Opinion
C/A No. 9:21-1233-MGL-MHC
06-08-2021
Larry James Tyler, Plaintiff, v. Toney Chavis, Patricia Ray, James Hudson, Wadell Coe, and Rosena James, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner who is proceeding pro se, has filed this action against Defendants in their individual capacity, alleging a violation of his constitutional rights under 42 U.S.C § 1983. ECF No. 1. Before the Court is Plaintiff's Motion for an Injunction. ECF No. 13.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2), DSC, this matter was referred to the undersigned for pretrial handling. Because the Motion requests injunctive relief, it is dispositive, and this Report and Recommendation is entered for the district judge's consideration.
In his Motion, Plaintiff complains that he has "not received the notice from the U.S. Marshal that Defendants have been served." Id. at 1. He is seeking an injunction to require Defendant Sheriff James Hudson to "allow [him] to call the U.S. Marshal's Office in Florence, S.C. to come pick up [his] mail and receive it directly from [his] hand" and have the Marshal deliver the Court's mail directly to him. Id. He contends that Defendants are discarding the Court's mail coming to him. Id.
LEGAL DISCUSSION
The court may issue a preliminary injunction only on notice to the adverse party. Fed. R. Civ. P. 65(a)(1). It does not appear that any Defendant has been served with process yet, nor has the time for doing so run. See ECF No. 11. No Defendant has otherwise made an appearance in this case at this time. And, while Plaintiff includes a notation at the bottom of his Motion that Defendant James Hudson is a copy recipient, there is no certificate of service, such that it is not clear whether Plaintiff's Motion for Injunction has been served on Defendant Hudson.
Although Plaintiff has indicated he is seeking an injunction, the Court interprets the Motion as one for a preliminary injunction because this case is in its infancy, and Plaintiff has not achieved actual success on the merits of his claim to warrant a permanent injunction. See Amoco Prod. Co. v. Village of Gambell, Alaska, 480 U.S. 531, 546 n.12 (1987) ("The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.")
If Defendants did not receive notice of the Motion, it would more accurately be described as a motion for a temporary restraining order ("TRO"), without notice, under Federal Rule of Civil Procedure 65(b). If the Motion for Injunction is actually a Motion for TRO without notice, then Plaintiff's Motion should be denied because, among other reasons, the Motion contains no sworn affidavit, does not explain why an injunction is being requested without notice, and requests relief exceeding 14 days. See Fed. R. Civ. P. 65(b)(1)-(2); Malik v. Slight, No. 2:11-cv-01064-RBH, 2011 WL 6817750, at *2 n.4 (D.S.C. Dec. 28, 2011) (citing X v. Brierley, 457 F. Supp. 350, 351-52 (E.D. Pa. 1978) (holding that although document bore signature of prisoner and two witnesses, because statements it contained were never sworn to before a public notary or other authorized official, it was not a proper affidavit for summary judgment purposes)).
Even if the Motion has been served properly on Defendant Hudson, the undersigned recommends denying the Motion because Plaintiff has not met the other requirements for a preliminary injunction. A "preliminary injunction is an extraordinary remedy, to be granted only if the moving party clearly establishes entitlement to the relief sought." Fed. Leasing, Inc. v. Underwriters at Lloyd's, 650 F.2d 495, 499 (4th Cir. 1981). To obtain a preliminary injunction, Plaintiff must demonstrate: (1) that he is likely to succeed on the merits of his claims, (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. Winter v. Natural Resources Defense Council., Inc., 555 U.S. 7, 20 (2008).
Here, Plaintiff's request is based upon his allegation that he has not yet received notice from the U.S. Marshal that Defendants have been served. However, no Defendant has yet been served, and the deadline for doing has not passed. Moreover, notwithstanding Plaintiff's suggestion or argument that his mail is not being delivered, the Court received in the U.S. mail a copy of Plaintiff's Motion. Under these circumstances, Plaintiff has not clearly established an entitlement to the relief he seeks in his Motion.
RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Petitioner's Motion for Injunction (ECF No. 13) be DENIED.
Plaintiff is referred to the Notice Page attached hereto. June 8, 2021
Charleston, South Carolina
/s/_________
Molly H. Cherry
United States Magistrate Judge
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 Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n 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) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
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); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).