United States District Court, E.D. Louisiana
REPORT AND RECOMMENDATION
VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.
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
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). 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).
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).
following reasons, the undersigned recommends that
plaintiff's instant complaint be dismissed as malicious.
complaint, liberally construed,  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.).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. 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
Court notes that plaintiff has also filed a motion seeking
immediate injunctive relief.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).
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).
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.
therefore RECOMMENDED that plaintiffs
complaint be DISMISSED WITH PREJUDICE as
FURTHER RECOMMENDED that plaintiffs motion
for a temporary restraining order, Rec. Doc. 10, be
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 ...