Butts v. Biggs

Filing 46

REPORT AND RECOMMENDATION: For the reason stated below, the Magistrate Judge recommends that the motion for preliminary injunction and temporary restraining order (Docket Entry 28) be denied. Signed by Magistrate Judge Joe Brown on 12/1/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ROBERT BUTTS,

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Plaintiff
v.
GARY BIGGS, II,
Defendant
TO:

No. 3:15-0277
Judge Trauger/Brown
Jury Demand

THE HONORABLE ALETA A. TRAUGER
REPORT AND RECOMMENDATION
For

the

reason

stated

below,

the

Magistrate

Judge

recommends that the motion for preliminary injunction and temporary
restraining order (Docket Entry 28) be denied.
BACKGROUND
The Plaintiff, after a number of false starts, was
allowed to proceed on his amended complaint against the Defendant
Biggs as the sole Defendant in this case (Docket Entry 25). The
present claims in this matter are that Officer Biggs retaliated
against the Plaintiff’s for complaining about his mistreatment by
searching his cell, confiscating a medical support device (a wrist
brace) and filing false charges against him. In his motion for a
preliminary

injunction

and

temporary

restraining

order,

the

Plaintiff complains about a lack of law materials and retaliation
by other officers. He alleged that he had a deadline to respond to
this court order and was instructed to make five copies of the
United States Marshals Service’s Form 285 and then mail the
completed forms by certified mail.

The Magistrate Judge would note that the District Judge’s
order (Docket Entry 25) directed the Clerk to send the Plaintiff a
copy of the U.S. Marshals Form 285 and for the Plaintiff to
complete it as to Defendant Biggs. There was no requirement in this
order that the Plaintiff have five copies or that he send it to the
Clerk by certified mail.
Plaintiff complained that Sergeant Wright made verbal
threats against him that he could be put in the SMU unit and told
him that “you’re are also going to get masud (sic) before the end
of it.” Plaintiff also claimed that he was written up and punished
because of false allegations by Sergeant Wright. The complaint
against Sergeant Wright involves Plaintiff’s contention that he was
placed in a housing unit with a bunk that had restrictions on the
end which could not reasonably accommodate his 6'4" body when he
was sleeping. He alleges that he was moved to another unit on
August 13, where again he was provided a bed too short and that his
complaints to Sergeant Wright were ignored.
Plaintiff alleges that since August 8th he has been
transferred to several different housing units for no apparent
reason and was moved more than five times in a span of five days.
He alleges that Sergeant Wright was responsible for his moves
because

Sergeant

Wright

falsely

claimed

that

Plaintiff

had

incompatibilities in the unit. He stated that he never claimed to
have incompatibilities with anyone. He contended that he only
complained about the inadequate bunk. He further complained that a

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follow-up visit with the medical staff concerning his injured left
hand on August 20, 2015, was not done and his wrist was not
properly treated. Plaintiff requests a preliminary injunction to
direct his immediately release, production of various documents,
access to law library, a request for production of his medical
record, and a request to add four defendants to his complaint along
with a temporary restraining order against Officer Biggs, Sergeant
Wright, and Correctional Officer Chandler (Docket Entry 28).
Officer Biggs has responded to the Plaintiff’s motion
(Docket Entry 38) and filed a declaration of Katie Stone, stating
that she is the administrative counsel for the Davidson County
Sheriff’s Office (DCSO) and has access to jail records and has
determined that the Plaintiff has not been assigned to the same
area as Defendant Biggs since July 8, 2015, or housed in the area
where Defendant was assigned since July 9, 2015. She alleges that
Defendant is presently assigned to the Intake, Booking and Turn Key
area of the Criminal Justice Center while the Plaintiff is not
presently housed at the Criminal Justice Center.
Defendant Biggs has also filed a declaration (Docket
Entry

40-1)

in

which

he

explains

that

he

did

examine

the

Plaintiff’s wrist brace and removed metal flanges of an 8" to 12"
length because it could be used as a weapon and he could not find
an order for the wrist brace in the jail records. The brace, absent
the flanges, was returned to the Plaintiff. He further states that
the Plaintiff has had no contact with him since the evening of July

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8, 2015, and they will not have contact because the Plaintiff is
now housed at the Hill Detention Center and he is not assigned to
work at the Hill Detention Center.
LEGAL DISCUSSION
The four factors that must be considered in determining
whether to issue a TRO or a permanent injunction are well known:
1.

whether the movant has a strong likelihood of
success on merits;

2.

whether the movant would suffer irreparable
injury absent a stay;

3.

whether
granting
the
stay
would
substantial harm to others; and

4.

whether the public interest would be served by
granting the stay.

cause

Employees International Union Local 1199 v. Blackwell, 467 F.3d
999, 1009 (6th Cir. 2006).
1.

The sole claim in this case is against Officer

Biggs. The affidavit of the General Administrator and Defendant
Biggs strongly indicate that the Defendant and the Plaintiff are in
separate areas at the present time. The Plaintiff has simply not
shown that he has a strong likelihood of success on the merits
against this Defendant.
2.

The Plaintiff has not established that he would

suffer irreparable injury absent this relief. The Plaintiff is no
longer in the same area as the Defendant.
3.

Granting

the

stay

would

require

the

Court

to

unnecessarily interfere in the administration of the jail and in
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determining where he should be housed. Courts are not well-adapted
to run jails.
4.

There is no showing that the public interest would

be strongly affected one way or the other by the granting of the
requested relief.
The Magistrate Judge would note that in his request for
extraordinary relief the Plaintiff appears to want to amend his
complaint. The Plaintiff has already been allowed to amend his
complaint once in order to avoid dismissal. If the Plaintiff wishes
to amend his complaint he needs to file his specific request to
amend in accordance with Rule 15 of the Federal Rules of Civil
Procedure and to file along with his motion to amend a copy of his
proposed amended complaint that is complete in itself as to all
defendants. The Court does not want to have to refer to several
documents to determine what the Plaintiff’s complaint is.
The Magistrate Judge would note that a plaintiff is not
allowed to combine unrelated violations into a single complaint.
Incidences that are separate from the original complaint would need
to be filed as new complaints and thus subject to separate analysis
of whether they are frivolous and would constitute a strike under
the Prison Litigation Reform Act. See Ward v. Thompson, 2015 WL
394819 (W.D. Mich. June 29, 2015).1

1

Presently pending is a motion to dismiss by Defendant Biggs (Docket
Entry 36). The Magistrate Judge will prepare a separate report and
recommendation on this motion.

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RECOMMENDATION
For

the

reasons

stated

above,

the

Magistrate

Judge

recommends that the motion for preliminary injunction (Docket Entry
28) be denied.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any

party

has

14

days

from

receipt

of

this

Report

and

Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTER this 1st day of December, 2015.

JOE B. BROWN
United States Magistrate Judge

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