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Banks v. Davis

United States District Court, Fifth Circuit

August 8, 2013

JEROME BANKS, #36499, Plaintiff,
HUBERT DAVIS, et al., Defendants.


MICHAEL T. PARKER, Magistrate Judge.

THIS MATTER is before the Court on Plaintiff's motion for emergency administrative assistance [22]. Plaintiff seeks dismissal of a rules violation report ("RVR") and transfer to another facility. Having considered the motion, evidence in the record, and applicable law, the undersigned recommends that the Plaintiff's motion should be DENIED.


Plaintiff Jerome Banks, proceeding pro se, filed his original complaint [1] pursuant 42 U.S.C. § 1983 on January 31, 2013, against the following Defendants: Hubert Davis, Ulysses Lewis, Obadiah Polk, and Brenda Sims. The Plaintiff alleges multiple violations were committed by the Defendants including but not limited to denial of due process (refusal of inmate's second drug screen request after an initial positive result) and cruel and unusual punishment (impeding Plaintiff's ability to transfer to a facility closer to home and sexual harassment).


On May 28, 2013, Plaintiff filed a motion for emergency administrative assistance [22]. In his motion, Plaintiff seeks an order expunging certain RVR's from his record and allowing him to transfer away from South Mississippi Correctional Institute ("SMCI"). Plaintiff claims his right to due process was violated when Defendant Sims issued two allegedly false rule violation reports: the first being for disorderly conduct and another for a failed urine drug test. Plaintiff contends that Defendant Sims issued the reports to prevent him from enjoying visitation privileges and/or from transferring closer to home. Plaintiff fears that Defendant Sims will issue a third RVR, which would cause Plaintiff to be transferred to an area with more stringent conditions. Plaintiff further speculates that if he is not transferred to another correctional facility Defendant Sims might label Plaintiff a "snitch" so that gang members will subject him to physical violence. Plaintiff alleges that without a transfer he will continue to be subjected to cruel and unusual punishment.[1]

Essentially, Plaintiff seeks preliminary injunctive relief. A party requesting a preliminary injunction must prove each of the following elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) the threatened injury must outweigh any damage that the injunction will cause to the adverse party; and (4) the injunction must not have an adverse effect on the public interest. See Women's Med. Ctr. of Northwest Houston v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001); Bluefield Water Ass'n, Inc. v. City of Starkville, Miss., 577 F.3d 250, 252-253 (5th Cir. 2009). The Fifth Circuit has deemed the first element to be sine qua non, meaning there is no need to proceed to the other elements if a substantial likelihood of success on merits cannot be proven. See Walgreeen Co. v. Hood, 275 F.3d 475, 477 (5th Cir. 2001) (affirmed denial of preliminary injunction on the sole basis that there was no substantial basis that the plaintiff would prevail on merits) (emphasis added); see also La Union Del Pueblo Entero v. FEMA, 608 F.3d 217, 225 (5th Cir. 2010) (issuance of preliminary injunction was erroneous because a substantial likelihood of success was not shown, no analysis of the subsequent elements was needed). A preliminary injunction "is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion" on each of the four elements of the analysis. White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989).2

There is little evidence in this matter that would support the lofty burden necessary to issue a preliminary injunction. Based solely on the pleadings, Plaintiff has failed to provide a convincing argument that he would have a substantial likelihood of success on the merits of his case. Plaintiff has not adequately shown that the privileges he lost qualify as such "atypical or significant hardship[s]" as to constitute due process violations. See Sanding v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995). Plaintiff's classification, which determines his ability to transfer or enjoy privileges, has not been negatively impacted by the two allegedly erroneous RVRs as argued. (Dkt [25-3]). Plaintiff was initially classified as a "medium" custody inmate and remains so to this day. Plaintiff is no longer subject to the restrictions resulting from the second RVR, as it expired on June 30, 2013, rendering an injunction moot. Further, the record indicates that Defendant Deputy Warden Hubert Davis found Plaintiff's ARP grievance concerning Sims to be without merit after conducting an internal investigation into the matter.[3] (Dkt. [25-1] at 1-14).

Additionally, it is speculative that the Plaintiff will receive a third unwarranted RVR, [4] and be transferred to a more stringent area within SMCI. A "threatened injury must be certainly impending to constitute injury in fact, " and "[a]llegations of possible future injury" are not sufficient. Whitmore v. Arkansas, 495 U.S., 149, 158, 110 S.Ct. 1717 (internal quotations omitted). Regardless, inmates do not have a constitutional right to a certain classification, housing, prison, job or program. See Meacham v. Fano, 4427 U.S. 215 (1976). Accordingly, Plaintiff is unable to prove a substantial likelihood of success on his due process claims. Further, Plaintiff is unable to show that he faces a substantial threat of irreparable injury if an injunction is not granted; that the injury he potentially faces outweighs any harm caused by an injunction; and that an injunction, if granted, would not have an adverse effect on the public interest. Therefore, Plaintiff has failed to meet his burden for preliminary injunctive relief.[5]


Based on the foregoing analysis, the undersigned recommends that the Plaintiff's Motion for Emergency Administrative Assistance [22] be denied.


In accordance with the rules and 28 U.S.C. § 636(b)(1), any party within fourteen days after being served a copy of this recommendation, may serve and file written objections to the recommendation, with a copy to the judge, the magistrate judge and the opposing party. The District Judge at the time may accept, reject or modify in whole or part, the recommendations of the Magistrate Judge, or may receive further evidence or recommit the matter to this court with instructions. The parties are hereby notified that failure to file written objections to the proposed findings, conclusions, and recommendations contained within this report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the proposed factual findings and legal conclusions accepted by the district court to which the party has not objected. Starns v. Andrews, 524 F.3d 612, 617 (5th Cir. 2008) (citing Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)).

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