Bossio v. Bishop et al (INMATE 2)

Filing 3

ORDER denying 1 Motion for a Temporary Restraining Order; further ORDERED that the 1 motion for a preliminary injunction is REFERRED to the Magistrate Judge for further proceedings and a recommendation. Signed by Chief Judge William Keith Watkins on 10/24/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
HECTOR MANUEL BOSSIO,
#394364,
Plaintiff,
v.
DORA BISHOP, et al.,
Defendants.

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CASE NO. 3:16-CV-839-WKW
[WO]

ORDER
Before the court is Plaintiff’s motion for a temporary restraining order and
preliminary injunction.1 (Doc. # 1.)

Plaintiff is an inmate in Russell County Jail

in Phenix City, Alabama. Proceeding pro se, Plaintiff seeks a temporary restraining
order “against the Phenix City police for fear of future retaliation against [him],” and
other forms of injunctive relief. (Doc. # 1.) The motion for a temporary restraining
order is due to be denied, and the motion for a preliminary injunction will be referred
to the Magistrate Judge.
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)

1

Because Plaintiff is an inmate proceeding pro se, his complaint (Doc. # 1)—which he
brings under 42 U.S.C. § 1983 and which includes requests for relief in the form of a “restraining
order” and other forms of injunctive relief—is construed liberally as including both a motion for a
temporary restraining order and preliminary injunction. See Bellizia v. Fla. Dep’t of Corr., 614
F.3d 1326, 1329 (11th Cir. 2009) (holding that pro se filings are construed liberally).

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. First, although he has
submitted a verified complaint in support of his allegations, he 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.

2

Accordingly, it is ORDERED that Plaintiff’s motion for a temporary
restraining order (Doc. # 1) is DENIED.
It is further ORDERED that the motion for a preliminary injunction (Doc. # 1)
is REFERRED to the Magistrate Judge for further proceedings and a
recommendation.
DONE this 24th day of October, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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