Collins v. Anderson et al

Filing 20

REPORT AND RECOMMENDATIONS recommending plaintiff's 3 MOTION for Preliminary Injunction filed by Blaine Collins be Denied. Objections to R&R due by 11/24/2008. Signed by Magistrate Judge Bruce Howe Hendricks on 11/6/08. (kmca)

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

Blaine Collins, #173138 Plaintiff,

v. Joel Anderson, Warden of Wateree Correctional Institution, et. al., Defendants.

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Civil Action No. 8:08-2489-HMH-BHH REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

The plaintiff, a state prisoner proceeding pro se, brought this action alleging constitutional violations pursuant to 42 U.S.C. § 1983. The matter is before the court on the plaintiff's motion for a preliminary injunction. (Dkt. # 3.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(d), D.S.C., this magistrate judge is authorized to review all pretrial matters in cases filed under Title 42, United States Code, Section 1983. Rule 65 of the Federal Rules of Civil Procedure governs the issuance of both Preliminary Injunctions. In considering whether to issue an injunction under Rule 65(b), the Court must consider four factors: (1) the likelihood of irreparable harm to the plaintiff if the Court denies the preliminary injunction; (2) the likelihood of harm to the defendants if the injunction is granted; (3) the likelihood that the plaintiff will succeed on the merits of

this underlying claim; and (4) the public interest. Smith v. Ozmint, 444 F. Supp.2d 502, 504 (D.S.C. 2006). A plaintiff does not have an automatic right to a preliminary

injunction, and such relief should be used sparingly. The primary purpose of injunctive relief is to preserve the status quo pending a resolution on the merits. Injunctive relief which changes the status quo pending trial is limited to cases where "the exigencies of the situation demand such relief." Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir.1980). Additionally, functions of prison management must be left to the broad discretion of prison administrators to enable them to manage prisons safely and effectively. Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991). Courts should grant preliminary injunctive relief involving the management of prisons only under exceptional and compelling circumstances. Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir. 1994). Without a showing that plaintiff will suffer imminent, irreparable harm, the court cannot grant interlocutory injunctive relief. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir. 1991). The plaintiff must show that the irreparable harm he faces in the absence of relief is "neither remote nor speculative, but actual and imminent." Direx Israel, Ltd. v.

Breakthrough Medical Group, 952 F.2d 802, 812 (4th Cir.1991) (citation omitted). The plaintiff is seeking an order to prevent the defendants from retaliating against him in any way, including discipline, harassment, and transfers. (Mot. for Protective Order at 1.) The plaintiff has not alleged that the defendants have retaliated against him or threatened him in any way. Further, the plaintiff has not shown that irreparable harm is likely if his motion is denied. Nor has plaintiff established a likelihood that he will

eventually succeed on the merits or that the public interest lies with granting the relief. Accordingly, the plaintiff's motion for an injunction should be denied. CONCLUSION Wherefore, it is RECOMMENDED that the Plaintiff's Motion for a Preliminary Injunction (Docket Entry # 3) be DENIED. IT IS SO RECOMMENDED.

s/Bruce Howe Hendricks United States Magistrate Judge November 6, 2008 Greenville, South Carolina

The plaintiff's attention is directed to the important notice on the next page.

Notice of Right to File Objections to Report and Recommendation The parties are advised that they may file specific written objections to this Report and Recommendation with the District Court Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. 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." Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005). Specific written objections must be filed within ten (10) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three (3) days for filing by mail. Fed. R. Civ. P. 6(a) & (e). Filing by mail pursuant to Fed. R. Civ. P. 5 may be accomplished by mailing objections to: Larry W. Propes, Clerk United States District Court P.O. Box 10768 Greenville, South Carolina 29603 Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985).