United States District Court, S.D. Mississippi, Southern Division
ORDER DENYING MOTIONS FOR TEMPORARY RESTRAINING
H. WALKER, UNITED STATES MAGISTRATE JUDGE
the Court are several motions for temporary restraining order
(TRO) and/or preliminary injunction filed by Plaintiff
Demario Dontez Walker. Doc.     .
Plaintiff filed the first two motions for TRO/Preliminary
Injunction while incarcerated at South Mississippi
Correctional Institution (SMCI). Doc.  & . On or
about September 7, 2017, Plaintiff was transferred to Central
Mississippi Correctional Facility (CMCF). Doc. .
Plaintiff filed the other three motions for TRO/Preliminary
Injunction while incarcerated at CMCF. Subsequent to these
motions being filed, the Court conducted a screening hearing
on November 9, 2017. At the screening hearing, Plaintiff
admitted that the TRO aspect of his case is moot at this time
because he has been transferred to CMCF.
purpose of a temporary restraining order (TRO) or preliminary
injunction is to protect against irreparable injury and
preserve the status quo until the court renders a
meaningful decision on the merits. Schiavo ex rel.
Schindler v. Schiavo, 403 F.3d 1223, 1231 (11th Cir.
2005) (citing Canal Authority of State of Florida v.
Callaway, 489 F.2d 567, 572 (5th Cir. 1974)). To obtain
a preliminary injunction, plaintiff must show the following:
(1) a substantial likelihood that plaintiff will prevail on
(2) a substantial threat that irreparable injury will result
if the injunction is not granted;
(3) that the threatened injury outweighs the threatened harm
to defendant; and
(4) that granting the preliminary injunction will not
disserve the public interest.
Mississippi Power & Light Co. v. United Gas Pipe Line
Co., 760 F.2d 618, 621 (5th Cir. 1985).
bears the burden of persuasion on all four elements.”
Commonwealth Life Ins. Co. v. Neal, 669 F.2d 300,
303 (5th Cir. 1982). In considering these prerequisites the
court must bear in mind that a preliminary injunction is an
extraordinary and drastic remedy which should not be granted
unless the movant clearly carries the burden of persuasion.
Canal Authority, 489 F.2d at 573. To obtain a
temporary restraining order, one of the requirements is that
the party seeking the TRO show that “immediate and
irreparable injury, loss, or damage will result” to the
party seeking the TRO. Fed.R.Civ.P. Rule 65(b).
first two motions, Plaintiff asserts that he has been
physically and sexually assaulted by inmate gang members for
the profit and benefit of gang leaders and MDOC staff. He
further asserts that MDOC staff have manipulated his
classification status, written “bogus” Rule
Violation Reports (RVR), denied him employment and
educational opportunities, subjected him to repeated and
unjustified searches, destroyed his property and legal
material, and placed “bogus” red tags on inmates.
He further complains that he has been placed in isolation,
with poor conditions of confinement; he is constantly being
targeted for property and strip searches; the food is cold;
and he is being retaliated against solely because he filed
the instant lawsuit.
being moved to CMCF, Plaintiff filed three additional motions
for TRO/Preliminary Injunction. In the first motion, filed on
September 18, 2017 (but signed September 11, 2017), Plaintiff
reports that he was sexually assaulted by his cell mate on
September 7, 2017. Doc. . Later that same day, he was
transferred from SMCI to CMCF. Plaintiff complains that he
has been moved several times within SMCI prior to his
transfer to CMCF. He requests an immediate transfer to
Marshall County Correctional Facility. On September 18, 2017,
Plaintiff filed another motion for TRO/Preliminary
Injunction. Doc. . In this motion, he continues to
allege that he is the subject of a campaign of retaliation.
