Bosarge v. Epps et al

Filing 25

***DISREGARD THIS ENTRY***ORDER denying 21 Motion for TRO. Signed by Magistrate Judge Michael T. Parker on October 22, 2014. (ES) Modified on 10/22/2014 (KPM).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JERRY ALLEN BOSARGE

PLAINTIFF

VS.

CIVIL ACTION NO. 1:13cv564-KS-MTP

CHRISTOPHER EPPS, et al.

DEFENDANTS

REPORT AND RECOMMENDATION
THIS MATTER is before the court on the Motion for a Temporary Restraining Order
[21] filed by Plaintiff. The undersigned, having considered the motion and the applicable law,
recommends that the motion should be denied.
Plaintiff filed his Compliant [1] pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff
makes allegations regarding overcrowding and unsanitary food preparation conditions at
Southern Mississippi Correctional Institute. In his Motion [32], Plaintiff alleges that several
SMCI correctional officers ransacked Plaintiff’s unit, which resulted in Plaintiff’s legal papers,
including documents he intended to file in this action, being lost and/or damaged. Plaintiff
requests that this Court issue an Order enjoining Defendants from taking or destroying Plaintiff’s
legal papers, and from harassing or retaliating against Plaintiff for proceeding with his
complaint.
ANALYSIS
A party requesting a temporary restraining order or preliminary injunction must
demonstrate each of the following: 1) a substantial likelihood of success on the merits; 2) a
substantial threat that failure to grant the injunction will result in irreparable injury; 3) the
threatened injury must outweigh any damage that the injunction will cause to the adverse party;
and 4) the injunction must not have an adverse effect on the public interest. Women's Med. Ctr.

of Northwest Houston v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001). “An injunction is an
extraordinary remedy and should not issue except upon a clear showing of possible irreparable
injury.” Lewis v. S.S. Baune, 534 F.2d 1115, 1121 (5th Cir. 1976).
Plaintiff’s motion does not meet his burden of establishing the four elements required to
receive injunctive relief. See Women's Med. Ctr. of Northwest Houston v. Bell, 248 F.3d 411,
419 n.15 (5th Cir. 2001). Namely, Plaintiff has not established a substantial likelihood of success
on the merits, as the Court in fact received the document [22] he claims was taken by the SMCI
officers. See Lewis v. Casey, 518 U.S. 343, 349-52 (1996) (citation omitted) (stating that in order
to prevail on an access-to-the-courts claim, plaintiff must show an “‘actual injury’); see also
Cartner v. Lowndes County, 89 Fed. App’x. 439, 442 (5th Cir. 2004) (affirming dismissal of
access-to-the-courts claim where plaintiff failed to explain “how his position as a litigant was
adversely affected”). Furthermore, Plaintiff has since the time of the alleged incident been able
to file other court pleadings, including the instant motion.
As for the relief Plaintiff seeks from retaliation, Plaintiff has failed to allege in his
Motion that the alleged incident was in any way connected to his lawsuit, or that the SMCI
officers in question were acting with the purpose to retaliate against the Plaintiff. It is well
established that a general allegation of retaliation does not constitute a cognizable claim. See,
e.g., Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006) (holding that in order to state a claim of
retaliation, a prisoner must allege (1) a specific constitutional right, (2) the defendant’s intent to
retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and
(4) causation).

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RECOMMENDATION
For the reasons above, the undersigned recommends that Plaintiff’s Motion for a
Temporary Restraining Order [21] be DENIED.
NOTICE OF RIGHT TO OBJECT
In accordance with the rules and 28 U.S.C. § 636(b)(1), any party within fourteen days
after being served a copy of this recommendation, may serve and file written objections to the
recommendations, with a copy to the judge, the magistrate judge and the opposing party. The
District Judge at the time may accept, reject or modify in whole or part, the recommendations of
the Magistrate Judge, or may receive further evidence or recommit the matter to this court with
instructions. The parties are hereby notified that failure to file written objections to the proposed
findings, conclusions, and recommendations contained within this report and recommendation
within fourteen days after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the proposed factual findings and legal conclusions
accepted by the district court to which the party has not objected. Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
THIS the 20th day of October, 2014.
s/ Michael T. Parker
United States Magistrate Judge

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