Lyles v. Director, GDOC Health Services

Filing 9

REPORT AND RECOMMENDATION re 5TO DENY MOTION for Temporary Restraining OrderMOTION for Preliminary Injunction filed by Victor Lyles, Objections to R&R due by 5/30/2006.. Signed by Judge Richard L. Hodge on 05/09/2006. (Hodge, Richard)

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Lyles v. Director, GDOC Health Services Doc. 9 Case 1:06-cv-00056-WLS-RLH Document 9 Filed 05/09/2006 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ALBANY DIVISION VICTOR BERNARD LYLES, SR., : : Plaintiff : : VS. : : DR. DeWAYNE AYERS, et al., : : Defendants : _____________________________________ NO. 1:06-cv-56(WLS) RECOMMENDATION Plaintiff VICTOR BERNARD LYLES, SR., has filed a pro se civil rights complaint under 42 U.S.C. 1983. Accompanying his complaint is a request for a TRO or preliminary injunction (Tab # 5). In his motion, plaintiff seeks an injunction ordering the defendants to "arrange for an examination and a plan of treatment by a qualified orthopedic surgeon and ... to carry out that plan of treatment."1 A TRO or preliminary injunction is appropriate where the movant demonstrates that: (a) there is a substantial likelihood of success on the merits; (b) the TRO or preliminary injunction is necessary to prevent irreparable injury; (c) the threatened injury outweighs the harm that a TRO or preliminary injunction would cause to the non-movant; and (d) the TRO or preliminary injunction would not be averse to the public interest. Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001). The Court notes that because plaintiff was transferred from Calhoun State Prison on July 28, 2005, his request for a TRO or injunctive relief is now moot as to Dr. Ayers, as this defendant is no longer in a position to provide plaintiff with the relief he is seeking. 1 Dockets.Justia.com Case 1:06-cv-00056-WLS-RLH Document 9 Filed 05/09/2006 Page 2 of 2 At this juncture, the facts have not been sufficiently developed to determine that there is a substantial likelihood that plaintiff will ultimately prevail on the merits. Moreover, the defendants have not had an opportunity to respond to plaintiff's allegations. Accordingly, it is RECOMMENDED that plaintiff's motion for a TRO or preliminary injunction be DENIED. Under 28 U.S.C. 636(b)(1), plaintiff may serve and file written objections to this recommendation with the district judge to whom this case is assigned, within ten (10) days after being served a copy of this order. SO RECOMMENDED, this 9th day of May, 2006. /s/ Richard L. Hodge RICHARD L. HODGE UNITED STATES MAGISTRATE JUDGE

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