United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski, Chief United States District Judge.
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”). 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
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
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.
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).
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).
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”) 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.”
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.
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.
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
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
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)).
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 ...