Petersen v. Keller et al (INMATE1)

Filing 17

REPORT AND RECOMMENDATIONS that 1 MOTION for Preliminary Injunction filed by Allan A. Petersen on January 28, 2009 be DENIED; that this case be referred back the magistrate judge for additional proceedings; Objections to R&R due by 3/27/2009. Signed by Honorable Susan Russ Walker on 3/13/2009. (cc, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ALLAN A. PETERSON, Plaintiff, v. WARDEN KELLER, et al., Defendants. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:09-CV-73-TMH [WO] RECOMMENDATION OF THE MAGISTRATE JUDGE In this 42 U.S.C. 1983/Bivens action, Allan A. Peterson ["Peterson"], a former federal inmate, challenges actions taken against him during his incarceration at the Elmore County Jail and the Maxwell Federal Prison Camp. On January 28, 2009, Peterson filed a motion for preliminary injunction (Court Doc. No. 1). In this motion , Peterson requests issuance of a preliminary injunction requiring that the defendants provide him a Kosher diet and return his legal materials to him. Peterson, however, is no longer incarcerated. I. STANDARD OF REVIEW The 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 (11th Cir. 2002). This court may grant a preliminary injunction only if Peterson demonstrates each of the following prerequisites: (1) a substantial likelihood of success on the merits; (2) a substantial threat irreparable injury will occur absent issuance of the injunction; (3) the threatened injury outweighs the potential damage the requested injunction may cause the non-moving parties; and (4) the injunction would not be adverse to the public interest. Palmer, 287 F.3d at 1329; McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 Cate v. Oldham, 707 F.2d 1176 (11th Cir. 1983); Shatel Corp. v. Mao Ta Lumber and Yacht Corp., 697 F.2d 1352 (11th Cir. 1983). "In this Circuit, `[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly established the "burden of persuasion"' as to the four requisites." McDonald's, 147 F.3d at 1306; All Care Nursing Service, Inc. v. Bethesda Memorial Hospital, Inc., 887 F.2d 1535, 1537 (11th Cir. 1989) (a preliminary injunction is issued only when "drastic relief" is necessary); 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. Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir. 1994); see also Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (noting that "the absence of a substantial likelihood of irreparable injury would, standing alone, make preliminary injunctive relief improper"). "`The chief function of a preliminary injunction is to preserve the status quo until the merits of the controversy can be fully and fairly adjudicated.' Northeastern Fl. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fl., 896 F.2d 1283, 1284 (11th Cir.1990)." Suntrust Bank v. Houghton Mifflin 2 Co., 268 F.3d 1257, 1265 (11th Cir. 2001). II. DISCUSSION Turning to the first prerequisite for issuance of preliminary injunctive relief, the court finds that Peterson has failed to demonstrate a substantial likelihood of success on the merits of his claims. Peterson also fails to demonstrate a substantial threat that he will suffer the requisite irreparable injury absent issuance of a preliminary injunction. The third factor, balancing potential harm to the parties, weighs more heavily in favor of the defendants. Finally, the public interest element of the equation is a neutral factor at this juncture. Thus, Peterson has failed to meet his burden of demonstrating the existence of each prerequisite necessary to warrant issuance of a preliminary injunction. III. CONCLUSION Accordingly, it is the RECOMMENDATION of the Magistrate Judge that: 1. The motion for preliminary injunction filed by the plaintiff on January 28, 2009 be DENIED. 2. This case be referred back the undersigned for additional proceedings. It is further ORDERED that on or before March 27, 2009 the parties may file objections to the Recommendation. Any objection must specifically identify the findings in the Recommendation objected to. Frivolous, conclusive or general objections will not be 3 considered 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. F a i l u r e t o f i l e w r i t t e n 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 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all decisions of the former Fifth Circuit issued prior to September 30, 1981. Done, this 13th day of March, 2009. /s/ Susan Russ Walker SUSAN RUSS WALKER CHIEF UNITED STATES MAGISTRATE JUDGE 4

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