Wilson v. Dunn et al (INMATE 2)(JOINT ASSIGN)

Filing 3

ORDER DENYING without prejudice 1 MOTION for Temporary Restraining Order for failure to comply with the procedural requirements of Rule 65(b)(1) of the FRCP, as further set out in order; the 1 motion for preliminary injunction remains pending. Signed by Honorable Judge Myron H. Thompson on 12/2/16. (Attachments: # 1 civil appeals checklist)(djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
DAVID WAYNE WILSON,
Plaintiff,
v.
CORIZON MEDICAL SERVICE,
et al.,
Defendants.

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CIVIL ACTION NO.
2:16cv929-MHT
(WO)

ORDER
Before the court is plaintiff David Wayne Wilson’s
unverified pro se complaint (doc. no. 1), in which he
moves for issuance of a temporary restraining order and
a preliminary injunction.

Wilson did not set forth the

facts supporting his motion in a verified complaint1 or
an affidavit.2

1. A verified complaint contains a declaration
signed by the plaintiff under penalty of perjury, in
accordance with 28 U.S.C. § 1746, that the facts stated
in the complaint are true.
If executed within the
United States, a complaint may be verified with a
statement that takes substantially the following form:
“I declare (or certify, verify, or state) under penalty
of perjury that the foregoing is true and correct.

Accordingly, upon consideration of the motion, it
is ORDERED that the motion for temporary restraining
order

(doc.

no.

1)

is

denied

without

prejudice

for

failure to comply with the procedural requirements of
Rule 65(b)(1) of the Federal Rules of Civil Procedure,
which provides:
(b) Temporary Restraining Order:
(1) Issuing Without Notice. The court may issue
a temporary restraining order without written
or oral notice to the adverse party or its
attorney only if:
(A) specific facts in an affidavit or a
verified
complaint
clearly
show
that
Executed
1746(2).

on

(date).

(Signature).”

28

U.S.C.

§

2. An
affidavit
is
a
notarized
written
declaration, sworn to and signed under penalty of
perjury, that is used to support or oppose a motion.
The affidavit must be made on personal knowledge, set
out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to
testify on the matters stated.
See Fed. R. Civ. P.
56(c).
Under 28 U.S.C. § 1746, when “any rule” calls
for an affidavit sworn before a notary, an unsworn
written statement made without a notary is sufficient,
so long as it includes the signed statement: “I declare
(or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct.”
28 U.S.C. §
1746(2).
2

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) (emphasis added).
The motion for preliminary injunction (doc. no. 1)
remains pending.
DONE, this the 2nd day of December, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE