United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on initial review of the
Complaint, (Doc. No. 1), and Plaintiff's Motion for
Temporary Restraining Order/ Preliminary Injunction, (Doc.
No. 8). He is proceeding in forma pauperis. (Doc.
se Plaintiff Raheem Taylor, an inmate at the Mecklenburg
County Jail, has filed civil rights action pursuant to 42
U.S.C. § 1983. He names as Defendants: the Mecklenburg
County Sheriff's Office (“MCSO”); Mecklenburg
County Sheriff Irwin Carmichael; Mecklenburg County Jail
Mailroom Staff Hayden; Grievance Coordinator C.Y. Petway; and
Sergeant J.W. Keese.
the Complaint liberally and accepting the allegations as
true, Plaintiff began subscribing to Prison Legal
News (“PLN”), which provides information and
news stories regarding case law development and issues
surrounding prison conditions of confinement, in June 2016.
He discovered in January 2017, that the PLN issues from
November and December 2016, and January 2017, had been
summarily rejected by the prison without any valid
penological interest and without notice of the rejection to
either Plaintiff or the publisher. Defendants have failed to
provide Plaintiff with any rational basis to support their
blanket ban on PLN, and merely state that prior issues of PLN
contained unacceptable content. They are suppressing PLN to
suppress its legal/political content which supports the
rights of incarcerated individuals and contains commentary
critical of penal institutions' practices and policies
throughout the United States. Defendants engaged in a
deliberate effort to disguise their animus towards PLN by
providing vague responses when Plaintiff asked them to
identify the specific material or subject-matter that is
incompatible with the Mecklenburg County Sheriff's Office
penological and/or rehabilitative objectives. The censorship
was due to Defendants' personal prejudice rather than any
legitimate interest. Plaintiff's inability to remedy the
censorship was exacerbated by Defendants' failure to
adopt, implement, and publish a procedural framework
providing for notice when a publication is rejected,
explanation for the specific basis upon which the publication
was found objectionable, and a reasonable opportunity to
appeal the rejection through established internal procedures.
Sheriff Carmichael, who is the chief decision-maker for MCSO,
was made aware of the circumstances surrounding the
nondelivery of PLN and failed to take any steps to remedy the
wrongdoing of MCSO staff, thereby allowing the censorship to
persist. Defendants' actions violated free speech and due
seeks declaratory judgment, injunctive relief, compensatory
and punitive damages, and any further relief the Court deems
just, equitable, and appropriate.
September 22, 2017, Plaintiff filed a letter to the Court
requesting a preliminary injunction/ temporary restraining
order to prevent Defendants from banning, censoring, or
otherwise obstructing delivery of PLN pending final
resolution of this § 1983 action. (Doc. No. 8). He
claims that he continues to be denied numerous copies of PLN,
often without notice.
PRELIMINARY INJUNCTION/ TEMPORARY RESTRAINING ORDER
preliminary injunction is an extraordinary remedy afforded
before trial at the discretion of the district court.
Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013).
It is an extraordinary remedy that is never awarded as of
right. Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 24 (2008). In each case, courts “must
balance the competing claims of injury and must consider the
effect on each party of the granting or withholding of the
requested relief.” Amoco Prod. Co. v. Village of
Gambell, 480 U.S. 531, 542 (1987). “[C]ourts of
equity should pay particular regard for the public
consequences in employing the extraordinary remedy of
injunction.” Winter, 555 U.S. at 24. To obtain
a preliminary injunction, a plaintiff must establish (1) that
he is likely to succeed on the merits; (2) that he is likely
to suffer irreparable harm in the absence of preliminary
relief; (3) that the balance of equities tips in his favor;
and (4) that an injunction is in the public interest.
Id. at 20; Di Biase v. SPX Corp., 872 F.3d
224, 229 (4th Cir. 2017).
Plaintiff's motion based on the above factors, Plaintiff
is not entitled to a temporary restraining order or a
preliminary injunction. In support of his motion, Plaintiff
states that he has been denied numerous issues of PLN, often
without notice. However, Plaintiff fails to explain how he is
being irreparably harmed during the pendency of the instant
action. Nor does he show that he is likely to prevail in this
action. Plaintiff has simply not shown that he is entitled to
a temporary restraining order or a preliminary injunction,
and his motion will therefore be denied.
INITIAL REVIEW STANDARD
“court shall dismiss [a prisoner's] case at any
time if the court determines that ... the action or appeal
... fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). A
complaint should not be dismissed for failure to state a
claim “unless ‘after accepting all well-pleaded
allegations in the plaintiff's complaint as true and
drawing all reasonable factual inferences from those facts in
the plaintiff's favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his
claim entitling him to relief.'” Veney v.
Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting
Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999)). In its frivolity review, a court must determine
whether the Complaint raises an indisputably meritless legal
theory or is founded upon clearly baseless factual
contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
pro se complaint must be construed liberally.
Haines v. Kerner, 404 U.S. 519, 520 (1972); see
also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009)
(“Liberal construction of the pleadings is particularly
appropriate where … there is a pro se complaint
raising civil rights issues.”). However, the liberal
construction requirement will not permit a district court to
ignore a clear failure to allege facts in his complaint which
set forth a claim that is cognizable under federal law.
Weller v. Dep't of Soc. Servs., 901 F.2d 387
(4th Cir. 1990). A pro se complaint must still
contain sufficient facts “to raise a right to relief
above the speculative level” and “state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the
Twombly plausibility standard applies to all federal
civil complaints including those filed under § 1983).
This “plausibility standard requires a plaintiff to
demonstrate more than a sheer possibility that a defendant
has acted unlawfully.” Francis v. Giacomelli,
588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks
omitted). He must articulate facts that, when accepted as
true, demonstrate he has stated a claim entitling him to