Woods v. Fowner et al
ORDER denying 56 Motion to Appoint Counsel; denying 57 Motion to Remove Consolidation Order; denying 58 Motion for Restraining Order; denying 59 Motion to Correct Error in Report and Recommendation; denying 60 Motion to Release Documen tation; denying 64 Motion for Summary Judgment; denying 65 Motion for Default Judgment; denying 66 Rule 34 Motion; denying 67 Rule 45 Motion; denying 68 Rule 65 Motion for Restraining Order; denying 69 Motion; denying 70 Motion f or Default Judgment. IT IS ORDERED that Woods' action is DISMISSED WITHOUT PREJUDICE, pursuant to Fed. R. Civ. P. rule 41(b), for failure to pay his filing fee or to submit a completed application to proceed in forma pauperis. Signed by Magistrate Judge Joseph H L Perez-Montes on 4/20/2017. (crt,Haik, K)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
CIVIL ACTION 1:16-CV-01097
JACKIE FOWNER, et al.
MAGISTRATE JUDGE PEREZ-MONTES
Plaintiff Carlos Woods filed a complaint pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which is
consolidated with another action he has pending in this Court (Woods v. Carvajal,
A Report and Recommendation was issued, recommending
dismissal of Woods’ claims as barred by Heck v. Humphrey, 512 U.S. 477 (1994) (Doc.
Since then, Woods has filed a Motion to Appoint Counsel (Doc. 56); a Motion to
Remove Consolidation Order (Doc 57); a Motion for Restraining Order (Doc. 58); a
Motion to Correct Error in Report and Recommendation (dated March 22, 2017) (Doc.
59); a Motion to Release Documentation (Doc. 60); a Summary of Undisputed
Facts/Complaint (Motion for Summary Judgment) (Doc. 64); a Motion for Default
Judgment (Doc. 65); a “Rule 34 Motion” (Doc. 66); a “Rule 45 Motion” (Doc. 67); a
“Rule 65 Motion for Restraining Order” (Doc. 68); and another Motion for Default
Judgment (Doc. 70). Woods also sent a letter to the Clerk’s office, asking that the
cases be “unconsolidated” (Doc. 69).
Woods’s Motion to Appoint Counsel (Doc. 56) is DENIED for the reasons
previously given (Docs. 16, 30, 31).
Woods’s Motions to Remove Consolidation Order (Docs. 57, 69) are DENIED.
The cases are properly consolidated.
Woods’s “Motion for Restraining Order” against every Defendant (Doc. 58) and
his “Rule 65 Motion for Restraining Order” against several prison employees (Doc.
68) are DENIED.
Rule 65 of the Federal Rules of Civil Procedure provides, in
pertinent part, as follows:
(b)(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 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's attorney certifies in writing any efforts made to
give the notice and the reasons why it should not be required.
In order for Woods 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.
See Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430 (5th Cir. 1981).
Woods’s allegations that Defendants are “taking” his legal papers and family
photos, and his bald request that several named prison employees stay “within 100
feet” of Woods “for safety,” do not show that he has been threatened with irreparable
injury. Moreover, Woods cannot show there is a substantial likelihood that his cause
will succeed on the merits, since there is already a recommendation to dismiss his
claim as barred by Heck.
Woods’s Motion to Correct Error in Report and Recommendation1 (Doc. 59)
(actually a memorandum order), contending he paid the filing fee in the consolidated
case, so he does not need to pay a filing fee in this case. Woods’s motion (Doc. 59) is
DENIED. There was no error in the order. Woods must pay the filing fees, or apply
for and be granted permission to proceed in forma pauperis, in every case he files.
Woods’s Motion to Release Documentation (Doc. 60) is DENIED. This is a
discovery motion that must be sent directly to Defendants after they have been served
and have answered.
Woods’s Summary of Undisputed Facts/Complaint (Motion for Summary
Judgment) (Doc. 64) is DENIED as premature. Defendants have not yet been served.
The Order for Woods to pay his filing fee or correct the deficiencies in his application to proceed in
forma pauperis was erroneously captioned as a “Report and Recommendation” (Doc. 47). Nevertheless,
the order was clear, and Woods has clearly stated that he will not comply with the order.
Woods’s Motions for Default Judgment (Docs. 65, 70) are denied. Defendants
have not yet been served.
Woods’s “Rule 34 Motion” (Doc. 66) is DENIED. This is a discovery motion
that must be sent directly to the Defendants after they have been served and have
Woods’s “Rule 45 Motion” (Doc. 67), to have Defendants served, is DENIED as
premature. There is a pending Report and Recommendation to have Woods’s action
denied and dismissed. If Woods’ action is not dismissed and if Woods’ either pays his
filing fee or is allowed to proceed in forma pauperis, service on Defendants will be
Woods has failed to pay the filing fee in this case, despite having been twice
ordered to do so (Docs. 3, 47). Woods has stated that he sees to no reason to pay two
filing fees for two different actions, since they have been consolidated. However, as
previously explained to Woods, consolidation of actions does not relieve a Plaintiff of
his obligation to either pay the filing fee, or apply for and be allowed to proceed in
forma pauperis, in each suit. Woods’s final compliance deadline was April 7, 2017.
Accordingly, IT IS ORDERED that Woods’ action is DISMISSED WITHOUT
PREJUDICE, pursuant to Fed. R. Civ. P. rule 41(b),2 for failure to pay his filing fee
or to submit a completed application to proceed in forma pauperis.
THUS DONE AND SIGNED in chambers at Alexandria, Louisiana on this
_____ day of April, 2017.
Joseph H.L. Perez-Montes
United States Magistrate Judge
See Link v. Wabash Railroad Company, 370 U.S. 626, 630-33 (1962); Rogers v. Kroger Company,
669 F.2d 317, 319-20 (5th Cir. 1983).
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