United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
W. SCHROEDER, III UNITED STATES DISTRICT JUDGE
Plaintiff Howard Mack, an inmate of the Texas Department of
Criminal Justice, Correctional Institutions Division
proceeding pro se, filed this civil rights lawsuit
under 42 U.S.C. §1983 complaining of alleged
deprivations of his constitutional rights. This Court
referred the matter to the United States Magistrate Judge
pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended
Order for the Adoption of Local Rules for the Assignment of
Duties to United States Magistrate Judges.
filed a motion for a temporary restraining order (Docket No.
6) complaining the Defendants Jason Smith and Tony Rust have
been harassing and threatening him. On January 19, 2016, Mack
states Smith and Rust verbally abused him with racial slurs
and told him he was in their world and he had to do what they
told him or he would find himself as “fish bait.”
Docket No. 6 at 2. Mack states that “every day when
[he] come[s] off the building, [Smith or Rust] put[s] him on
the fence threatening to take [him] to lock-up.”
Id. Mack contended this put his life in danger
because other prisoners and officers might think he was a
January 26, 2017, the Magistrate Judge issued a Report
(Docket No. 16) recommending Mack's motion for injunctive
relief be denied. The Magistrate Judge concluded Mack failed
to show a substantial likelihood of prevailing on the merits
of his claims or that he faced a substantial threat of
objections, Mack claims Smith and Rust have been harassing
and threatening him with racial slurs. He alleges for the
first time in his objections that Smith and Rust have been
placing his life in danger by telling gang members he is
their snitch. Mack asserts he is “stating the
prerequisites for a temporary restraining order where he will
prevail on the merits.” He argues he has met the legal
standards for the issuance of a temporary restraining order.
four elements a plaintiff must establish to secure
preliminary injunctive relief are: (1) a substantial
likelihood of success on the merits; (2) a substantial threat
of irreparable injury if the injunction is not issued; (3)
the threatened injury if the injunction is denied outweighs
any harm if the injunction is granted; and (4) the grant of
an injunction will not disserve the public interest.
Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir.
Magistrate Judge properly determined, Mack has offered
nothing beyond conclusory assertions to show a substantial
likelihood of success on the merits of his lawsuit.
Conclusory allegations are insufficient to carry the burden
of proof imposed upon persons seeking preliminary injunctive
relief. See Hunt v. Bankers Trust Co., 646 F.Supp.
59, 66 (N.D.Tex. 1986); Hancock v. Essential Resources
Inc., 792 F.Supp. 924, 926 (S.D.N.Y. 1992). Rather,
strict proof of each element is required before a preliminary
injunction or temporary restraining order may issue.
Plains Cotton Cooperative Ass'n of Lubbock, Texas v.
Goodpasture Computer Services Inc., 807 F.2d 1256, 1261
(5th Cir.), cert. denied, 108 S.Ct. 80 (1987).
Mack shown a substantial threat of irreparable injury if the
requested injunctive relief is not granted. Mack's
motion, filed on May 20, 2016, cites a threat made to him the
previous January, but does not indicate he actually suffered
any harm over that extended period of time. As the Magistrate
Judge stated, threats and verbal abuse do not amount to
irreparable injury. Powell v. Martinez, 579
F.App'x 250, 2014 U.S. App. LEXIS 16308 (5th Cir., August
25, 2014). Although he claims the officers have been telling
other prisoners he is a snitch, this issue was raised for the
first time in his objections and is not properly before the
district court. Finley v. Johnson, 243 F.3d 215, 218
n.3 (5th Cir. 2001). In any event, this contention is
conclusory and lacking in any supporting facts, and it does
not show a substantial danger of irreparable injury; Mack
does not allege any of the prisoners whom he claims received
this information are in a position to harm him, much less
that any have actually attempted to do so. Instead, he simply
states “records from Telford Unit and state court in
Bowie County will show clear signs of the incidents by gang
members on this unit against the offenders as well as
officers.” This oblique statement is not sufficient to
carry the burden of proof of showing entitlement to
preliminary injunctive relief. See Murillo v.
Musegades, 809 F.Supp. 924, 925 (S.D.Fla. 1981) (stating
that the heavy burden of proof in justifying an injunction is
wholly on the movant) (citing Hardin v. Houston Chronicle
Publishing Co., 572 F.2d 1106, 1107 (5th Cir. 1978)).
Mack's objections are without merit.
Court has conducted a careful de novo review of
those portions of the Magistrate Judge's proposed
findings and recommendations to which the Plaintiff objected.
See 28 U.S.C. §636(b)(1) (requiring a district
judge to “make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made.”) Upon
such de novo review, the Court has determined the
Report of the Magistrate Judge is correct and the
Plaintiff's objections are without merit. It is
the Plaintiffs objections are overruled and the Report of the
Magistrate Judge (Docket No. 16) is ADOPTED as the ...