Opinion
3:22-cv-94-KRG-KAP
10-05-2023
NIARA BURTON, a/k/a Herman Burton, Plaintiff v. JOHN E. WETZEL, et al., Defendants
REPORT AND RECOMMENDATION RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Plaintiff Burton's motion for a temporary restraining order or preliminary injunction (Motion), ECF no. 50, should be denied without hearing. The motion for extension of time to file a brief, ECF no. 51, is denied.
Report
The background to the Motion, plaintiff Burton's third such motion, is set out in the Reports and Recommendations addressing Burton's second and first motions for TRO. Since that time Burton has been transferred to S.C.I. Albion, where some of the events alleged as a basis for the Motion (but none of the events alleged as a basis for the complaint or amended complaint) allegedly took place.
The Motion suffers from the same defects described in the previous Report and Recommendation. It is a waste of judicial resources to repeat the analysis set forth at greater length there. The defects in the Motion can be summarized as: it is based on conclusory allegations by Burton that where plausible are unsupported by any other evidence (contrary to Burton's assertion, that does not show a likelihood of success because the presumption that plausible allegations are true that is applicable to complaints evaluated under Rule 12 does not apply to motions under Rule 65); it seeks relief that has no nexus to the claims or relief sought in complaint; and it violates the PLRA by its failure to narrowly tailor any proposed relief.
In short, plaintiff has filed a sprawling complaint, subsequently amended, against thirty seven employees or agents of the Department of Corrections, over claims that arise from specific past events. He cannot use that as a platform to file this Motion to have a court intervene in his ongoing day to day disputes with other employees or agents, no matter how serious. Nor can the Motion substitute for a complaint. Burton's allegations of a new sexual assault on August 4, 2023 that involve an inmate not currently listed in the custody of the Department of Corrections, and the implausible allegation that a nondefendant employee of the Department filmed it as it took place are serious, but they do not support injunctive relief. If Burton wishes to file a new complaint concerning that event the denial of the Motion does not preclude him from doing so.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).