Opinion
CIVIL ACTION NO. 14-2258
12-02-2014
STEWART v. UNITED STATES, et al
U.S. DISTRICT JUDGE DRELL REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Before the court is a motion by plaintiff for injunctive relief which I interpret as a motion for temporary restraining order [Doc. # 9]. Plaintiff seeks an order requiring the defendants to protect him from injury by other inmates. Rule 65 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:
(b) A temporary restraining order may be granted 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 order for plaintiff to obtain a preliminary injunction, he must show: (1) a substantial likelihood that his cause will succeed on the merits, (2) a substantial threat of irreparable injury if the injunction is not granted, (3) that the threatened injury outweighs the threatened harm the injunction may do to the opposing party, and (4) that the court granting the injunction will not disserve the public interest. Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430 (5 Cir. 1981).
In the instant case, plaintiff has not alleged any specific facts to show that immediate and irreparable injury, loss, or damage will result to him. If the facts are true they can be addressed by separate lawsuit which would have to await a decision on the validity of any charges which petitioner claims are retaliatory (see Heck v. Humphrey). Further, petitioner has failed to comply with the requirements of FRCP 65 (b)(B) requiring reasons why notice to the adverse party should not be required.
Conclusion
For the foregoing reasons, IT IS RECOMMENDED that plaintiff's request for temporary restraining order [Doc. #9] be DENIED.
OBJECTIONS
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b), the parties have fourteen (14) calendar days from service of this Report and Recommendation to file specific, written objections with the clerk of court. . A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. No other briefs (such as supplemental objections, reply briefs etc.) may be filed. Providing a courtesy copy of the objection to the magistrate judge is neither required nor encouraged. Timely objections will be considered by the district judge before making a final ruling.
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) CALENDAR DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT UPON GROUNDS OF PLAIN
ERROR, FROM ATTACKING ON APPEAL THE UN-OBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.
THUS DONE AND SIGNED in chambers, in Alexandria, Louisiana, on this 2 day of December, 2014.
/s/_________
JAMES D. KIRK
UNITED STATES MAGISTRATE JUDGE