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Farabee v. Lee

United States District Court, W.D. Virginia, Roanoke Division

September 30, 2019

BRIAN FARABEE, Plaintiff,
v.
DR. JAMES A. LEE, et al., Defendants.

          MEMORANDUM OPINION

          Michael F. Urbanski, Chief United States District Judge.

         Brian Farabee, a Virginia inmate proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983, against defendants associated with the Virginia Department of Corrections (“VDOC”) and the Marion Correctional Treatment Center (“Marion”).[1] This matter is before the court on Farabee’s motions seeking preliminary injunctions (ECF Nos. 14, 24, and 27), which were referred to a United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See ECF No. 29. The Magistrate Judge filed a report and recommendation on August 30, 2018, recommending that Farabee’s motions be denied. See ECF No. 75. Farabee filed objections to the report and recommendation. See ECF No. 76. After reviewing the record, the court overrules the objections, adopts the report and recommendation, and denies Farabee’s motions for preliminary injunctions.[2]

         A district court must review de novo any part of a report and recommendation to which a party objects properly. 28 U.S.C. § 636(b)(1)(C); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The district court’s reasoning need not be elaborate or lengthy, but it must provide a specific rationale that permits meaningful appellate review. See, e.g., United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). A party must object “with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). The Fourth Circuit explained that:

To conclude otherwise would defeat the purpose of requiring objections. We would be permitting a party to appeal any issue that was before the magistrate judge, regardless of the nature and scope of objections made to the magistrate judge’s report. Either the district court would then have to review every issue in the magistrate judge’s proposed findings and recommendations or courts of appeals would be required to review issues that the district court never considered. In either case, judicial resources would be wasted and the district court’s effectiveness based on help from magistrate judges would be undermined.

Id.

         De novo review is not required “when a party makes general or conclusory objections that do not direct the court to a specific error in the magistrate judge’s proposed findings and recommendations.” Orpiano, 687 F.2d at 47. An objection that repeats arguments raised before a magistrate judge is deemed a general objection to the entire the report and recommendation, which is the same as a failure to object. Veney v. Astrue, 539 F.Supp.2d 841, 845 (W.D. Va. 2008). A district court is also not required to review any issue de novo when no party objects. See, e.g., Thomas v. Arn, 474 U.S. 140, 149 (1985); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).

         A district court reviews for clear error any part of a report and recommendation not properly objected to. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). Clear error means that a court, after “reviewing . . . the entire evidence[, ] is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); see FTC v. Ross, 743 F.3d 886, 894 (4th Cir. 2014) (noting a factual finding based on the resolution of conflicting evidence is entitled to deference under the clear error standard).

         Farabee’s motions seeking preliminary injunctive relief ask the court to: 1) prevent the defendants from treating him with Haldol and Thorazine (two antipsychotic medications); 2) prevent the defendants from forcing him to participate in the Intensive Diversionary Treatment Program (“IDTP”)[3] at Marion; and 3) order the defendants to provide him with a Common Fare (“CF”) diet or transfer him to a VDOC facility where he can receive a CF diet. The Magistrate Judge’s report determined: that Farabee had not persuaded the court that he has a likelihood of succeeding on the merits of his claims or that he faces a likelihood of irreparable harm if injunctive relief is not granted; that the balance of equities do not tip in Farabee’s favor; and that an injunction would not be in the public’s interest. Accordingly, the Magistrate Judge recommends that the court deny Farabee’s motions for preliminary injunctive relief. Farabee’s objections state that the court “should reject and overrule [the report] because it rel[ies] on patently incorrect factual findings and ignores the facts and a plethora of material evidence produced by plaintiff in this case.”

         With regard to the antipsychotic medications, Farabee argues in his objections, as he did in his motions and supporting documentation, that he has a “well-documented history” of allergies to the medications and of sexual abuse, which make the “forced drugging” of him a “substantial risk” of serious harm to him. He also points again to his advanced medical directive which indicates his lack of consent to the use of antipsychotic medications. Finally, he reargues that the medications were not used to treat his mental illness, but rather to prevent him from self-harming.

         With regard to his participation in the IDTP, Farabee argues in his objections, as he did in his amended complaint, that he was placed in the program in violation of his due process rights. Farabee claims that the Magistrate Judge erred in considering his claim as a living conditions claim, rather than a due process claim.

         With regard to receiving the CF diet, Farabee argues in his objections that the Magistrate Judge’s determination that Farabee had not alleged a substantial burden on his religious beliefs is “blatantly contradicted” by the record. He states that he is a “practicing Jewish individual, . . . he is eligible to receive a diet consistent with [his] faith, and [Marion] has not and does not provide such diet.”

         Having reviewed the report and recommendation, Farabee’s objections, and pertinent portions of the record de novo, the court will adopt the report and recommendation. Foremost, Farabee’s objections mostly consist of legal assertions and general objections which do not specifically identify an error in the report and recommendation. See, e.g., Orpiano, 687 F.2d at 47; Farmer v. McBride, 177 Fed.App’x 327, 331 (4th Cir. 2006) (noting a district court does not need to review general and conclusory objections that do not direct the court to a specific error). The court is satisfied that there is no “clear error” in the report and recommendation.

         Preliminary injunctive relief is an extraordinary remedy that courts should apply sparingly. See Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991). As a preliminary injunction temporarily affords an extraordinary remedy prior to trial that can be granted permanently after trial, the party seeking the preliminary injunction must demonstrate by a “clear showing” that: (1) he is likely to succeed on the merits at trial; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 22 (2008). A failure to establish any element is fatal to a request for such relief. Id. The party seeking relief must show that the irreparable harm he faces in the absence of relief is “neither remote nor speculative, but actual and imminent.” Direx Israel, Ltd., 952 F.2d at 812. Without a showing that the plaintiff will suffer imminent, irreparable harm, the court cannot grant preliminary injunctive relief. Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 360 (4th Cir. 1991). “The possibility that adequate compensatory or other corrective relief will be available at a later date . . . weighs heavily against a claim of irreparable harm.” Va. Chapter, Associated Gen. Contractors, Inc. v. Kreps, 444 F.Supp. 1167, 1182 (W.D. Va. 1978) (quoting Va. Petroleum Jobbers Ass’n. v. Fed. Power Comm’n, 259 F.2d 921 (D.C. Cir. 1958)).

         Because Farabee wants to change the status quo, he seeks a mandatory injunction that is “disfavored[] and warranted only in the most extraordinary circumstances.” In re Microsoft Antitrust Litig., 333 F.3d at 525. Consequently, the court must give an “even more searching” review under Winter than if Farabee was seeking to enforce the status quo. Id. Also, the court must be mindful that “in the prison context, a request for injunctive relief must always be viewed with great caution because judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.” Barnett v. Young, No. 5:18cv279, 2018 U.S. Dist. LEXIS 117088, at *6, 2018 WL 3405415, at *2 (S.D. W.Va. June 21, 2018). “It is well settled that the decision where to house ...


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