Friedman v. UNITED STATES OF AMERICA et al

Filing 75

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 68 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. All pending motions are hereby DENIED AS MOOT. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Cou rt. Because the petitioner failed to object, he waives his right to seek appellate review of this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/5/2014. (copy to counsel of record via CM/ECF; copy to Pro Se Petitioner via Cert. Mail, rrr) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHARLES D. FRIEDMAN,
Plaintiff,
v.

Civil Action No. 5:13CV62
(STAMP)

UNITED STATES OF AMERICA,
FEDERAL BUREAU OF PRISONS,
ERIC HOLDER, Attorney General,
CHARLES E. SAMUELS, JR.
Director, Federal Bureau of Prisons
and JOHN DOE, Lieutenant,
sued severally and in their official
capacities and individual capacity,
Defendants.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

On May 9, 2013, the pro se1 plaintiff, a federal prisoner
incarcerated at USP-Hazelton, filed this civil rights action under
Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
plaintiff

suffered

Specifically,

the

injuries
plaintiff

The complaint asserts that the
from

use

asserts

of

that

excessive
a

bus

force.

operations

lieutenant intentionally or negligently applied hand restraints
with deliberate indifference to the proper size and fit.

Further,

plaintiff asserts that the bus operations lieutenant acted with
1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

deliberate indifference to his complaints about the pain the hand
restraints caused. Under Local Rule of Prisoner Litigation 2, this
matter was referred to United States Magistrate Judge John S. Kaull
for preliminary review and report and recommendation.
On July 1, 2013, the plaintiff filed a combined motion for a
temporary restraining order and preliminary injunction seeking an
order from this Court prohibiting the defendants, as well as their
agents, servants, employees, and all persons in active concert and
participation

with

handcuffs

a

or

the

black

defendants,
box

on

the

from

using

plaintiff

standard
absent

sized

exigent

circumstances. On October 28, 2013, the petitioner filed a request
to submit his motion for a preliminary injunction and temporary
restraining order for decision as the defendants filed no response.
On January 28, 2014, Magistrate Judge Kaull issued a report and
recommendation,

recommending

that

this

Court

(1)

deny

the

plaintiff’s motion for a preliminary injunction and temporary
restraining order and (2) dismiss his request to submit his motion
for decision as moot.
Magistrate Judge Kaull informed the parties that if they
objected to any portion of the report and recommendation, they must
file objections within fourteen days of receiving the report and
recommendation. The plaintiff filed a motion for an enlargement of
time to file objections.
motion.

This Court granted the plaintiff’s

The plaintiff, however, failed to file any objections.

2

For the reasons stated below, the magistrate judge’s report and
recommendation is affirmed and adopted in its entirety.
II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

Because no

objections were filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”

28

U.S.C. § 636(b)(1)(A).
III.

Discussion

In The Real Truth About Obama, Inc. v. Federal Election
Commission, the United States Court of Appeals for the Fourth
Circuit set forth the equitable factors that a district court must
consider when determining whether an injunction should be issued.
575 F.3d 342, 345-346.

The four factors that the plaintiff must

establish to obtain injunctive relief under this test are:
(1) that he is likely to succeed on the merits, (2) that
he is likely to suffer irreparable harm in the absence of
preliminary relief, (3) that the balance of equities tips
in his favor, and (4) that an injunction is in the public
interest.
Id. at 346 (citing Winter v. Natural Resources Defense Council,
Inc., 129 S. Ct. 365, 374 (2008)).
The magistrate judge states that the plaintiff acknowledged
that most correctional officers accommodated him with the proper
sizing and fit of hand restraints.

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Further, the magistrate judge

stated that after a review of PACER, it appears that the plaintiff
never complained of problems with the hand restraints prior to this
action.

The magistrate judge also notes that the safe and orderly

transport of prisoners is a critical function of the Bureau of
Prisons.

Based on these findings, the magistrate judge asserts

that the plaintiff failed to establish that he is likely to succeed
on the merits.
plaintiff

failed

Further, the magistrate judge stated that the
to

establish

that

he

is

likely

to

suffer

irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, or that an injunction would
be in the public’s interest.
This Court finds no clear error in the magistrate judge’s
findings concerning the factors that the plaintiff is required to
establish to obtain injunctive relief.

Because the plaintiff is

unable to establish those factors, the plaintiff’s motion for a
temporary injunction and preliminary restraining order must be
denied.

Further, because this Court now decides the motion for a

temporary

restraining

order

and

preliminary

injunction,

the

plaintiff’s request to submit the motion to this Court for review
is dismissed as moot.
IV.

Conclusion

For the reasons set forth above, this Court finds no clear
error in the report and recommendation of the magistrate judge (ECF
No. 68), and it is therefore AFFIRMED and ADOPTED in its entirety.

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Accordingly,

all

pending

motions

are

hereby

DENIED

AS

MOOT.

Further, it is ORDERED that this civil action be DISMISSED and
STRICKEN from the active docket of this Court.
Finally, this Court finds that the magistrate judge properly
advised petitioner that failure to timely object to the report and
recommendation in this action would result in a waiver of appellate
rights.

Because the petitioner failed to object, he waives his

right to seek appellate review of this matter.

See Wright v.

Collins, 766 F.2d 841, 844-45 (4th Cir. 1985).
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
DATED:

September 5, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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