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Bettis v. Orr

United States District Court, Middle District of Georgia, Valdosta Division

August 25, 2014

CALVIN ORR, Defendant.



Presently pending in this pro se prisoner action brought pursuant to 42 U.S.C. § 1983 are Plaintiff’s Motion for Injunctive Relief and Motions to Amend. (Docs. 11, 13, 15).

Injunctive Relief (Doc. 11)

Plaintiff has filed a Motion requesting a preliminary injunction. Plaintiff states that Warden Allen and Defendant Orr are trying to kill Plaintiff. Plaintiff maintains he was stabbed 28 times by another inmate on June 11, 2014 and, after he was stabbed, Defendant Orr allegedly laughed at Plaintiff. Plaintiff states that when he asked his attacker why he stabbed Plaintiff, the attacker said it was “because Warden Orr said you a snitch!” (sic). (Doc. 11).

A temporary restraining order/preliminary injunction protects a party against irreparable harm while preserving the status quo until a decision on the merits can be made. Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). In order to obtain preliminary injunctive relief, Plaintiff must prove that: 1) there is a substantial likelihood that he will prevail on the merits; 2) he will suffer irreparable injury unless the injunction is issued; 3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and 4) the injunction, if issued, would not be adverse to the public interest. Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985); Snook v. Trust Co. of Georgia Bank of Savannah, N.A., 909 F.2d 480, 483 (1990). “The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant ‘clearly carries the burden of persuasion’ as to the four prerequisites; [furthermore], ‘[t]he burden of persuasion in all of the four requirements is at all times upon the plaintiff.’” United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983) (quoting Canal Authority, 489 F.2d at 573).

Plaintiff has provided no evidence demonstrating that he is likely to prevail on the merits of this claim. The Motion contains no facts showing that Warden Allen had any involvement in the attack on Plaintiff. The only allegations against Deputy Warden Orr are that he laughed at Plaintiff after the attack, and that an inmate said Orr had called Plaintiff a snitch. Without more than these blanket allegations, there is no evidence to show that Plaintiff will likely prevail on the merits of this claim.

Plaintiff has also failed to show that he will suffer irreparable harm if injunctive relief is not issued. “Any injury is irreparable only if it cannot be undone through monetary remedies.” Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987); Cate v. Oldham, 707 F.2d 1176, 1189 (11th Cir. 1983). Further, an “irreparable injury must be neither remote nor speculative, but actual and imminent.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000). Plaintiff alleges that he was harmed, but he was given medical treatment after the attack. He has provided no evidence or allegations that he is being threatened with an actual and imminent injury. Thus, Plaintiff has not alleged irreparable harm.

As Plaintiff has failed to show that he will likely prevail on the merits or suffer irreparable injury unless the Court issues preliminary injunctive relief, the undersigned recommends that Plaintiff’s Motion for Preliminary Injunctive Relief (Doc. 11) be DENIED[1]. Pursuant to 28 U.S.C. § 636(b)(1), the parties may file written objections to the recommendation contained herein with the Honorable Hugh Lawson, United States District Judge, WITHIN FOURTEEN (14) DAYS after being served with a copy of this Recommendation.

Motions to Amend (Docs. 13, 15)

Plaintiff filed Motions to Amend on July 9, 2014 and August 8, 2014. In his July Motion to Amend, Plaintiff seeks to add claims against now-dismissed defendant Marty Allen. (Doc. 13). In addition, Plaintiff appears to attach a separate complaint alleging claims against Valdosta State Prison employees Warden Allen, Deputy Warden Calvin Orr, Unit Manager Carter, and Sergeant Staten as a result of an incident separate and distinct from the incident giving rise to the instant action. (See Docs. 13, 13-1, 13-2). In his August Motion, Plaintiff alleges claims against Deputy Warden Emmons for refusing to transfer Plaintiff and for placing Plaintiff in the incorrect prison cell, and against Chief Counselor Woods for refusing to file and process Plaintiff’s grievances. (Doc. 15).

Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure,

(1) Amending as a Matter of Course
A party may amend its pleading once as a matter of ...

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