Opinion
No. 7:04-CV-036-R.
April 12, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of Reference dated March 17, 2004, the District Court referred petitioner's motion for preliminary injunctive relief to the undersigned Magistrate Judge for further proceedings and recommended disposition. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Plaintiff is an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. On February 9, 2004, he filed his civil action pursuant to 42 U.S.C. § 1983. He alleges denial of medical care and failure of the defendants to protect him from assault by other inmates. The case was originally filed in the Dallas Division of the Northern District of Texas. On February 17, 2004, the case was transferred to the Wichita Falls Division. On March 15, 2004, Plaintiff filed the instant motion claiming that his life is in danger and seeking protection from gang members confined in the Allred Unit. No defendant has entered an appearance in this action. There is an allegation in the record that one defendant, Mike Knight, has notice of this lawsuit through a newspaper article.
In the instant motion, plaintiff claims that defendant Mike Knight, a guard at the Allred Unit, came to his cell visibly upset and showed plaintiff a newspaper article which indicated that plaintiff had named Knight as a defendant in this lawsuit. Smith claims that Knight said he would inform the other defendants that they are being sued, and he then asked plaintiff about racial tensions in the Allred Unit and about inmates "cutting each other up." Smith states that he construed this as a warning or a threat from defendant Knight. Smith also states that his life has been threatened by gang members in the Allred Unit.
II. PRELIMINARY INJUNCTION
Plaintiff's motion, liberally construed, seeks a preliminary injunction pursuant to Fed.R.Civ.P. 65(a). He seeks to be placed in protective custody and transferred to another prison facility. ( See Motion at 4.) The Court notes that this is the same relief which he requests in his complaint. ( See Complaint at 5 and 6, § VI.)
Rule 65(a) governs preliminary injunctions, and subparagraph (1) provides that "[n]o preliminary injunction shall issue without notice to the adverse party." Such notice is "mandatory" and the courts "have not hesitated to dissolve preliminary injunctions issued without notice or the opportunity for a hearing on disputed questions of fact and law." Phillips v. Chas. Schreiner Bank, 894 F.2d 127, 130 (5th Cir. 1990). The "notice requirement is more than a mere procedural formality . . . rule 65(b)'s stringent restrictions 'on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute.'" Id. (quoting Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439 (1974)). Rule 65(b) provides that courts may grant a temporary restraining order
without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.
In this instance, plaintiff has not provided the notice to defendants required under Rule 65(a) that he seeks a preliminary injunction. The motion for preliminary injunction contains no certificate of service as required by Fed.R.Civ.P. 5(d) or any certificate of conference required by LR 7.1(b) and (h) of this Court. The Court cannot consider the motion to be a request for a temporary restraining order because petitioner has not certified "in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required." See Fed.R.Civ.P. 65(b). Nor does plaintiff's affidavit set forth sufficiently specific facts showing that "immediate and irreparable injury" will result to him to support a temporary restraining order without notice to the adverse parties. See id. Finally, Fed.R.Civ.P. 6(d), which is applicable to motions for preliminary injunction, see Marshall Durbin Farms, Inc. v. National Farmers, 446 F.2d 353, 358 (5th Cir. 1971), requires the moving party to serve such a motion on opposing parties at least five days before any scheduled hearing.
The Court may deny a motion for preliminary injunction on procedural infirmities alone. See Lason Serv., Inc. v. Rathe, No. 3:02-CV-2110-D, unpub. op. (N.D. Tex. Oct. 11, 2003) (order denying motion for temporary restraining order and/or preliminary injunction for procedural infirmities including a failure to comply with this Court's local rules). For the foregoing reasons, the Court should deny the motion for preliminary injunction.
A review of plaintiff's complaint reflects that the relief sought in his motion for preliminary injunction is the same as the relief sought in his civil action. In effect, plaintiff wants an expedited ruling on his complaint. The Court notes that on March 17, 2004, a questionnaire was issued to plaintiff in an effort to obtain additional factual information regarding the claims set forth in his complaint. Therefore, the denial of plaintiff's motion should be without prejudice pending review of his answers to the Court's questions. However, due to the nature of the allegations, the United States District Clerk shall serve a copy of these findings, conclusions, and recommendation by mail, on the Attorney General for the State of Texas and the Warden of the James V. Allred Unit for consideration of any safety issues related to the plaintiff, Robert Earl Smith, TDCJ No. 659525.
III. RECOMMENDATION
For the foregoing reasons, this Court recommends that the District Court DENY without prejudice petitioner's motion for preliminary injunction.