Opinion
CIVIL ACTION 00-0870-CB-C
October 12, 2000.
REPORT AND RECOMMENDATION
Plaintiff, an Alabama prison inmate proceeding pro se, filed a handwritten complaint (Doc. 1) together with a Motion to Proceed Without Prepayment of Fees (Doc. 2). This action was referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4), and is now before the undersigned on Plaintiff's "Application for Temporary Restraining Order to Stop Constitutional Violations That Are Denying Petitioner Effective Access to the Courts and Covering Up Illegal Drug Trade at Holman Prison" (Doc. 1) ("motion"). For the reasons stated below, it is recommended that Plaintiff's motion (Doc. 1) be denied.
I. Nature of Proceedings.
Plaintiff's motion and complaint are contained in one pleading (Doc. 1), which does not identify the basis of the Court's jurisdiction. Moreover, this pleading is not sworn before a notary or under penalty or perjury.
However, by separate order Plaintiff is being required to file an amended complaint on this Court's § 1983 complaint form because he did not use a form for pleading the present complaint. See Local Rule 83.9(d)(1) (requiring pro se litigants utilize this Court's forms).
Plaintiff's motion contains a lengthy description of factual background information which is not focused until the ad damnum clause where Plaintiff states that he "seeks to address only those issues that must be addressed for petitioner to prepare and file a 1983 action. Four of the issues were mentioned Mr. Curenton's letter of July 17 and all five are covered more fully in the proposed order attached hereto, i.e. denial of legal visits from volunteer paralegal Wills, denial of access to telephone, denial of access to law books, prolonged detention in punitive segration and state prosecutor interfering with petitioner efforts to be represented by competent legal counsel [sic]." Because Plaintiff did not explicitly state what he wants the Court to do for him, the Court construes his allegations to be a request for legal visits with paralegal Wills, for access to the telephone and law books, for release from punitive segregation, and to enjoin an unidentified state prosecutor from interfering with his efforts to obtain competent counsel in order that he may file a § 1983 action. Plaintiff, however, has not specifically identified any harm that he will suffer if he does not file a § 1983 action.
Plaintiff alleges that there is a scheme to obstruct justice by denying him access to the courts so he cannot show that FBI Director Louis Freeh, then an Assistant United States Attorney, and Senator Jeff Sessions, then Alabama's Attorney General, knowingly used FBI-generated, fabricated evidence and the criminal justice system to orchestrate his murder (execution) to elevate themselves to the political positions that they now enjoy. Plaintiff asserts that to coverup this conspiracy, prosecutor Steward entered into a scheme in 1996 by giving Charlie Jones, Holman's warden, the task of denying Plaintiff access to the courts for a sufficient period of time for Sessions and Freeh to use the Alabama criminal justice system to murder Plaintiff through his execution. In support of these assertions, Plaintiff quotes from a book written by John Kelly, Tainting Evidence, to-wit: "[P]lacing Roy Moody on death row with no valid evidence. Moody was wrongly convicted of the bombing of Judge Robert Vance in Alabama and is to be executed unless Freeh comes clean." Plaintiff offers an expansive range of allegations to lend additional support to his contention of a conspiracy. These allegations include the conditions to which he has allegedly been subjected on death row, which allegedly furthered the conspiracy.
No order was attached to the motion.
The undersigned observes that Plaintiff was able to file this action and did use the Court's form for a motion to proceed without prepayment of fees. Plaintiff's reasoning behind his action is, therefore, somewhat perplexing.
II. Discussion.
Rule 65(b) of the Federal Rules of Civil Procedure provides: "A temporary restraining order may be granted . . . only if (1) it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss, or damage will result to applicant. . . ." Plaintiff's motion (Doc. 1) is not a verified complaint or a sworn affidavit, nor is there a sworn affidavit attached to the motion. Therefore, Plaintiff's motion does not comply with requirements of Fed.R.Civ.P. 65(b), and is due to be denied for this sole reason.
Notwithstanding Plaintiff's failure on this critical point, the Court will address substantively Plaintiff's motion. In order for Plaintiff to prevail on a request for a temporary restraining order, he must show:
(1) a substantial likelihood that he will ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) that the injunction, if issued, would not be adverse to public interest. "The preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant `clearly carries the burden of persuasion' as to the four prerequisites."Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985). It is mandatory that the movant convince the court that all four factors are satisfied. United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir. 1983) (finding that a preliminary injunction was properly denied where movant failed to established one factor because movant bore burden of persuasion on each of the four factors); United States v. Lambert, 695 F.2d 536, 540 (11th Cir. 1983) (same).
Injunctive relief will not issue unless the complained of conduct is imminent and no other relief or compensation is available. Cunningham v. Adams, 808 F.2d 815, 821 (11th Cir. 1987); Sullivan v. Division of Elections, 718 F.2d 363, 365 (11th Cir. 1983). Furthermore, a temporary restraining order or a preliminary injunction is a drastic remedy used primarily for maintaining the status quo of the parties. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981); Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983);Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982).
In the present action, Plaintiff has not identified an injury that he will suffer that is imminent and irreparable. It is, however, Plaintiff's burden to persuade the Court that he will suffer an injury that is irreparable and imminent unless injunctive relief issues at this time. Moreover, Plaintiff's allegations are not of the nature to provide the basis for the Court's intervention with extraordinary and drastic relief in the form of an injunction at this time. Therefore, the undersigned finds that Plaintiff has failed to bear his burden of persuasion on the element that he will suffer an irreparable injury unless injunctive relief issues. Because Plaintiff has failed to meet his burden on the element that he will sustain an irreparable injury unless injunctive relief issues, the other elements for injunctive relief will not be discussed. See Jefferson County, 702 F.2d at 1519 (finding that a preliminary injunction was properly denied where movant failed to meet the burden of persuasion on one factor because movant bore burden of persuasion on each of the four factors).
III. Conclusion.
Based upon the foregoing reasons, it is recommended that Plaintiff's motion for a temporary restraining order be denied.