Brown v. Sims et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Judge Michael T. Parker denying Plaintiff's 3 Motion for Preliminary Injunction. Signed by District Judge Keith Starrett on September 2, 2011 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

WILLIE M. BROWN
VS.

CIVIL ACTION NO. 2:11cv57-KS-MTP

BRENDA SIMS, ET AL

ORDER ADOPTING REPORT AND RECOMMENDATIONS
This cause is before the Court on Plaintiff’s Motion for Preliminary Injunction [3],
Report and Recommendation filed by Magistrate Judge Michael T. Parker [34], and
Objection thereto filed by Plaintiff [37]. The Court has considered the above documents
and the pleadings on file and finds that the Report and Recommendation should be
adopted and the motion [3] denied.
FACTUAL BACKGROUND
Plaintiff Willie M. Brown, proceeding pro se and in forma pauperis, filed his complaint
pursuant to 42 U.S.C. § 1983 on or about March 15, 2011. In his complaint and amended
complaint, and as clarified by his testimony at the Spears1 hearing, Plaintiff alleges that
Defendants Brenda Sims, Ron King, Johnnie Denmark, Hubert Davis, and Ken North violated
his privacy rights under the Fourth Amendment. Plaintiff also alleges a retaliation claim against
Brenda Sims, and claims that Defendant Ken North failed to properly investigate the retaliation
claim involving Captain Sims. See Scheduling and Case Management Order [33]. Plaintiff’s
claims occurred while he was a post-conviction inmate at the South Mississippi Correctional

1

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

Institution (“SMCI”), where he is currently incarcerated.
On March 15, 2011, Plaintiff filed a Motion for Preliminary Injunction [3]. In his Motion
[3] and Supporting Memorandum [4], Plaintiff seeks an order restricting female officers from
being present during strip-searches. In his complaint, Plaintiff alleges that on November 9,
2010, Captain Brenda Sims and other male and female officers conducted a shakedown of
Plaintiff’s unit and he was strip-searched in the presence of Captain Sims and other female
officers. He claims Captain Sims had no reason to be present during the strip-searches. Captain
Sims allegedly made several degrading comments about his nudity and the other officers
laughed. As a result, Plaintiff felt embarrassed and humiliated. Plaintiff claims that this is an
ongoing practice at SMCI and causes him and other inmates embarrassment and humiliation.
The court heard arguments on the Motion [3] from Plaintiff and Defendants during the
Spears hearing. Plaintiff claims that there is a “reasonable” likelihood that he will succeed on the
merits and that failure to grant the injunction will result in irreparable injury because he will
continue to suffer humiliation and embarrassment. See Memo [4] at 2. He further claims that
the threatened injury outweighs any damage that the injunction will cause to the adverse party,
the injunction will not have an adverse effect on the public interest, and that any remedy at law is
inadequate.
Defendants claim Plaintiff is not entitled to injunctive relief because he has failed to
demonstrate the four elements discussed below.
ANALYSIS
In this Objection Plaintiff restates his ground for the preliminary injunction. The
main thrust of his argument is that it is a violation of his Fourth Amendment rights to be
subjected to a strip search in front of female officers. He admits that he has been

moved to another building. The Court has reviewed the analysis of the motion by
Magistrate Judge Parker and finds that the weighing of the before factors used to
determine whether there a preliminary injunction is called for and finds that his analysis
is correct.
CONCLUSION
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent review of
the entire record and a de novo review of the matters raised by the objections. For the reasons
set forth above, this Court concludes that Brown’s objections lack merit and should be overruled.
The Court further concludes that the Report and Recommendation is an accurate statement of the
facts and the correct analysis of the law in all regards. Therefore, the Court accepts, approves
and adopts the Magistrate Judges’s factual findings and legal conclusions contained in the
Report and Recommendation. Accordingly, it is ordered that the Motion for Preliminary
Injunction [3] be and the same is hereby overruled.
SO ORDERED this, the 2nd day of September 2011.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE