Opinion
No. 3-05-CV-0578-M.
April 5, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This is a pro se prisoner civil rights action brought by Plaintiff Robert N. Smithback, a Texas prisoner, challenging certain provisions of the Prison Litigation Reform Act and a TDCJ policy that prohibits inmates from creating illustrations on outgoing correspondence. Process has been withheld pending an initial screening of the complaint. On April 4, 2005, plaintiff filed an emergency motion for a restraining order. For the reasons stated herein, the motion should be denied.
Plaintiff cannot proceed in forma pauperis because he has filed three prior civil actions while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim. See 28 U.S.C. § 1915(g). However, his complaint still is subject to screening by the court. See 28 U.S.C. § 1915A(a) ("The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a government entity or officer or employee of a government entity.").
An application for temporary restraining order is governed by the same factors as an application for preliminary injunction. See Hunt v. Bankers Trust Co., 646 F.Supp. 59, 62 n. 1 (N.D. Tex. 1986) (Sanders, J.). In order to obtain temporary injunctive relief, the movant must establish four factors: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not granted; (3) the threatened injury to the plaintiff must outweigh the threatened injury to the defendant; and (4) the granting of injunctive relief must not disserve the public interest. Harris County, Texas v. Carmax Auto Superstores, Inc., 177 F.3d 306, 312 (5th Cir. 1999), citing Cherokee Pump Equipment, Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir. 1994). Conclusory allegations are not sufficient to support a claim for injunctive relief. See Hancock v. Essential Resources, Inc., 792 F.Supp. 924, 926 (S.D.N.Y. 1992). Rather, strict proof of each element is required before a preliminary injunction may issue. See Plains Cotton Cooperative Ass'n of Lubbock, Texas v. Goodpasture Computer Services, Inc., 807 F.2d 1256, 1261 (5th Cir.), cert. denied, 108 S.Ct. 80 (1987).
Plaintiff contends there is a need for a temporary restraining order because he "fears that the Defendants may wish to retaliate against [him] for filing this civil action against them." (Plf. Mot. at 1). However, no facts are alleged to support this conclusory assertion. Accordingly, plaintiff's motion for a restraining order should be denied.