Shorty v. Sparkman et al

Filing 35

ORDER denying 4 Motion for Preliminary Injunction; denying 4 Motion for TRO; adopting Report and Recommendations 10 ; denying 15 Motion for Entry of Default; denying 17 Motion for Entry of Default Judgment; adopting Report and Recommendations 20 . Signed by Honorable David C. Bramlette, III on 1/28/2013 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
EDDIE JAMES SHORTY

PLAINTIFF

VS.

CIVIL ACTION NO. 5:12-cv-114(DCB)(RHW)

EMMITT L. SPARKMAN, et al.

DEFENDANTS
ORDER

This cause is before the Court on the plaintiff Eddie James
Shorty (“Shorty”)’s motion for preliminary injunction and for
temporary restraining order (docket entry 4), and a Report and
Recommendation of Magistrate Judge Robert H. Walker (docket entry
10). Also before the Court are the plaintiff’s motion for entry of
default (docket entry 15) and motion for entry of default judgment
(docket entry 17), as well as a second Report and Recommendation of
Magistrate Judge Walker (docket entry 20).

Objections to the

Reports and Recommendations have been filed by the plaintiff.
Having carefully considered the magistrate judge’s findings and
conclusions, as well as the plaintiff’s objections, and being fully
advised in the premises, the Court finds as follows:
This is a pro se prisoner’s civil rights action filed pursuant
to 42 U.S.C. § 1983.

The plaintiff is serving a state court

sentence of thirty years for a conviction of armed robbery, and is
presently

incarcerated

in

the

Wilkinson

County

Correctional

Facility (“WCCF”). According to his complaint, Shorty is suing the
Deputy Commissioner of the Mississippi Department of Corrections

(Emmitt L. Sparkman), an M.D.O.C. contract monitor (Larry Lee) and
the warden at WCCF (Ray Byrd).

The plaintiff alleges in his

complaint that he is a C-custody inmate “receiving medications for
manic depression and chronic vomiting/nausea,” and that he is in
protective custody for his personal safety at WCCF.

He makes

general, conclusory claims of Eighth Amendment violations and
deliberate indifference to his physical safety premised upon WCCF’s
housing protective custody offenders two to a cell, rather than in
individual cells, and asks the Court to order that he be given a
private cell or transferred to a different facility, and to award
him $20,000 in punitive and compensatory damages.
Shorty

states

that

he

filed

his

motion

for

temporary

restraining order and preliminary injunction “to ensure that he
receive[s]

adequate

access

to

the

prison

law

library.”

He

complains that he can purchase postage stamps only every two weeks,
and makes the conclusory statement that he is being retaliated
against by prison authorities Sparkman, Lee and Byrd in conspiracy
with law librarian Rosemary Gatlin because he filed this lawsuit.
He asks the Court for a TRO requiring the defendants to arrange to
allow him access to the prison law library.

The only facts set out

in his memorandum in support of his motion consist of Shorty’s
statement that he “is denied access to court by Defendants to
process or serve and prosecute with copies of summons and complaint
on the defendants in this case: in the month of August 2012.”

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While Shorty is proceeding pro se in this case, he is not
proceeding in forma pauperis as he has accumulated three strikes in
previous litigation he has initiated.

On August 14, 2012, the

Clerk of Court sent Shorty a memorandum advising him that it is his
responsibility to serve process on the defendants pursuant to
Fed.R.Civ.P. 4, and advising him how to accomplish this.

The

docket reflects that summons issued for the defendants on September
12, 2012.
docketed

On October 4, 2012, the Clerk of Court received and
Proofs

of

Service

in

which

Shorty

states

that

he

personally served the three defendants in the WCCF prison law
library on September 25, 2012.
The plaintiff is not authorized to serve a summons and
complaint.

Rule 4(c) of the Federal Rules of Civil Procedure

provides:
(1) In General. A summons must be served with a copy of
the complaint. The plaintiff is responsible for having
the summons and complaint served within the time allowed
by Rule 4(m) and must furnish the necessary copies to the
person who makes service.
(2) By Whom. Any person who is at least 18 years old and
not a party may serve a summons and complaint.
Since Shorty is a party to this lawsuit, he is not authorized to
serve process.
process

on

Because the docket reflects no proper service of

any

of

the

defendants,

Magistrate

Judge

Walker

recommends that the motions for entry of default and entry of
default

judgment

should

be

denied.

Having

considered

the

recommendation, and the plaintiff’s objections thereto, the Court
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agrees with the Report and Recommendation and shall deny the
motions.
To prevail on a request for temporary restraining order or
preliminary

injunction,

the

plaintiff

must

demonstrate

(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) that the threatened injury outweighs any
damage that the injunction will cause to the adverse party; and (4)
that the injunction will 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).
To prevail on a retaliation claim, the plaintiff 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.” Jones v.
Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).

The plaintiff

“must allege more than his personal belief that he is the victim of
retaliation.”

Id.

at

325.

Mere

conclusory

allegations

of

retaliation will not suffice; the plaintiff “must produce direct
evidence of motivation or, the more probable scenario, allege a
chronology of events from which retaliation may plausibly be

4

inferred.”

Id.

The plaintiff must “allege the violation of a

specific constitutional right and be prepared to establish that but
for the retaliatory motive the complained of incident ... would not
have occurred.”

Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.

1995).
In his Report and Recommendation, Magistrate Judge Walker
finds that the plaintiff’s conclusory allegations are insufficient
to

carry

his

burden

as

to

either

the

request

for

temporary

restraining order/preliminary injunction or the underlying claim of
retaliation, and therefore recommends that the motion for temporary
restraining
considered

order/preliminary
the

recommendation

injunction
and

the

be

denied.

plaintiff’s

Having
objections

thereto, the Court agrees with the Report and Recommendation and
shall deny the motion.

Accordingly,

IT IS HEREBY ORDERED that the Reports and Recommendations
(docket entries 10 and 20) are ADOPTED by the Court;
FURTHER ORDERED that the plaintiff’s motion for preliminary
injunction and for temporary restraining order (docket entry 4),
motion for entry of default (docket entry 15), and motion for entry
of default judgment (docket entry 17) are DENIED.
SO ORDERED, this the 28th day of January, 2013.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

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