Mitchell v. Campbell

Filing 4

OPINION AND ORDER DISMISSING CASE and DISMISSING Application to Proceed without prepayment of the filing fee. (see order for details) Signed by District Judge Robert H. Cleland. (LWag)

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION PHILLIP D. MITCHELL, Plaintiff, v. Case No. 17-13583 WARDEN CAMPBELL, Defendant. ________________________________/ OPINION AND ORDER DISMISSING MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION AND DISMISSING THE APPLICATION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE Michigan prisoner Phillip D. Mitchell (“Mitchell”) filed a motion for a temporary restraining order and/or a preliminary injunction seeking to reinstate his access to the prison law library. (Dkt. #1.) He has also filed an application to proceed without prepayment of the filing fee. (Dkt. #2.) He names the prison warden as a defendant. The Federal Rules of Civil Procedure provide that “[a] civil action is commenced by filing a complaint with the court.” Fed. R. Civ. P. 3. Prior to the filing of a complaint, “an action has not ‘commenced’ within the meaning of the Federal Rules” and the court lacks subject matter jurisdiction to grant relief against any named defendants. See, e.g., Albright v. ISIS, No. 15-10671, 2015 WL 12699371, at *1 (E.D. Mich. Mar. 25, 2015) (Levy, J.). Mitchell has not filed a complaint with the court. Rather, he has filed a motion for injunctive relief under Federal Rule of Civil Procedure 65. That rule, however, merely provides for relief on an existing claim or cause of action. It does not provide an independent cause of action or basis for jurisdiction in federal court. See Weinberger v. Romero–Barcelo, 456 U.S. 305, 311 (1982); Chalmers v. JP Morgan Chase Bank NA, No. 12-10903, 2012 WL 4839861, *7 (E.D. Mich. Oct. 11, 2012) (Hood, J.). Consequently, the court lacks subject matter jurisdiction over this matter and it must be dismissed. Having found that Mitchell’s motion must be dismissed, the court will not reach the question of whether Mitchell should be able to proceed without prepayment of the filing fee. The court also concludes that an appeal from this order cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, IT IS ORDERED that Mitchell’s motion for temporary restraining order and/or preliminary injunction (Dkt. #1) is DISMISSED WITHOUT PREJUDICE. Mitchell’s application to proceed without prepayment of the filing fee (Dkt. #2) is DISMISSED WITHOUT PREJUDICE. This case is closed and will not be reopened. IT IS SO ORDERED. S/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: November 21, 2017 I hereby certify that a copy of the foregoing document was mailed to counsel of record and/or pro se parties on this date, November 21, 2017, by electronic and/or ordinary mail. S/Lisa Wagner Case Manager and Deputy Clerk (810) 292-6522 2

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