Dykes #201541 v. Finco et al

Filing 18

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 12 ; Plaintiff's motion for preliminary injunction 9 is DENIED; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT L. DYKES,
Plaintiff,
Case No. 1:18-cv-669
v.
HON. JANET T. NEFF
THOMAS FINCO, et al.,
Defendants.

____________________________/
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed a
motion for a preliminary injunction, seeking to have this Court “approve me for the vegan meal”
or, in the alternative, a “menu that comports to my sincere[ly] held beliefs” (ECF No. 9 at
PageID.56).

The matter was referred to the Magistrate Judge, who issued a Report and

Recommendation (R&R), recommending the motion be denied. The matter is presently before the
Court on Plaintiff’s objections to the Report and Recommendation. In accordance with 28 U.S.C.
§ 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has performed de novo consideration of those
portions of the Report and Recommendation to which objections have been made. The Court
denies the objections and issues this Opinion and Order.
In his objections, Plaintiff first asserts that the Magistrate Judge misconstrued his request
inasmuch as the Magistrate Judge referenced only his alternative request for a “separate menu”
and did not reference his request for a “vegan meal” (Pl. Obj., ECF No. 13 at PageID.69-70).
However, Plaintiff does not explain, and the Court does not discern, how the characterization of

his request would change either the Magistrate Judge’s analysis or ultimate conclusion. Therefore,
Plaintiff’s first objection is denied.
Next, Plaintiff objects to the “Magistrate’s misinterpretation of the standards for approval
of a preliminary injunction order expressed in case law, or the Magistrate’s assertion of a standard
not required” (Pl. Obj., ECF No. 13 at PageID.70). Specifically, Plaintiff objects to the Magistrate
Judge’s requirement that Plaintiff show the absence of an adequate legal remedy (Pl. Obj., ECF
No. 13 at PageID.70; R&R, ECF No. 12 at PageID.67). Plaintiff’s objection fails to demonstrate
any legal error in the Magistrate Judge’s analysis. Although not an enumerated factor, whether a
plaintiff is being threatened “by some injury for which he has no adequate legal remedy” is the
“main prerequisite to obtaining injunctive relief.” Dana Corp. v. Celotex Asbestos Settlement Tr.,
251 F.3d 1107, 1118 (6th Cir. 2001) (quoting 11A Charles Alan Wright et al., FED. PRACTICE &
PROCEDURE, § 2942 (2d ed. 1995)). Therefore, Plaintiff’s second objection is denied.
Last, Plaintiff argues that the Magistrate Judge improperly determined that he is unlikely
to prevail on the merits of his underlying claim and that he has not shown that he will suffer
irreparable injury absent injunctive relief (Pl. Obj., ECF No. 13 at PageID.71-72). While Plaintiff
disagrees with how the Magistrate Judge weighed these two factors, he has not demonstrated any
factual or legal error in her analysis. The Magistrate Judge properly considered the applicable
legal standards for injunctive relief and the record presented and properly concluded that Plaintiff
was not entitled to the requested injunctive relief. Therefore, Plaintiff’s third and fourth and
objections are also denied.
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. Because this action was filed in forma pauperis, this Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of this decision would not be taken in good

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faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997), overruled on other
grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007). Therefore:
IT IS HEREBY ORDERED that the Objections (ECF No. 13) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 12) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s motion for preliminary injunction (ECF No.
9) is DENIED.
IT IS FURTHER ORDERED that this Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an appeal of this decision would not be taken in good faith.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: February 21, 2019

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