Opinion
5:23-CV-205-TES-MSH
01-18-2024
ALAN RICHARD HALL, Plaintiff, v. RICK SHEPARD, et al., Defendants.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff's motion, which the Court construes as a motion for preliminary injunction (ECF No. 13). For the following reasons, Plaintiff's motion should be denied.
In his motion, Plaintiff seeks an order compelling Defendants to return him “back to population immediately.” Id. at 3. A preliminary injunction or TRO is a drastic remedy used primarily to preserve the status quo rather than grant most or all of the substantive relief sought in the complaint. See, e.g., Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). Factors a movant must show to be entitled to a TRO include: “(1) a substantial likelihood of ultimate success on the merits; (2) the TRO is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the TRO would inflict on the non-movant; and (4) the TRO would serve the public interest.” Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (per curiam).
The standard for obtaining a TRO is the same as the standard for obtaining a preliminary injunction. See Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001) (per curiam); Windsor v. United States, 379 Fed.Appx. 912, 916-17 (11th Cir. 2010) (per curiam).
As an initial matter, Plaintiff does not address the required factors to show that he is entitled to a preliminary injunction. The facts of this matter have also not yet been sufficiently developed to properly consider the required factors. Further, the relief Plaintiff seeks is the same that he seeks in his recast complaint. Recast Compl. 6, ECF No. 5. It also appears that the relief Plaintiff seeks in his motion is in the nature of a writ of mandamus ordering state officials to take action by transferring him to general population. This Court does not have the authority to grant such relief. See Moye v. Clerk, DeKalb Cnty. Superior Ct., 474 F.2d 1275, 1276 (5th Cir. 1973) (per curiam) (holding that federal courts lack the power to issue writs compelling action by state officials in the performance of their duties). Finally, as of the date of this Recommendation, Defendants have not been served or had a meaningful opportunity to respond to Plaintiff's allegations. Fed.R.Civ.P. 65(a)(1). Defendants should be afforded an opportunity to respond to Plaintiff's allegations, and any claims for injunctive relief can be addressed as this case proceeds. Accordingly, the Court recommends denying Plaintiff's motion (ECF No. 13).
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.
CONCLUSION
For the reasons explained above, IT IS RECOMMENDED that Plaintiff's motion, construed as a motion for preliminary injunction (ECF No. 13), be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this
Recommendation, or seek an extension of time to file objections, within FOURTEEN (14) DAYS after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.