Garrett v. U.S. Department of Justice et al (INMATE 3)
Filing
96
MEMORANDUM OPINION AND ORDER: it is ORDERED that Plf's motion for a temporary restraining order (doc. 92 ) is DENIED; It is further ORDERED that this case is referred back to the Magistrate Judge for further proceedings. Signed by Chief Judge Emily C. Marks on 9/4/2020. (cwl, )
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
LARRY DEAN GARRETT, JR.,
Plaintiff,
v.
UNITED STATES MARSHALS
SERVICE, et al.,
Defendants.
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) CIVIL CASE No. 2:17-cv-470-ECM
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(WO)
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MEMORANDUM OPINION and ORDER
This case was recently reassigned to the undersigned. On April 27, 2020, the pro
se Plaintiff filed a document entitled “Judicial Notice to the Courts” in which he complains
about not getting mail and asserting that the mail staff at his institution is opening his legal
mail outside of his presence. (Doc. 92). In the document, the Plaintiff
requests if within the Courts (sic) authority to Order a
preliminary injunction or a temporary restraining order against
the Department of Justice employees . . . to prevent the
following: (1) Relocating plaintiff to another U.S.P. institution
for any reason so long as his conduct requires a means for
punishment or threat of safety; (2) Mail room staff from
opening All legal correspondence out of presence of plaintiff
and requiring signature; (3) Unit Team from denying the
plaintiff paid and/or indigent copies of legal documents, and
monitored or private attorney calls upon request . . .
(Id. at 2).
To the extent the Plaintiff’s document contains a motion for a temporary restraining
order, the motion is due to be denied, and the case will be referred back to the Magistrate
Judge for further proceedings.
A temporary restraining order should issue only where the moving party
demonstrates (1) that there is a substantial likelihood of success on the merits, (2) that the
temporary restraining order 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).
Furthermore, 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 he has made to notify the nonmoving party and the reasons notice
should not be required. Fed. R. Civ. P. 65(b)(1).
Plaintiff has not met Rule 65(b)(1)'s requirements. The Plaintiff does not allege any
concrete facts to support a finding that a temporary restraining order is necessary to prevent
immediate and irreparable injury before Defendants can be heard in opposition. Second,
Plaintiff has not submitted the certification required by Rule 65(b)(1)(B). Because the
motion fails scrutiny under Rule 65(b)(1), it is not necessary to analyze the Parker
elements.
Accordingly, it is
ORDERED that Plaintiff's motion for a temporary restraining order (doc. 92) is
DENIED. It is further
ORDERED that this case is referred back to the Magistrate Judge for further
proceedings.
DONE this 4th day of September, 2020.
/s/ Emily C. Marks
EMILY C. MARKS
CHIEF UNITED STATES DISTRICT JUDGE
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