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Eurings v. Gusman

United States District Court, E.D. Louisiana

July 3, 2018

HENRY EURINGS
v.
SHERIFF GUSMAN, ET AL.

         SECTION: “E” (1)

          REPORT AND RECOMMENDATION

          JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Henry Eurings, a state pretrial detainee, filed the instant pro se and in forma pauperis federal civil action pursuant to 42 U.S.C. § 1983. He sued Orleans Parish Sheriff Marlin Gusman, “Medical Intake, ” Warden McKnight, the Riverbend Detention Center, “Medical Staff, ” and other unidentified individuals.

         Federal law mandates that federal courts “review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).[1] Regarding such lawsuits, federal law further requires: “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint … is … malicious ….” 28 U.S.C. § 1915A(b)(1). Additionally, with respect to actions filed in forma pauperis, such as the instant lawsuit, federal law similarly provides: “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that ... the action … is … malicious ….” 28 U.S.C. § 1915(e)(2)(B)(i).

         A complaint is malicious if the plaintiff is asserting against the same or different defendants virtually identical causes of action “arising from the same series of events and alleging many of the same facts as an earlier suit.” Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988). “When declaring that a successive in forma pauperis suit is ‘malicious' the court should insure that the plaintiff obtains one bite at the litigation apple - but not more.” Pittman v. Moore, 980 F.2d 994, 995 (5th Cir. 1993).

         For the following reasons, the undersigned recommends that plaintiff's instant complaint be dismissed as malicious.

         Plaintiff's complaint, liberally construed, [2] concerns the allegedly inadequate medical care he received after he was beaten while in custody in 2016. However, as he acknowledges in his complaint, he previously filed a lawsuit based on the same underlying facts which was dismissed. Although he states that his legal papers concerning that prior lawsuit have been destroyed, it is apparent that he is referencing Eurings v. Gusman, Civ. Action No. 16-15363 “N” (3) (E.D. La.).[3]The Court's records reflect that the prior lawsuit was dismissed with prejudice on December 14, 2017, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure due to plaintiff's failure to prosecute his claims.[4] Because the instant complaint arises from the same series of events and alleges many of the same facts as those in Civ. Action No. 16-15363, it should be dismissed as malicious. See Bailey, 846 F.2d at 1021.[5]

         The Court notes that plaintiff has also filed a motion seeking immediate injunctive relief.[6]Although he designated the motion as one seeking a “temporary restraining order, ” the motion must be construed as one for a preliminary injunction because the relief he seeks would extend beyond the ten-day limit of a temporary restraining order. Neal v. Federal Bureau of Prisons, 76 Fed. App'x 543, 545 (5th Cir. 2003).

         Under the law of this Circuit, a plaintiff must make a clear showing that his case satisfies the following four criteria before he can receive a preliminary injunction: (1) a substantial likelihood exists that he will succeed on the merits of his claim; (2) a substantial threat of irreparable harm exists if the injunction is not granted; (3) the threatened injury outweighs any harm to the defendants if the injunction is granted; and (4) the injunction will not undermine the public interest. See Valley v. Rapides Parish School Board, 118 F.3d 1047, 1051 (5th Cir. 1997); see also Ingebresten v. Jackson Public School District, 88 F.3d 274, 278 (5th Cir. 1996); Doe v. Duncanville Independent School District, 994 F.2d 160, 163 (5th Cir. 1993); Holland American Insurance Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985). He must satisfy all four factors; a failure to satisfy even one of the four factors requires a denial of the preliminary injunction. See Mississippi Power & Light v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).

         Because the complaint should be dismissed for the reasons already explained, plaintiff cannot show that there is a substantial likelihood that he will succeed on the merits of his claims. Therefore, the motion should be denied.[7]

         RECOMMENDATION

         It is therefore RECOMMENDED that plaintiffs complaint be DISMISSED WITH PREJUDICE as malicious.

         It is FURTHER RECOMMENDED that plaintiffs motion for a temporary restraining order, Rec. Doc. 10, be DENIED.

         A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure ...


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