Douty v. Rubenstein et al, No. 2:2013cv32832 - Document 30 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER having concluded that the 28 objections lack merit; adopting and incorporating the 16 Proposed Findings and Recommendation herein; denying without prejudice the plaintiff's 5 MOTION for a preliminary injunction; this case is recommitted to the magistrate judge pursuant to the terms of the previously entered standing order. Signed by Judge John T. Copenhaver, Jr. on 8/29/2014. (cc: plaintiff, pro se; counsel of record) (taq)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT CHARLESTON FRED D. DOUTY, Plaintiff, v. Civil Action No. 2:13-32832 JIM RUBENSTEIN, Commissioner, W. Va. Division of Corrections, and DAVID BALLARD, Warden, Mt. Olive Correctional Complex, and PAUL PERRY, Associate Warden of Security, Mt. Olive Correctional Complex, and RONNIE WILLIAMS, Captain, Mt. Olive Correctional Complex, and DANIEL HAHN, Lieutenant, Mt. Olive Correctional Complex, and ANDREW HUDSON, Corporal, Mt. Olive Correctional Complex, and JOSHUA HYPES, Correctional Officer, Mt. Olive Correctional Complex, and CHRIS HESS, Corporal, Mt. Olive Correctional Complex, and NICHOLAS BOYCHUCK, Correctional Officer, Mt. Olive Correctional Complex, and SERGEANT JOE WIMMER, Sergeant, Mt. Olive Correctional Complex, Defendants. MEMORANDUM OPINION AND ORDER Pending is the plaintiff s motion for a preliminary injunction, filed December 31, 2013. The operative pleading is plaintiff s amended complaint, filed February 7, 2014. This action was previously referred to Dwane L. Tinsley, United States Magistrate Judge, who has submitted his Proposed Findings and Recommendations ( PF&R ) pursuant to the provisions of 28 U.S.C. ยง 636(b)(1)(B). The magistrate judge recommends that the motion for a preliminary injunction be denied. On August 7, 2014, the PF&R was filed. 2014, plaintiff filed his objections. On August 25, Plaintiff contends that he will suffer irreparable injury if he is not granted a preliminary injunction. The objections contain the plaintiff s version of instances involving the use of excessive force at Mount Olive Correctional Center. As noted in the PF&R, plaintiff is obliged to satisfy a rigorous burden. That is so inasmuch as [a] preliminary injunction is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). Among other factors, the plaintiff must clear[ly] show that he is likely to succeed on the merits. Id. (quoting Winter, 555 U.S. at 21). 2 In this case, plaintiff has not made the required clear showing that he is likely to succeed on the merits. The defendants have not yet had the opportunity to respond to the request for extraordinary relief. This defect alone would preclude the court from granting the motion for preliminary injunction, apart from satisfaction of the standards discussed in Dewhurst and Winter inasmuch as plaintiff has not directed the court to where he has provided notice to the defendants of the relief sought. See Fed. R. Civ. P. 65 ( The court may issue a preliminary injunction only on notice to the adverse party. ); First Technology Safety Systems, Inc. v. Depinet, 11 F.3d 641, 650 (6th Cir. 1993) ( The only type of injunctive relief that a district court may issue ex parte is a temporary restraining order. ) Following a de novo review, and having concluded that the objections lack merit, it is ORDERED that the PF&R be, and it hereby is, adopted and incorporated herein. It is further ORDERED that the motion for a preliminary injunction be, and hereby is, denied without prejudice. The case is recommitted to the magistrate judge pursuant to the terms of the previously entered standing order. 3 The Clerk is directed to send a copy of this written opinion and order to counsel of record and plaintiff. ENTER: August 29, 2014 John T. Copenhaver, Jr. United States District Judge 4
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