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Gilmore v. Frasier

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA
Jul 20, 2018
C/A No. 5:18-cv-00202-CMC-KDW (D.S.C. Jul. 20, 2018)

Opinion

C/A No. 5:18-cv-00202-CMC-KDW

07-20-2018

Perry Drake Gilmore, Plaintiff, v. Lieutenant Grealin Frasier; Lieutenant Jones; Joshua Silva; Antonio Gilyard; Officer Jenkins; Lt. Miller, and Bryan Stirling, Defendants.


REPORT AND RECOMMENDATION
(on Motion for Preliminary Injunction)

This is a civil action filed by a state prisoner. Under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. This case is before the undersigned magistrate judge for a report and recommendation on Plaintiff's Motion for Preliminary Injunction. ECF No. 30. I. Plaintiff's Motion

In his one-page Motion, Plaintiff asks this court to order Defendant Bryan Stirling, Director of the South Carolina Department of Corrections where Plaintiff is incarcerated, to provide Plaintiff "with a light, desk, access to law, and a cell without a shower" to permit him to litigate this case. Id. Plaintiff cites to Bounds v. Smith, 430 U.S. 817, 838 (1977) and Lewis v. Casey, 518 U.S. 343 (1996), but he makes no argument regarding the potential for success on the merits of the claims made in this case and he does not indicate that he will suffer irreparable harm should the requested injunction be denied. The most that Plaintiff says is that the humidity in his cell causes water damage to his writing materials and legal documents and requires him to "wrap it up with bedding" to prevent damage when he showers. There are no allegations that Plaintiff has been prevented from litigating this case and the record shows that he has continued to file significant legal documents such as a Motion for Partial Summary Judgment, ECF No. 43, and numerous other Motions, ECF Nos. 44, 45, 46, 54, 57, 79, and Responses and Replies, ECF Nos. 56, 66, 67, 74, since he filed his Motion for Preliminary Injunction.

Defendants respond to Plaintiff's Motion, asserting that it should be denied because 1) this court has not yet obtained personal jurisdiction over Defendant Stirling, 2) Plaintiff's allegations fail to satisfy the four-prong test of Winter v. Natural Resources Defense Council, Inc., 55 U.S. 7, 20 (2008) and has not shown an actual injury from the conditions of his confinement, and 3) Plaintiff's participation in the litigation of this case to date show he does not need the preliminary relief he seeks. ECF No. 39. Plaintiff replies. ECF No. 56. II. Discussion

Service was authorized for Defendant Stirling on July 18, 2018, ECF No. 82. Service has yet to be accomplished and he has not appeared in this case. Defendants are, therefore, correct that the court has yet to acquire personal jurisdiction over Stirling in this case. --------

It is settled that "[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Resources Defense Council, Inc., 55 U.S. 7, 20 (2008). "A preliminary injunction is an extraordinary remedy never awarded as of right." Id. at 24. In each case, courts must balance the competing claims of injury and consider the effect on each party of granting or withholding the requested relief. Id. The court must pay particular regard for the public consequences of employing the extraordinary remedy of injunction. Id.; see also The Real Truth About Obama, Inc. v. F.E.C., 607 F.3d 355 (4th Cir. 2010) (reinstating court's previous discussion of Winter's preliminary injunction standards following remand from the United States Supreme Court).

Having reviewed the Motion and Defendants' Response, it is clear that Plaintiff's allegations fail to satisfy the requirements for the issuance of a preliminary injunction in this matter. Plaintiff does not discuss the likelihood of success on the merits on his excessive-force-related claims in this case, and he has shown no injury or inability to litigate from the conditions of his confinement. There is no discussion about the equities or public interest in the requested changes in his conditions of confinement. As a result, the Winter requirements are not satisfied. Moreover, as Defendants note, the record in this case and the docket in a state case that Plaintiff is simultaneously pursuing in Lexington County Court of Common Pleas against one or more of the same Defendants, ECF No. 39-1, show that Plaintiff has not been hindered in his ability to litigate by his current conditions of confinement. Thus, no injury, much less irreparable injury, requiring corrective action by this court is shown here. III. Recommendation

Accordingly, it is recommended that the District Court deny Plaintiff's Motion for Preliminary Injunction. ECF No. 30.

The parties' attention is directed to the important notice on the following page. July 20, 2018
Florence, South Carolina

/s/

Kaymani D. West

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 2317

Florence, South Carolina 29503

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).


Summaries of

Gilmore v. Frasier

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA
Jul 20, 2018
C/A No. 5:18-cv-00202-CMC-KDW (D.S.C. Jul. 20, 2018)
Case details for

Gilmore v. Frasier

Case Details

Full title:Perry Drake Gilmore, Plaintiff, v. Lieutenant Grealin Frasier; Lieutenant…

Court:UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA

Date published: Jul 20, 2018

Citations

C/A No. 5:18-cv-00202-CMC-KDW (D.S.C. Jul. 20, 2018)