The opinion
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Vincent Brown, ) C/A No.: 5:19-cv-01539-RMG
)
Plaintiff, )
)
V. ) ORDER
)
Lt. Oscar Levels; Sgt. McColough; )
Asst. Dental A. Ridgeway; Mr. McClurry; _)
Associate Senior Warden Kendall; Captain)
Loyd; C/O Friarson; C/O Carmen Jackson; )
Captain McCullough; Mental Health Tech)
Rosa Privitt; Mental Health Tech Mojo; and )
Mental Health Ms. Fox )
)
Defendants. )
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Before the Court is the Report and Recommendation (“R & R”) of the Magistrate Judge
(Dkt. No. 77) recommending the Court deny Plaintiffs motion for temporary restraining order.
(Dkt. No. 34.) For the reasons set forth below, the Court adopts the R & R as the order of the Court
to deny Plaintiff's motion for temporary restraining order.
I. Background
Plaintiff, Vincent Brown, proceeding pro se, filed an action alleging violations of his
constitutional rights pursuant to 42 U.S.C. § 1983. The matter before the Court is Plaintiff's motion
for temporary restraining order, filed on August 30, 2019. (Dkt. No. 34.) On September 23, 2019,
Plaintiff was transferred from Lee Correctional Institute to the Broad River Correctional Institute.
(Dkt. No. 1-5 at 5.) (Dkt. No. 1-4 at 19.) Plaintiffs motion alleges that Lieutenant Levels, Sergeant
McColough, Assistant Dentist Ridgeway, and C.O. Officer McClurry retaliated against him. (Dkt.
No. 34-1 at 1.) In addition, he contends that he has not been given shower time three times per
]
week; that he is eating cold food; he is not permitted to go to the law library; and he is denied
outside recreation, mental health and medical services, and cleaning supplies. (/d.) Specifically
Plaintiff requests the following relief:
“(1)Termination or resignation of Lieutenant Levels from SCDC, (2) Temporar[ily]
restrain the named Defendants Sgt. McColough, Lieutenant Levels, and C.O. McClurry at
least 90 to 120 days and (3) Court order the Plaintiff to be mentally screen[ed] [for a]
diagnosis.” (Dkt. No. 34 at 3.)
The Magistrate Judge issued an R & R denying Plaintiff's motion for temporary
restraining order on September 25, 2019. (Dkt. No. 77.)
II. Legal Standard
A. Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court that has no presumptive
weight. The responsibility to make a final determination remains with the Court. See Mathews vy.
Weber, 423 U.S. 261, 270-71 (1976). The Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This
Court must make a de novo determination of those portions of the R & R Plaintiff specifically
objects. Fed. R. Civ. P. 72(b)(2). Where Plaintiff fails to file any specific objections, “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
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). “Moreover,
in the absence of specific objections to the R & R, the Court need not give any explanation for
adopting the recommendation.” Wilson v. S.C. Dept of Corr., No. 9:14-CV-4365-RMG, 2015 WL
1124701, at *1 (D.S.C. Mar. 12, 2015). See also Camby y. Davis, 718 F.2d 198, 200 (4th
Cir.1983). Plaintiff did not file objections in this case, and the R & R is reviewed for clear error.
B. Temporary Restraining Order
The substantive standard for granting either a temporary restraining order or a preliminary
injunction is the same. Dyke v. Staphen, No. CV 6:18-402-TMC-KFM, 2018 WL 214455], at *1
(D.S.C. Apr. 19, 2018). A preliminary injunction or a temporary restraining order is warranted
when the movant demonstrates four factors: (1) the movant’s likelihood of success on the merits,
(2) whether the movant will face irreparable harm in the absence of preliminary relief, (3) whether
the balance of equities favors preliminary relief, and (4) whether injunctive relief is in the public
interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
WI. Discussion
Upon a review of the R & R and the parties’ arguments, the Court finds the Magistrate
Judge ably addressed the issues and correctly concluded that Plaintiff's motion should be denied.
Plaintiff does not demonstrate a likelihood of success on the merits. He alleges that Lieutenant
Levels has other actions pending in Greenville, South Carolina that demonstrate an aggression and
bad temper toward inmates with mental health issues. (Dkt. No. 34 at 4.) Yet, these allegations are
not sufficient to demonstrate a likelihood of success on the merits in the instant case. In addition,
Plaintiff has not demonstrated irreparable harm. He indicates he is “repeatedly harassed,
approached by inmates and staff in a violent manner, and tone [sic] threatening to inflict harm.”
(Dkt. No. 34 at 4.) Further he alleges that he has not been properly evaluated or classified as to
his mental capacity. (/d.) Yet, these allegations are moot as to the Court’s determination of the
instant motion because Plaintiff indicates he was transferred to a different facility on September
23, 2019, three weeks after he filed the instant motion. (Dkt. No. 1-5 at 5.) (Dkt. No. 1-4 at 19.)
The Court agrees with the R & R of the Magistrate Judge that Plaintiff has failed to demonstrate
the balance of equities tip in his favor or that a temporary restraining order is within the public
interest. The primary purpose of injunctive relief is to preserve the status quo pending a resolution
on the merits. Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980). The issuing of a temporary
restraining order in this instance would change the status quo before the parties have an opportunity
to litigate this case. Plaintiff's allegations do not demonstrate exigent circumstances eixt that
require the Court to issue a temporary restraining order.
IV. Conclusion
For the foregoing reasons, the Court ADOPTS the R & R of the Magistrate Judge (Dkt.
No. 77.) as the order of the Court and DENIES Plaintiff's motion for temporary restraining order.
(Dkt. No. 34.)
AND IT IS SO ORDERED. Con Le
Richard Mark Gergel
United States District Court Judge
October isd 2019
Charleston, South Carolina .