Opinion
SA-24-CV-129-OLG (HJB)
02-12-2024
JESSE DIAZ, Plaintiff, v. KYLE O'BRIEN, Defendant.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge
To the Honorable United States District Judge Orlando L. Garcia:
This Report and Recommendation concerns the "Emergency Motion" for a temporary restraining order ("TRO") filed by Plaintiff Jesse Diaz. (Docket Entry 1.) Pretrial matters have been referred to the undersigned for consideration. (Docket Entry 4.) See 28 U.S.C. § 636(b). For the reasons set out below, I recommend that the motion for TRO be DENIED.
I. Jurisdiction.
Plaintiff purports to assert a claim under 42 U.S.C. § 1983, thereby invoking the Court's federal question jurisdiction under 28 U.S.C. § 1331. (See Docket Entry l,at3.) Accordingly, the Court appears to have original jurisdiction over this matter.
II. Applicable Law.
"An injunction is an extraordinary remedy and should not issue except upon a clear showing of possible irreparable injury." Ojuma v. Barr, 501 F.Supp.3d 400,403 (N.D. Tex. 2020) (quoting Lewis v. SS. Baune, 534 F.2d 1115,1121 (5th Cir. 1976)). "An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard." Broyles v. Texas, 618 F.Supp.2d 661, 681 (S.D. Tex. 2009), aff'd, 381 Fed.Appx. 370 (5th Cir. 2010). "Even 'substantial' monetary injury is insufficient to trigger injunctive relief." Traywick v. Collection Tech., Inc., No. 3:10-CV-1783-0, 2011 WL 13238308, at *3 (N.D. Tex. May 2, 2011) (citing Morgan v. Fletcher, 518 F.2d 236, 240 (5th Cir. 1975)).
Federal courts may issue a TRO without notice to the nonmovant only if "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A). "A complaint is 'verified' if it is supported, inter alia, by an oath or by an unsworn declaration under penalty of perjury." Crider v. Foust, No. 3:22-CV-2415-D, 2023 WL 3170496, at *3 (N.D. Tex. May 1,2023) (citations omitted).
III. Analysis.
Plaintiff's pleadings are insufficient to support a TRO or other injunctive relief. He has produced no affidavit and his complaint is not verified. Moreover, while his complaint is largely unintelligible, his alleged irreparable injury appears to be the garnishment of his wages. (See Docket Entry 1, at 35.) Any improper garnishment can be remedied by an award of monetary damages; it therefore does not constitute an irreparable injury. See Traywick, 2011 WL 13238308, at *3 (rejecting pro se plaintiff's claim "that garnishing his wages, and giving approximately $600.00 per month to Defendants, constitute[d] irreparable injury"). Accordingly, Plaintiff's TRO request should be denied.
IV. Conclusion and Recommendation.
For the above reasons, I recommend that Plaintiff's Emergency Motion (Docket Entry 1) be DENIED.
V. Notice of Right to Object
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a "filing user" with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the District Court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. Absent leave of Court, objections are limited to twenty (20) pages in length. An objecting party must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the party from a de novo review by the District Court. Thomas v. Am, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335,340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to, proposed findings and conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,1428-29 (5th Cir. 1996) (en banc).