Kearey v. Collier et al

Filing 47

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 15 . The Court DENIES 4 Plaintiff's Motion for Temporary Restraining Order and preliminary injunction. (Signed by Judge Hilda G Tagle) Parties notified.(scavazos, 1)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MARK JAMAL KEAREY,
Plaintiff,
VS.
BRYAN COLLIER, et al,
Defendants.

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February 12, 2018
David J. Bradley, Clerk

CIVIL NO. 2:17-CV-00080

ORDER
The Court is in receipt of pro se and in forma pauperis Plaintiff’s February
27, 2017, motion for temporary restraining order (“TRO”) and preliminary
injunction. Dkt. No. 4. In her June 7, 2017, Memorandum and Recommendation
(“M&R”), the Magistrate Judge to whom this case was referred concluded that
Plaintiff has (1) not suffered any irreparable injury, (2) failed to show at this early
state of the litigation that Plaintiff’s interest either in gaining access to certain
eastern religious materials or having unsupervised moving meditations with his
study group outweighs the interest of the prison in providing reasonable restrictions
or limitations, and (3) not shown that it would serve the public’s interest for the
Court to grant preliminary injunctive relief at this time without a full opportunity
for the facts to be developed beyond Plaintiff’s allegations. Dkt. No. 15 at 4–5.
On June 19, 2017, Plaintiff filed objections to the M&R. Dkt. No. 17. The
Court reviews objected-to portions of a Magistrate Judge’s proposed findings and
recommendations de novo. 28 U.S.C. § 636(b)(1). First, Plaintiff argues that he has
suffered and continues to suffer an irreparable injury because he (1) cannot practice
tai chi in his cell, (2) can practice yoga only in an “extremely limited capacity” in his
cell, and (3) cannot adequately study his religion without texts and videos he alleges
were denied to him. Id. at 5–6 (Plaintiff lists these objections under the headings
“Objection (1)” and “Objection (2).”). Second, Plaintiff argues that he “never
suggested that he should be unsupervised.” Id. at 7 (Plaintiff lists this objection

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under the heading “Objection (3).”). Plaintiff claims that “[t]his prison say that we
need volunteer dispite security already be present.” Id. at 7 (mistakes in original).
The Court OVERRULES Plaintiff’s objections to the M&R’s conclusion that
Plaintiff has not suffered irreparable injury. The facts are not developed enough for
the Court to conclude otherwise at this time. The Court further OVERRULES
Plaintiff’s objection to the M&R’s finding that Plaintiff requested unsupervised
moving meditations with his study group. Plaintiff’s motion for TRO and
preliminary injunction alleges that Plaintiff was told he “need[s] a volunteer” to
lead his study group in the practice of moving meditations. Dkt. No. 4 at 8. Thus,
while a security guard may observe the meditations, as Plaintiff alleges, Plaintiff is
expressing an interest in unsupervised meditations to the extent that such
meditations are not led by a volunteer.
After independently reviewing the record and considering the applicable law,
the Court adopts the proposed M&R in its entirety. Dkt. No. 15. The Court hereby
DENIES Plaintiff’s motion for TRO and preliminary injunction. Dkt. No. 4.
SIGNED this 12th day of February, 2018.
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Hilda Tagle
Senior United States District Judge

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