Alfred v. Corrections Corp of America et al

Filing 49

REPORT AND RECOMMENDATIONS re 9 MOTION for Temporary Restraining Order, 45 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order RECOMMENDING that Alfred's motions be DENIED. Objections to R&R due by 3/9/2009. Signed by Magistrate Judge James D Kirk on 02/19/09. (crt,Burge, J)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA ALEXANDRIA DIVISION PETER ALFRED VERSUS CCA U.S. MAGISTRATE JUDGE JAMES D. KIRK REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE This is one of ten lawsuits filed by this prisoner in this court, eight of which were filed in the last two years. Here are motions by plaintiff for "emergency injunctive relief" and for a TRO, which I interpret as a request for a temporary restraining order and preliminary injunction [Doc. # 9 and 45]. Plaintiff CIVIL ACTION NO. 08-0643 U.S. DISTRICT JUDGE DEE D. DRELL

asks the court to order the prison not to retaliate against him. Rule 65 of the Federal Rules of Civil Procedure provides, in pertinent part, as follows: (b) A temporary restraining order may be granted without written or oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required.

In order for plaintiff to obtain a preliminary injunction, he must show: (1) a substantial likelihood that his cause will succeed

on the merits, (2) a substantial threat of irreparable injury if the injunction is not granted, (3) that the threatened injury outweighs the threatened harm the injunction may do to the opposing party, and (4) that the court granting the injunction will not disserve the public interest. Piedmont Heights Civic Club, Inc. v.

Moreland, 637 F.2d 430 (5th Cir. 1981). In the instant case, plaintiff has failed to meet the

requirements set forth above.

The facts alleged do not appear by

affidavit and the motion is not verified. Further, plaintiff has not alleged any specific facts to show that immediate and

irreparable injury, loss, or damage will result to him before the adverse party can be heard in opposition and there is no

substantial threat of irreparable injury prior to the time a hearing can be held in this matter. Additionally, plaintiff has

not shown that there is a substantial likelihood that his cause will succeed on the merits. All of the plaintiff's complaints can

be addressed, to the extent they involve allegations contained in this lawsuit, on the merits and they do not require injunctive relief. Plaintiff's motions for temporary restraining order and preliminary injunction should be denied. Conclusion For the foregoing reasons, IT IS RECOMMENDED that plaintiff's requests for temporary restraining order and/or preliminary

injunction [Doc. #9 and 45] be DENIED.

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OBJECTIONS Under the provisions of 28 U.S.C. § 636(b)(1)(C) and

Fed.R.Civ.P. 72(b), the parties have ten (10) business days from service of this Report and Recommendation to file specific, written objections with the clerk of court. A party may respond to another

party's objections within ten (10) days after being served with a copy thereof. A courtesy copy of any objection or response or

request for extension of time shall be furnished to the district judge at the time of filing. Timely objections will be considered

by the district judge before he makes his final ruling. FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT UPON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UN-OBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE. THUS DONE AND SIGNED in chambers, in Alexandria, Louisiana, on this 19th day of February, 2009.

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