Lott v. Budz et al

Filing 57

ORDER RULING ON REPORT AND RECOMMENDATION 41 . The Court adopts the R & R of the Magistrate Judge (Dkt. No. 41) as the order of the Court and DENIES Plaintiffs motion for temporary restraining order. (Dkt. No. 34.) Signed by Honorable Richard M Gergel on 12/2/2019. (kric, ) Modified on 12/2/2019 to edit text (kric, ).

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILE DIVISION
Mark T. Lott,
Plaintiff,
V.

Timothy Budz, Jared Anderson,
and Chris Kunkle,

Civil Action No. 6:19-cv-1087-RMG

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ORDER

Defendants.
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Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge
(Dkt. No. 41) recommending the Court deny Plaintiffs motion for temporary restraining order
(Dkt. No. 34.) For the reasons set forth below, the Court adopts the R & Ras the order of the Court
to deny Plaintiffs motion for temporary restraining order.
I.

Background
Plaintiff, Mark T. Lott, proceeding_ pro se, filed an action alleging violations of his

constitutional rights pursuant to 42 U.S .C. § 1983. (Dkt. Nos. 1, 21.) The matter before the Court
is Plaintiffs motion for temporary restraining order, filed on October 9, 2019. (Dkt. No. 34.)
Plaintiff is currently in the custody of the Sexually Violent Predator Treatment Program
("SVPTP") of the South Carolina Department of Mental Health. In his amended complaint,
Plaintiff claims that Defendants violated his constitutional rights because he was assaulted by
another SVPTP resident, Resident K, and "no action was taken to protect the plaintiff after the 1st
assault." (Dkt. No. 21.) Plaintiff asserts that, on October 4, 2019, he was placed in the Secure
Management Unit ("SMU"), where Resident K was also housed. (Dkt. No. 34.) He alleges that the

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placement puts him at risk and subjects him to emotional and mental abuse based on Resident K's
previous assaults against him. (Id.)
Plaintiff seeks a temporary restraining order against Resident K and to "be moved off the
unit with [Resident K]." (Id.) Defendants filed a response in opposition to Plaintiffs motion on
October 22, 2019. (Dkt. No. 37.) The Magistrate Judge issued an R & R denying Plaintiffs motion
for temporary restraining order on October 28, 2019. (Dkt. No. 41.) Plaintiff filed objections to the
R & Ron November 8, 2019 (Dkt. No. 48.)
II.

Legal Standard
A.

Report and Recommendation

The Magistrate Judge makes only a recommendation to this Court that has no presumptive
weight. The responsibility to make a final determination remains with the Court. See Mathews v.

Weber, 423 U.S. 261, 270- 71 (1976). The Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). This
Court must make a de nova determination of those portions of the R & R Plaintiff specifically
objects. Fed. R. Civ. P. 72(b)(2). Where Plaintiff fails to file any specific objections, "a district
court need not conduct a de nova 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." Diamond v. Colonial Life
& Accident Ins. Co., 416 F .3d 310, 315 (4th Cir. 2005) (internal quotation omitted). "Moreover,

in the absence of specific objections to the R & R, the Court need not give any explanation for
adopting the recommendation." Wilson v. SC Dept of Corr., No. 9:14-CV-4365-RMG, 2015 WL
1124701, at* 1 (D.S.C. Mar. 12, 2015). See also Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983).
Plaintiff filed objections in this case and the R & R is reviewed de nova.
B.

Temporary Restraining Order

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The substantive standard for granting either a temporary restraining order or a preliminary
injunction is the same. Dyke v. Staphen, No. CV 6:18-402-TMC-KFM, 2018 WL 2144551 , at *1
(D.S.C. Apr. 19, 2018). A preliminary injunction or a temporary restraining order is warranted
when the movant demonstrates four factors: (1) the movant's likelihood of success on the merits,
(2) whether the movant will face irreparable harm in the absence of preliminary relief, (3) whether
the balance of equities favors preliminary relief, and (4) whether injunctive relief is in the public
interest. Winter v. Nat. Res. Def Council, Inc., 555 U.S. 7, 20 (2008).

III.

Discussion
Upon a review of the R & R, the parties ' arguments, and the Plaintiffs objections, the

Court finds the Magistrate Judge ably addressed the issues and correctly concluded that Plaintiffs
motion should be denied. The Magistrate Judge construed Plaintiffs motion as a preliminary
injunction as Defendants received notice and responded to the motion. (Dkt. No. 41 at 1-2.) See,

e.g., Mickell v. Reynolds, No. CV 6:15-04656-RBH-KFM, 2016 WL 3049358, at *2 n.3 (D.S.C.
May 31 , 2016) (citation omitted) ("Because Defendants have received notice and an opportunity
to respond, the Court treats Plaintiffs motion as one for a preliminary injunction.").
The Court applied the Winter factors to the case at hand and finds that Plaintiff fails to
establish the elements necessary for the Court to grant a preliminary injunction. With regard to the
first factor, Plaintiff does not demonstrate a likelihood of success on the merits. Defendant Budz,
the Facility Administrator for Correct Care of South Carolina, LLC d/b/a/ Wellpath at SVPTP,
filed an affidavit. (Dkt. No . 37-1.) In his affidavit, Defendant Budz avers that Resident K remains
in the SMU and is on Protective Custody, or "lockdown" where residents are behind locked doors
and have no contact with other residents outside the presence of Wellpath staff. (Dkt. No . 37-1 at
2.) According to Defendant Budz, Resident K is not allowed to leave his room unless accompanied

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by Wellpath staff and Resident K' s movements are controlled by Wellpath staff and separate from
Plaintiffs. (Id. at 3.) Defendant Budz avers that while Plaintiff is also in the SMU he remains
separated from Resident K due to Resident K's Protective Custody status. (Id. at 3.) In light of the
averments set forth by Defendant Budz, Plaintiff fails to establish a likelihood of success on the
merits.
With regard to the second factor, Plaintiff fails to demonstrate he will suffer irreparable
harm if the motion is not granted. Plaintiffs motion is based on mere speculation that "anything
could happen again" and "defendants do not know what may happen should [he] not be allowed
relief. " (Dkt. No. 34.) As the Magistrate Judge noted, "the clear showing of irreparable harm
proffered by the movant cannot be either remote or speculative; it must be both actual and
immediate." Al-Aboodv. El-Shamari, 71 F. Supp. 2d 511 , 514 (E.D. Va. 1999). This Court agrees
with the determination of the Magistrate Judge.
With regard to elements three and four, the Court agrees with the R & R of the Magistrate
Judge that Plaintiff has failed to demonstrate the balance of equities tip in his favor or that a
temporary restraining order or preliminary injunction is within the public interest. The primary
purpose of injunctive relief is to preserve the status quo pending a resolution on the merits. Wetzel

v. Edwards, 63 5 F .2d 283, 286 (4th Cir. 1980). The issuing of a preliminary injunction or
temporary restraining order in this instance would change the status quo before the parties have an
opportunity to litigate this case. Plaintiffs allegations do not demonstrate that exigent
circumstances exist that require the Court to issue a temporary restraining order.

IV.

Conclusion

For the foregoing reasons, the Court ADOPTS the R & R of the Magistrate Judge (Dkt.
No . 41) as the order of the Court and DENIES Plaintiffs motion for temporary restraining order.
(Dkt. No. 34.)

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AND IT IS SO ORDERED.

~Lt.~ksu

United States District Court Judge

"Nnvember L 2019
Charleston, South Carolina

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