Wright v. Allen et al (INMATE1)

Filing 7

REPORT AND RECOMMENDATIONS that 1 MOTION for Preliminary Injunction filed by Richard Wayne Wright, Sr. be denied; Objections to R&R due by 10/12/2006. Signed by Judge Charles S. Coody on 9/28/2006. (cc, )

Wright v. Allen et al (INMATE1)

Doc. 7

Case 2:06-cv-00863-WKW-CSC

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Filed 09/28/2006

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IN THE DISTRICT COURT OF THE UNITED STATES FO R THE MIDDLE DISTRICT OF ALABAMA N O RTH ER N DIVISION R IC H A R D WAYNE WRIGHT, SR., #187140, Plaintiff, v. ) ) ) ) ) ) ) ) ) ) )

C IV IL ACTION NO. 2:06-CV-863-WKW [WO]

R IC H A R D ALLEN, et al., Defendants.

R EC O M M E N D A TIO N OF THE MAGISTRATE JUDGE This is a 42 U.S.C. § 1983 action in which Richard Wayne Wright, Sr. ["Wright"], a state inmate, presents a myriad of disjointed claims against numerous defendants with respect to actions which have occurred since March of 2005. In his complaint, Wright requests issuance of an injunction, Plaintiff's Complaint at 4, which the court construes as a motion a m otio n for preliminary injunction under Rule 65, Federal Rules of Civil Procedure. Upon consideration of the motion for preliminary injunction, the court concludes that this motion is due to be denied. D IS C U S S I O N T he decision to grant or deny a preliminary injunction "is within the sound discretion of the district court . . ." Palmer v. Braun, 287 F.3d 1325, 1329 (11 th Cir. 2002). The four prerequisite s which Wright must demonstrate to warrant issuance of a preliminary injunction are: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury without the injunction; (3) that the harm to Wright outweighs the harm to the non-

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Case 2:06-cv-00863-WKW-CSC

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m ovin g parties; and (4) that an injunction would be in the interest of the public. Palmer, 287 F.3d at 1329; Cate v. Oldham, 707 F.2d 1176 (11 th Cir. 1983); Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 697 F.2d 1352 (11 th Cir. 1983). "[A] preliminary injunction is an

e x tra ordinary and drastic remedy not to be granted unless the movant clearly established the burd en of persuasion" as to each of the four prerequisites. See McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998) (internal citations and quotations omitted); see also Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir. 1975) (grant of preliminary injunction "is the exception rather than the rule," and movant must clearly carry the burden of persuasion). The moving party's failure to demonstrate a "substantial likelihood of success on the merits" may defeat the party's claim, regardless of the party's ability to establish any of the other elements. C hurc h v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994); see also Siegel v. Lepore, 234 F.3d 1163, 1176 (11 th Cir. 2000) (noting that "the absence of a substantial likelihood of irrep arable injury would, standing alone, make preliminary injunctive relief improper"). W righ t fails to establish a substantial likelihood of success on the merits or that he will su ffer irreparable harm absent issuance of a preliminary injunction. He also fails to

demonstrate that upon balancing the equities of the parties issuance of an injunction would be in the public interest. The pleadings before the court therefore fail to establish that Wright m eets each of the prerequisites necessary for issuance of a preliminary injunction. CONCLUSION A ccord ingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. The motion for preliminary injunction filed by the plaintiff on September 27, 2006 2

Case 2:06-cv-00863-WKW-CSC

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be DENIED. 2. This case be referred back the undersigned for additional proceedings. It is further OR DE R E D that on or before October 12, 2006 the parties may file objections to the R e c o m m e n d a tio n . Any objection must specifically identify the findings in the Frivolous, conclusive or general objections will not be

Re co m men d atio n objected to.

consid ered by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failure to file written objections to the proposed findings in the Recommendation shall bar the party from a de novo determination by the District Court of issues covered in the report and shall bar the party from attacking on appeal factual findings in the report accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981, en banc), adopting as binding precedent all decisions of the former Fifth Circuit issued prior to September 30, 1981. Done this 28 th day of September, 2006.

/s/Charles S. Coody CHARLES S. COODY C H IEF UNITED STATES MAGISTRATE JUDGE

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