Opinion
2:23-cv-10951
09-07-2023
KEVIN LAVON GILES, Plaintiff, v. JONATHAN HEMINGWAY, HOUSE, TOFUIL, and N. CLINGERMAN, Defendants.
Jonathan J.C. Grey District Judge
REPORT AND RECOMMENDATION TO DENY WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION AND A TEMPORARY RESTRAINING ORDER (ECF No. 13)
Upon review of the parties' papers, the undersigned deems this matter appropriate for decision without oral argument. See Fed.R.Civ.P. 78(b); E.D. Mich. LR 7.1(f)(1).
KIMBERLY G. ALTMAN UNITED STATES MAGISTRATE JUDGE
I. Introduction
This is a prisoner civil rights case. Plaintiff Kevin Giles (Giles), proceeding pro se and in forma pauperis, filed a complaint naming Warden Jonathan Hemingway, Officer House, Officer Tofuil, and N. Clingerman as defendants. (ECF No. 1). He asserts claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) for violations of his Eighth and Fourteenth Amendment rights while housed at the federal correctional institution in Milan, Michigan as a pretrial detainee. (Id.; ECF No. 14). Under 28 U.S.C. § 636(b)(1), all pretrial matters have been referred to the undersigned. (ECF No. 16).
Before the Court is Giles' motion for a temporary restraining order (TRO) and a preliminary injunction. (ECF No. 13). He says that he is not being properly treated for his diabetes or its effects on his eyesight, which is worsening. For the reasons set forth below, the undersigned RECOMMENDS that the motion be DENIED WITHOUT PREJUDICE.
Motions for preliminary injunctions and temporary restraining orders are dispositive, so the undersigned must proceed by Report and Recommendation under 28 U.S.C. § 636(b)(1)(B). See Cook v. St. John Hosp. & Med. Ctr., No. 1010016, 2010 WL 4137524, at *1 n.1 (E.D. Mich. Aug. 3, 2010), report and recommendation adopted, 2010 WL 4341192 (E.D. Mich. Oct. 27, 2010).
II. Legal Standard
Under Federal Rule of Civil Procedure 65(a)(1), “[t]he court may issue a preliminary injunction only on notice to the adverse party.” For a TRO, “[t]he court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: “(A) specific facts in an affidavit or 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” and “(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” Fed.R.Civ.P. 65(b)(1).
III. Application
As noted in the Court's August 28, 2023 order requiring the U.S. Marshals Service to Make Reasonable Efforts to Locate and Serve Defendants, it does not appear that defendants have been properly served yet. (ECF No. 19). The docket also does not reflect that Giles gave defendants notice of his request for a preliminary injunction. Further, Giles did not certify in writing whether he tried to give defendants notice of his request for a TRO or why notice of his request should not be required.
Because Giles did not follow the requirements of Rule 65, the extraordinary relief of a preliminary injunction or a TRO is unwarranted. See Simmons v. City of Southfield, No. 19-11726, 2020 WL 1868774, at *6 (E.D. Mich. Jan. 27, 2020), report and recommendation adopted, 2020 WL 1866096 (E.D. Mich. Apr. 14, 2020) (finding that a plaintiff's “motions [for a preliminary injunction and TRO] are improper because she did not certify attempts at service or explain why notice of the motion should be dispensed with.”). Therefore, Giles' motion should be denied without prejudice.
IV. Conclusion
For the reasons stated above, the undersigned RECOMMENDS that Giles' motion for a TRO and a preliminary injunction, (ECF No. 13), be DENIED WITHOUT PREJUDICE.
NOTICE TO PARTIES REGARDING OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation. Any objections must be filed within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 144 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Under Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed.R.Civ.P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the court determines that any objections are without merit, it may rule without awaiting the response.