Plaintiff does not make any new factual allegations in this
motion. He simply repeats claims of retaliation against him
in the form of undesirable housing assignments and false
disciplinary proceedings. In the final motion, filed on
October 10, 2017, Plaintiff asks the Court to prohibit MDOC
staff from employing any type of housing, disciplinary, or
classification procedures against him. Doc. .
initial matter, to the extent Plaintiff seeks injunctive
relief concerning conditions at SMCI, the Plaintiff's
motions are moot because he has been transferred to a
different facility. See Edwards v. Johnson, 209 F.3d
772, 776 (5th Cir. 2000). In fact, at the screening hearing,
Plaintiff conceded the mootness of the TRO aspect of his
case. The sexual and physical assaults alleged by Plaintiff
in his complaint and amended complaint occurred at SMCI and
involved SMCI inmates and/or SMCI staff. In all of the TRO
motions, Plaintiff identifies only two specific
sexual/physical assaults. He submitted an affidavit that
Correctional Officer Jamario Clark sexually assaulted him on
several occasions. Doc.  at 1. These alleged acts
occurred at SMCI. Plaintiff is no longer housed at SMCI;
therefore, the need for injunctive relief is now moot.
Plaintiff has been denied repeated efforts to add Jamario
Clark as a defendant. See Doc.  at 8-9. The
Court will not revisit that issue, which has been discussed
at length in a previous order. Plaintiff has been advised
that if he wishes to pursue claims against Jamario Clark,
then he must file a new lawsuit. The second specific assault
alleged by Plaintiff also occurred at SMCI. He alleges that
on September 7, 2017, he was beaten and sexually assaulted at
knife point by a new cellmate (Carlos Moody). There is no
indication that Plaintiff is under any ongoing threat from
inmate Moody. In fact, Plaintiff was removed from SMCI
immediately after the assault and transferred to CMCF,
presumably as a protective measure.
to the merits of his other claims, Plaintiff has no liberty
interest in his classification status; therefore, to the
extent he complains about changes in his classification
status, the motions are denied. Harper v. Showers,
174 F.3d 716, 719; Neals v. Norwood, 59 F.3d 530,
533 (5th Cir. 1995). By the same token, the consequent loss
of privileges resulting from a change in classification
status do not serve as grounds for granting a TRO or
preliminary injunction, e.g. loss of employment and
educational opportunities. See Madison v. Parker,
104 F.3d 765, 768 (5th Cir. 1997); Bulger v.
United States, 65 F.3d 48, 50 (5th Cir.
1995); McGruder v. Phelps, 608 F.2d 1023, 1026
(5th Cir. 1979). Also without constitutional merit
is Plaintiff's assertion that he has been placed in
administrative segregation as punishment for relatively brief
periods of time. See Sandin v. Conner, 515 U.S. 472,
486 (1995); Harper, 174 F.3d at 719. Moreover,
Plaintiff is no longer housed in the isolation unit at SMCI;
therefore, the conditions of confinement claim is moot.
Plaintiff's complaint regarding false RVRs fails to state
a basis for granting a TRO/Preliminary Injunction. See
Superintendent, Massachusetts Corr. Inst. v. Hill, 472
U.S. 445, 455 (1985); Reeves v. Pettcox, 19 F.3d
1060, 1062 (5th Cir. 1994); Smith v.
Rabelais, 659 F.2d 539, 545 (5th Cir. 1981). In a
previous order, the Court already addressed this issue in
some detail. See Doc. . For the reasons stated
in that order, the TRO/Preliminary Injunction is denied with
respect to RVRs. To the extent Plaintiff seeks a
TRO/Preliminary Injunction regarding his housing assignment
or place of incarceration, this claim has no constitutional
merit. An inmate has no constitutional right to be housed in
a facility of his choosing. See Yates v. Stalder,
217 F.3d 332, 334 (5th Cir. 2000); Tighe v. Wall,
100 F.3d 41, 42 (5th Cir. 1996).
asserts that after transfer to CMCF, his legal files were
left at SMCI. The location of Plaintiff's legal files is
the subject of two other pending motions and therefore will
not be addressed in this order. See Doc.  &
. Counsel for Defendants has been instructed to
investigate and report to the Court regarding the status of
Plaintiff's legal files. Plaintiff further contends that
after arriving at CMCF he was not given a spoon, soap,
toothpaste, toothbrush, tissue or razor and only one pair of
socks. He asserts he received nothing to drink except one
carton of milk at breakfast since arriving at CMCF. Within
four days of arriving at CMCF, Plaintiff executed this
particular motion complaining the conditions of confinement
there. Doc. . Plaintiff's conditions of confinement
claim at CMCF has nothing to do with the claims in ...