Kates v. Micieli et al

Filing 5

REPORT AND RECOMMENDATIONS re 3 MOTION for Temporary Restraining Order filed by David E Kates, 1 Complaint filed by David E Kates. IT IS RECOMMENDED that plaintiffs Motion for the issuance of a Temporary Restraining Order [rec. doc. 3] should be DENIED. Objections to R&R due by 9/21/2009. Signed by Magistrate Judge C Michael Hill on 8/31/09. (crt,Roaix, G)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA D A V I D E. KATES V S. C I V I L ACTION NO. 09-1447 S E C T IO N P J U D G E MELANÇON L T . MICIELI, ET AL. M A G I S T R A T E JUDGE HILL

R E P O R T AND RECOMMENDATION B e fo re the court is a Motion for the issuance of a Temporary Restraining Order file d by pro se plaintiff David E. Kates in connection with the above captioned civil rights law su it. [rec. doc. 3]. In his original Complaint, plaintiff names Lieutenant Micieli, C o rrectio n a l Officer Mr. Mandalfo and Captain Gregory Kizziah as defendants. Plaintiff c o m p la in s that he has been subjected to cruel and unusual punishment and has been d e n ie d his right to practice his religion and petition the courts. Plaintiff seeks damages. Specifically, in his Original Complaint, plaintiff alleges that on July 16, 2009, O ffic e r Mandalfo "smash[ed]" plaintiff's wrist and finger in the steel food trap, called h im a terrorist and threatened to poison his food, in violation of his Eighth Amendment ri g h ts . He further alleges that on July 20, 2009, Lieutenant Micieli placed him in a m b u la to ry restraints for five hours, and four point bed restraints for thirteen hours. During this time, plaintiff alleges that he was forced to eat, drink, urinate and defecate w h ile restrained, and that he was not provided toilet paper, sheets, shoes or a blanket.

2 P lain tiff further complains that he could not pray five times that day as required by his M u s lim faith, in violation of his Eighth and First Amendment rights. The accompanying M o tio n reveals that these restraints were apparently applied as a result of plaintiff's h a v in g spit on Micieli, for which assault charges are pending. Finally, plaintiff complains that Captain Kizziah, who is "over security"in the unit, is responsible for his being placed in restraints. He further is alleged to have violated p lain tiff's First Amendment right to petition the courts on July 21, 2009, when plaintiff w a s still restrained, by stating that plaintiff would not get any "legal property" to write the c o u rt s . Plaintiff admits that he has not yet exhausted BOP remedies prior to filing suit, but c laim s that this incident presents a life or death situation and hence, he need not await f in a l determination of his claims. B y this Motion, plaintiff seeks the issuance of a temporary restraining order to p ro te c t him from the alleged unjust and inhumane treatment. [rec. doc. 3]. In support of h is request, plaintiff re-avers the allegations of his Complaint. T h is matter was referred to the undersigned for review, report, and re c o m m e n d a tio n in accordance with the provisions of 28 U.S.C. § 636 and the standing o rd e rs of the court. L A W AND ANALYSIS In order to obtain a temporary restraining order under Rule 65(b) of the Federal R u le s of Civil Procedure, it is necessary for plaintiff to show by affidavit or verified

3 co m p lain t that immediate and irreparable injury, loss or damage will result to him before th e respondents can be heard in opposition, and plaintiff must certify to the court in w ritin g the efforts which have been made to give notice to the adverse party or reasons w h y notice should not be required. Plaintiff has failed to satisfy either requirement. Plaintiff fails to demonstrate that he will suffer immediate and irreparable injury, lo ss or damage should this court not act before the respondents can be heard in o p p o s itio n . To the contrary, the complained of incidents occurred in the past, over one a n d one half months ago, on July 16, 20 and 21, 2009, respectively, and were of short and lim ited duration. While plaintiff has expressed his belief that his life is in danger, there is n o competent evidence in the record before this court showing that a failure to im m e d ia te ly act will result in any injury, much less irreparable injury. To the contrary, plaintiff admits that his complaints are currently pending before th e BOP, having been presented by plaintiff through administrative grievance process, a n d there is no indication that the BOP will be unable to adequately address these c o m p la in ts without judicial intervention. Moreover, plaintiff has not shown that he has made any effort to advise the d e fe n d a n ts of his request for a temporary restraining order, and has failed to present any re a s o n s why the required notice should not be given. Finally, the issues which are the subject of this separate Motion are the same issues r a is e d in plaintiff's Complaint which will be addressed in the instant civil action. Thus, p la in tiff's separately filed Motion is duplicative and repetitive. Plaintiff cannot evade the

4 o rd e rly disposition of his claims by filing a separate motion for injunctive relief. For the above reasons, IT IS RECOMMENDED that plaintiff's Motion for the is s u a n c e of a Temporary Restraining Order [rec. doc. 3] should be DENIED. U n d er the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.Proc. 72(b), p a rties aggrieved by this recommendation have ten (10) business days from service of this re p o rt and recommendation to file specific, written objections with the clerk of court. A p a rty may respond to another party's objections within ten (10) days after being served w ith a copy thereof. F a ilu r e to file written objections to the proposed factual finding and/or the p r o p o s e d legal conclusions reflected in this Report and Recommendation within ten (1 0 ) days following the date of its service, or within the time frame authorized by F e d .R .C iv .P . 6(b), shall bar an aggrieved party from attacking either the factual fin d in g s or the legal conclusions accepted by the District Court, except upon g r o u n d s of plain error. See Douglas v. United Services Automobile Association, 79 F .3 d 1415 (5 th Cir. 1996). T H U S DONE AND SIGNED in Chambers at Lafayette, Louisiana, this 31 st day o f August, 2009.