Malone v. Obama et al (INMATE 3)

Filing 4

ORDER that the 3 Motion for Preliminary Injunction and Restraining Order is DENIED as further set out in the order. The Court further finds that this motion is more appropriately considered a request for a preliminary injunction and a claim for permanent injunctive relief. It is ORDERED that this case is REFERRED to the assigned Magistrate Judge for action or recommendation on all pretrial matters. Signed by Honorable Judge Mark E. Fuller on 5/7/2014. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DAVID MALONE,
Plaintiff,
v.

Case No. 2:14-cv-331-MEF
(WO—Do Not Publish)

PRESIDENT BARACK OBAMA;
HONORABLE ERIC HOLDER,
Defendants.
ORDER
This cause comes before the Court on the Motion for Preliminary Injunction and
Restraining Order (Doc. #3) and Application to Proceed in Forma Pauperis (Doc. #2) filed
by Plaintiff David Malone, acting pro se, on May 7, 2014. Plaintiff seeks to enjoin the
President of the United States and the United States Attorney General from implementing a
clemency program for federal inmates serving time for certain drug offenses. Specifically,
Plaintiff requests the Court to enjoin the President and the Attorney General from
implementing any clemency program until similar “provisions are made” for state prisoners,
to direct the Attorney General to investigate Alabama’s drug and sentencing laws, to order
the Attorney General to intervene in any preliminary injunction proceedings, and to order the
President to grant Plaintiff clemency so he “can get [his] law degree.” (Doc. #3.)
Rule 65 of the Federal Rules of Civil Procedure restricts a court’s ability to grant a
temporary restraining order. To overcome the restrictions contained in Rule 65, a plaintiff

must make clear from “specific facts in an affidavit or a verified complaint . . . that
immediate and irreparable injury, loss, or damage will result to the movant.” Fed. R. Civ.
P. 65(b)(1)(A). The Eleventh Circuit has held that this requires the plaintiff to show the
following: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will
be suffered unless the injunction issues; (3) that the threatened injury to the moving party
outweighs whatever damages the proposed injunction may cause the opposing party; and (4)
if issued, the injunction would not be adverse to the public interest. Palmer v. Braun, 287
F.3d 1325, 1329 (11th Cir. 2002). A temporary restraining order is “an extraordinary and
drastic remedy not to be granted unless the movant clearly establishe[s] the burden of
persuasion” as to each of these four elements. McDonald’s Corp. v. Robertson, 147 F.3d
1301, 1306 (11th Cir. 1998) (internal citations and quotations omitted). Even construing
Plaintiff’s pleading liberally, as the Court must do with pro se litigants, see Alba v. Montford,
517 F.3d 1249, 1252 (11th Cir. 2008), the Court finds that Plaintiff has wholly failed to meet
his burden of persuasion in establishing any of the above factors and, consequently, cannot
meet an essential requirement of Rule 65.
Based on the foregoing, it is hereby ORDERED that the Motion for Preliminary
Injunction and Restraining Order (Doc. #3) is DENIED. The Court further finds that this
motion is more appropriately considered a request for a preliminary injunction and a claim
for permanent injunctive relief. Accordingly, it is ORDERED that this case is REFERRED
to the assigned Magistrate Judge for action or recommendation on all pretrial matters.
DONE this the 7th day of May, 2014.

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/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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