitch, ” thereby causing
plaintiff “irreparable injury.” ECF No. 11, at 4.
initial motion for a temporary restraining order, he asks
that the court restrain Johnston “and all persons
acting in concert of participation with him” from
having personal contact with the plaintiff. ECF No. 11, at 1.
He seeks the same relief in his motion for
“Emergency” Temporary Restraining Order II. ECF
motion requesting that the court direct a mental health
evaluation, it appears that he requests an independent mental
health evaluation inasmuch as he contends that prison
officials falsely stated that he had refused mental health
treatment. ECF No. 36.
action was previously referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission to
the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28
U.S.C. § 636(b)(1)(B). On August 2, 2019, the magistrate
judge entered his PF&R in which he construed each of
plaintiff's three motions to be a motion for a
preliminary injunction. The PF&R also recommended that
the plaintiff's two Motions for Temporary Restraining
Order (ECF Nos. 11 and 17) and his Motion for Order for
Mental Health Treatment (ECF No. 36) be denied and that this
court leave this matter referred to the magistrate judge for
further proceedings. The plaintiff filed objections to the
PF&R on August 14, 2019.
court reviews objections de novo. “The 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)).
initial matter, the plaintiff does not raise any objection to
the magistrate judge's recommending that his motion for a
mental health evaluation be denied.
plaintiff asserts that defendant Charles Johnston, despite no
longer being stationed in the segregation unit in which
plaintiff is housed, still has contact with the plaintiff and
that “its not only a mere possibility [plaintiff] will
be harmed, its a fact he will be harmed, its just a matter of
time, this defendants actions are irreparable, there is no
question in that regard.” Objections, ECF No. 52, at 3.
This appears to be an objection to the magistrate judge's
finding that plaintiff “has asserted only theoretical
future injury. A mere possibility of harm will not suffice to
support the granting of a preliminary injunction.”
PF&R, ECF No. 51, at 5 (citing Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 21-22
asserts that the “following case laws will support his
concern for the temporary restraining order.”
Objections, ECF No. 52, at 2. Plaintiff cites seven cases
from other circuits, none of which are applicable to his
motions for preliminary injunctions.
the plaintiff has raised serious allegations against certain
defendants concerning his safety, the court agrees with the
magistrate judge, who thoroughly provided his sound reasoning
for recommending that the plaintiff's motions be denied
inasmuch as he has failed to clearly show that “he is
likely to succeed on the merits of his claims, or that he is
likely to be irreparably harmed without preliminary
injunctive relief.” PF&R, ECF No. 51, at 5; see
Winter, 555 U.S. at 20 (“A plaintiff seeking a
preliminary injunction must establish that he is likely to .
. . suffer irreparable harm in the absence of preliminary
relief . . . .”). Indeed, plaintiff's own admission
that defendant Johnston no longer works in the Quilliams
segregation units where plaintiff is housed decreases the
already speculative chances that harm will befall him.
Objections, ECF No. 52, at 2-3.
it is ORDERED as follows:
1. That the plaintiff's objections to the Proposed
Findings and Recommendation be, and they hereby are,
2. That the magistrate judge's Proposed Findings and
Recommendation be, and they hereby are, adopted and