Opinion
Case No. CIV-19-581-F
11-20-2019
JESSIE FRANKLIN TRUITT, III, Plaintiff, v. CARL BEAR, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, Jessie Franklin Truitt, III, a state prisoner appearing pro se, filed civil rights complaint pursuant to 42 U.S.C. § 1983 alleging Defendant Russell Serventi sexually assaulted him while he was housed at the Joseph Harp Correctional Center (JHCC), (Compl.) [Doc. No. 1]. United States District Judge Stephen P. Friot referred the matter for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C), and the Court granted Plaintiff permission to serve the Complaint on Defendants. [Doc. No. 17]. The service deadline is December 15, 2019 and the docket does not reflect that service has been executed on any party. At issue here are Plaintiff's recently filed motions entitled "Preliminary Injunction" and "T.R.O.," [Doc. Nos. 25-26]. It is recommended that both motions be DENIED.
In fact, it appears service on Defendant Serventi has been unsuccessful. [Doc. No. 24]. --------
I. Background
As noted, Plaintiff alleges Defendant Serventi sexually assaulted him while he was housed at JHCC. See Compl. at 3. In addition to Defendant Serventi, Plaintiff names as defendants former Department of Corrections Director Joe Allbaugh and JHCC Warden Carl Bear. See id. at 2. Just before Plaintiff filed suit, he was transferred to the Lawton Correctional Facility. [Doc. No. 19]. However, in early November 2019, Plaintiff was transferred back to JHCC and placed in the Behavior Health Unit (BHU). [Doc. No. 27].
II. Analysis
Plaintiff has contemporaneously filed motions for a preliminary injunction, [Doc. No. 25], and temporary restraining order (TRO), [Doc. No. 26]. Plaintiff complains about the conditions in the JHCC BHU, specifically, the lack of law library, interference with legal drafting, grievance and sick call denials, inability to practice religion, a lack of clean clothes, showers, recreation, and soap, and threats of violence. [Doc. Nos. 25-26].
A. Lack of Notice
The Court may first deny Plaintiff's motions for lack of notice. That is, pursuant to Fed. R. Civ. P. 65(a)(1), the Court is empowered to "issue a preliminary injunction only on notice to the adverse party." As noted above, Plaintiff has not served any party and he has failed to describe any efforts he has made to provide notice to the parties. See [Doc. No. 25]. "Compliance with this notice requirement is mandatory, and the rule has constitutional as well as procedural dimensions." Beierle v. Zavares, 215 F.3d 1336, 2000 WL 757725, at *6 (10th Cir. June 12, 2000). Accordingly, "[t]his omission prevents the entry of a preliminary injunction." Folsom v. Knutson, No. CIV-13-632-D, 2013 WL 4840479, at *2 (W.D. Okla. Sept. 10, 2013); see also Beierle, 2000 WL 757725, at *6 (affirming the district court's denial of plaintiff's motion for preliminary injunction, based on a lack of notice, where plaintiff had not served his complaint and no defendant had entered an appearance in the case).
A party may obtain a TRO without notice to the adverse party, but only if "(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant[] . . . certifies in writing any efforts made to give notice and the reasons why it should not be required." Fed. R. Civ. P. 65(b)(1). Plaintiff has failed to verify his motion for TRO and did not certify any efforts made to give notice to the parties. See [Doc. No. 26]. Because of the extraordinary nature of a TRO, it may only be granted when these procedural safeguards are "scrupulously honored." 11A C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure 2d § 2952. "Even though Plaintiff is proceeding pro se, the Court may deny his motion on this procedural ground." Lay v. Oklahoma Dep't. of Corr., No. CIV-17-1224-D, 2018 WL 4610885, at *2 (W.D. Okla. Aug. 28, 2018), adopted, 2018 WL 4610083 (W.D. Okla. Sept. 25, 2018).
B. Lack of Relationship Between the Complaint and the Motions
Additionally, the Court may deny both motions because Plaintiff's requests are not related to any of the allegations set forth in his Complaint. An injunction grants intermediate relief of the same character as that which may be finally granted. See De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 220 (1945); see also Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) ("[T]he movant must establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." (internal quotation marks omitted)). Neither a preliminary injunction nor a TRO are appropriate when the movant, as here, seeks intermediate relief beyond the claims of the complaint. See Hicks v. Jones, 332 F. App'x 505, 508 (10th Cir. 2009) (affirming district court's denial of motion for preliminary injunction or TRO seeking to "prevent his transfer out of the prison's protective custody unit, which apparently was slated for closure, but his complaint alleged that defendants failed to protect him from his cellmate"); see also McMiller v. Corr. Corp. of Am., No. CIV-14-161-W, 2016 WL 1045567, at *1 (W.D. Okla. Mar. 15, 2016) (denying motions for preliminary injunction and TRO because: "The prison officials . . . conduct - refusal to provide certain prescribed medication - is not related to the events giving rise to this lawsuit.").
RECOMMENDATION
For the foregoing reasons, the Court should DENY Plaintiff's motions for preliminary injunction, [Doc. No. 25], and TRO, [Doc. No. 26].
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by December 11, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation does not terminate the District Judge's referral in this matter.
ENTERED this 20th day of November, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE