Carey v. Richie et al (INMATE 1)

Filing 6

ORDER denying 1 Motion for TRO, as further set out in order. Signed by Chief Judge William Keith Watkins on 7/22/16. (Attachments: # 1 civil appeals checklist) (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
CARLOS CAREY,
Plaintiff,
v.
WARDEN RICHIE, et al.,
Defendants.

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) CASE NO. 2:16-CV-599-WKW
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[WO]
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ORDER

Before the court is Plaintiff’s motion for temporary restraining order. (Doc.
# 1.) Plaintiff Carlos Carey (“Carey”) is a prisoner in the custody of the Alabama
Department of Corrections and is currently housed in Easterling Correctional
Facility (“Easterling”).

Upon careful consideration, the motion for temporary

restraining order will be denied.
In his complaint, Carey alleges that Defendants, who are members of the
Easterling staff, have violated his statutory rights. To wit, he alleges that his cellmate
has subjected him to physical and sexual abuse, but that Defendants refuse to report
this abuse in violation of the Prison Rape Elimination Act (“PREA”), 42 U.S.C. §
15601 et seq. He requests a “temporary restraining order against the defendants
from not giving [him] protection under [PREA].” (Doc. # 1, at 3.)
A temporary restraining order is an extraordinary form of relief. Such an order
should issue only where the moving party demonstrates (1) that there is a substantial

likelihood of success on the merits, (2) that the injunction is necessary to prevent
irreparable injury, (3) that the threatened injury outweighs the harm the temporary
restraining order would cause to the nonmoving party, and (4) that the temporary
restraining order would not be adverse to the public interest. Parker v. State Bd. of
Pardons & Paroles, 275 F.3d 1032, 1034–35 (11th Cir. 2001). Under Rule 65 of
the Federal Rules of Civil Procedure, a temporary restraining order may issue
without notice to the nonmoving party only if (a) specific facts in an affidavit or
verified complaint show that the moving party will suffer immediate and irreparable
injury before the adverse party can be heard, and (b) the moving party certifies in
writing the efforts it has made to notify the nonmoving party and the reasons notice
should not be required. Fed. R. Civ. P. 65(b)(1).
Because he has failed to demonstrate a substantial likelihood of success on
the merits, Carey is not entitled to a temporary restraining order. Congress enacted
PREA with the intention of increasing accountability of prison officials and
protecting the Eighth Amendment rights of prisoners. 42 U.S.C. § 15692. Nothing
in the language of the statute, however, establishes a private right of action to enforce
its terms. See Krieg v. Steele, 599 F. App’x 231, 232 (5th Cir. 2015) (per curiam);
see also Diamond v. Allen, No. 7:14-CV-124, 2014 WL 6461730, at *4 (M.D. Ga.
Nov. 17, 2014) (collecting cases). Because Carey has no private right of action under
PREA, he has failed to show that he is substantially likely to succeed on the merits
of this claim.
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Accordingly, it is ORDERED that Plaintiff’s motion for a temporary
restraining order (Doc. # 1) is DENIED.
DONE this 22nd day of July, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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