Greene v. Ballard et al

Filing 146

MEMORANDUM OPINION AND ORDER directing (1) That the petitioner's objection to the Proposed Findings and Recommendation is overruled; (2) That the magistrate judge's 137 Proposed Findings and Recommendation are adopted and incorporated in full; (3) That the plaintiff's 47 Motion for Preliminary Injunction and/or Protective Order and his 118 Motion Requesting an Order to be Moved from Mount Olive Correctional Complex if New Offer of Settlement is Refused are denied; (4) That the defendants' 34 motion to dismiss is denied without prejudice, pending a new responsive pleading by those defendants in view of the addition of fifty more defendants in the Second Amended Complaint; and (5) That this matter is again referre d to the United States Magistrate Judge for additional consideration of the plaintiff's claims for relief contained in the Second Amended Complaint, on which this matter will now proceed. Signed by Judge John T. Copenhaver, Jr. on 3/28/2019. (cc: counsel of record; any unrepresented parties; United States Magistrate Judge) (kew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MICHAEL JERMAINE GREENE,
Plaintiff,
v.

Civil Action No. 2:17-cv-02897

DAVID BALLARD, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER

Pending are a motion to dismiss (ECF No. 34), filed by
defendants Ballard, Frame, Clifford, Mitchell, and Snider, on
March 27, 2018, the plaintiff’s Motion for Preliminary
Injunction and/or Protective Order (ECF No. 47), filed June 8,
2018, and the plaintiff’s Motion Requesting Order to be Moved
from Mount Olive Correctional Complex if New Offer of Settlement
is Refused (ECF No. 118), filed November 26, 2018.
This action was previously referred to United States
Magistrate Judge Dwane L. Tinsley who, on February 25, 2019,
submitted his Proposed Findings and Recommendation (“PF&R”)
pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B).

On

March 8, 2019, plaintiff Greene filed a timely objection to the
PF&R.

Defendants have

plaintiff’s objection.

neither objected nor responded to the

Upon an objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”

Diamond v.

Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
The plaintiff objects to the magistrate judge’s
finding that, inasmuch as the plaintiff has failed to
demonstrate by a clear showing that he will likely succeed on
the merits, he is not entitled to preliminary injunctive relief.
See PF&R 4-6.

Thus, the magistrate judge recommended that the

court deny the plaintiff’s motion for preliminary injunction as
well as his Motion Requesting an Order to be Moved from Mount
Olive Correctional Complex if New Offer of Settlement is
Refused, which motion requests a move to the Northern
Correctional Facility and placement in a behavior management
program.

The magistrate construed this as an additional motion

for preliminary or permanent injunctive relief.

PF&R 4.

Accordingly, with respect to the plaintiff’s pending motions,
the magistrate judge examined in his PF&R whether the plaintiff
made a sufficient showing that he was entitled to a preliminary
injunction.

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To obtain a preliminary injunction, a movant must
demonstrate that “(1) he is likely to succeed on the merits; (2)
he is likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in his
favor; and (4) an injunction is in the public interest.”

See

Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7
(2008); The Real Truth About Obama, 575 F.3d 342 (4th Cir.
2009).

All four factors must be satisfied to “justify this

extraordinary relief.”

PF&R 6 (citing Real Truth, 575 F.3d at

347).
The magistrate judge concluded that, in liberally
construing the plaintiff’s motions, which, “appear to seek
injunctive relief in the form of a court order to release him
from segregation and transfer him to another correctional
facility,” the plaintiff has not “clearly shown” that he is
likely to succeed on the merits or suffer irreparable harm if
preliminary injunctive relief is not granted.

PF&R 6.

The

plaintiff “asserts that he can meet the criteria” for an
injunction, but “fails to make any specific request for
injunctive relief.”

PF&R 4.

Instead, plaintiff merely states

that “the court should issue an injunction holding that the
defendants, or their agents, cannot prevent the plaintiff from

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receiving clearance for the reason that they don’t ‘have a lot
to lose.’”

PF&R 4 (citing ECF No. 47 at 1).

Turning to the plaintiff’s objection, Greene simply
reiterates the allegations stated in his complaint and motions
that seek injunctive relief, and then asserts that he is thus
entitled to a preliminary injunction or a protective order.
Obj. 1.
merit.

See

Accordingly, the objection is deemed to be without
It is clear from the plaintiff’s pending motions that at

least two of the four elements of preliminary injunctive relief
have not been satisfied, namely, that plaintiff is likely to
succeed on the merits or suffer irreparable harm, as correctly
noted in the magistrate’s PF&R.
The court, accordingly, ORDERS as follows:
1. That the petitioner’s objection to the PF&R be, and hereby
is, overruled.
2. That the magistrate judge’s Proposed Findings and
Recommendation be, and hereby are, adopted and incorporated
in full.
3. That the plaintiff’s Motion for Preliminary Injunction
and/or Protective Order (ECF No. 47) and his Motion
Requesting an Order to be Moved from Mount Olive

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Correctional Complex if New Offer of Settlement is Refused
(ECF No. 118) be, and hereby are, denied.
4. That the defendants’ motion to dismiss (ECF No. 34) be, and
hereby is, denied without prejudice, pending a new
responsive pleading by those defendants in view of the
addition of fifty more defendants in the Second Amended
Complaint.
5. That this matter be, and hereby is, again referred to the
United States Magistrate Judge for additional consideration
of the plaintiff’s claims for relief contained in the
Second Amended Complaint, on which this matter will now
proceed.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record, any
unrepresented parties, and the United States Magistrate Judge.
ENTER: March 28, 2019

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