Garrett v. Aull et al

Filing 106

ORDER adopting the 68 Report and Recommendation and denying Garrett's 49 motion for a preliminary injunction hearing. This matter is referred back to the Magistrate Judge for pretrial proceedings. Signed by Honorable Cameron McGowan Currie on 4/12/2019. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Robert Louis Garrett, Jr.,

C/A. No. 0:18-1418-CMC-PJG

Plaintiff
v.
Order
Aull; Beckett, Jr.; T. Esterline; James Parrish,
Defendants.
Plaintiff Robert Louis Garrett, Jr. (Garrett) brought this pro se action alleging violations of
his constitutional rights while incarcerated in the South Carolina Department of Corrections. This
matter is before the court on Garrett’s Motion for Preliminary Injunction Hearing. ECF No. 49.
Defendants filed a response in opposition. ECF No. 59. Garrett filed a reply. ECF No. 64.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), D.S.C., the
matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings.
On December 14, 2018, the Magistrate Judge issued a Report and Recommendation (“Report”)
recommending Garrett’s motion for preliminary injunction be denied. ECF No. 68. The Magistrate
Judge advised the parties of the procedures and requirements for filing objections to the Report
and the serious consequences if they failed to do so. After several extensions of time, Garrett filed
objections on March 18, 2019. ECF No. 95. Defendants have not replied to Garrett’s objections.
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the court

may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The
court reviews only for clear error in the absence of an objection. See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.’”)
(quoting Fed. R. Civ. P. 72 advisory committee’s note).
The Magistrate Judge found the relief Garrett seeks via preliminary injunction is
unavailable, and that Garrett failed to show he will suffer irreparable harm in the absence of
injunctive relief. ECF No. 68 at 4. The Report concludes “the loss of Garrett’s legal materials
does not appear to have affected Garrett’s ability to research and prosecute his cases.” Id.
Therefore, the Report recommends denial of the motion for preliminary injunction.
Garrett objects to the Report. ECF No. 95. He complains of a “conspiracy of retaliation”
against him, details the August 22, 2018 incident when he was sprayed with chemical munitions,
and objects to the Report’s failure to “include all the facts.” Id. at 4, 5. He argues he named
specific Defendants – Lasley, Berry, Monaco, Campbell, and Jenkins – who were involved in
“illegally refusing to return 90% of Plaintiff’s Legal Files, Property, etc.” Id. at 3. He cites
Exhibits 1A, 2A, and 3A to his November 29, 2018 Reply as showing the named individuals above
lied about having anything to do with his property. Id. at 3, 4. Finally, Garrett argues “not having
all of his legal files, etc. is severely hindering Plaintiff from fighting these Actions as well as his
criminal incarceration.” Id. at 5. He submits his papers regarding his criminal case “have all been
thrown away and most can’t be replaced,” but has “hope that the other 90% of his files and property
are sitting somewhere in a closet.” Id. at 9. He requests a hearing on this motion.
2

The court agrees with the Report the preliminary injunction requested is not available in
this case. Garrett seeks a preliminary injunction requiring Defendants to return his legal files to
him. ECF No. 49. However, the individuals Garrett argues refuse to return his property (Lasley,
Berry, Monaco, Campbell, and Jenkins) are not Defendants in this case.1 Therefore, the court
cannot order the relief requested.
After considering the record, the applicable law, the Report and Recommendation of the
Magistrate Judge, and Garrett’s objections, the court agrees with the Report’s recommendation to
deny the preliminary injunction. The Report is therefore adopted and incorporated by reference.
The motion for preliminary injunction (ECF No. 49) is denied. This matter is referred back to the
Magistrate Judge for pretrial proceedings.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
April 12, 2019

1

Garrett initially filed one case with many Defendants, which was reviewed by the Magistrate
Judge and determined to be, in actuality, four different actions complaining of different acts at
different institutions. ECF No. 1. The individuals Garrett alleges destroyed or will not return his
legal files are not defendants in this action. However, Lasley is a Defendant in Case No. 18-1417,
and will be further addressed in the Order in that case.
3