Kyles-Bey v. Eyman et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for a temporary restraining order [ECF No. 7] is DENIED without prejudice.. Signed by District Judge Rodney W. Sippel on 7/30/13. (LGK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNKNOWN EYMAN, et al.,
No. 4:13CV998 SPM
MEMORANDUM AND ORDER
This matter is before the Court on plaintiff’s motion for a temporary restraining
order. Plaintiff alleges that defendants have given him medications that had the
adverse result of causing physical injury to his buttocks. Plaintiff says that the prison
officials stopped giving him the medication in January 2012. Plaintiff asserts,
however, that he still has the pain in his buttocks and that he cannot sit down without
experiencing pain. Plaintiff seeks medical treatment for his condition.
Plaintiff submitted his complaint in this action on May 22, 2013. On May 31,
2013, the Court found that the complaint did not comply with the pleading rules of
the Federal Rules of Civil Procedure, and the Court ordered plaintiff to submit an
amended complaint. Plaintiff has not yet submitted a viable amended complaint.
Because plaintiff is proceeding in forma pauperis, process will only issue after
plaintiff submits a non-frivolous complaint. As a result, defendants have not been
served with process or made aware of the existence of this action.
Plaintiff’s motion for a temporary restraining order does not contain a
certificate of service. Therefore, defendants have not been put on notice of the filing
of the motion, and the nature of the motion is ex parte.
Under Fed. R. Civ. P. 65(b)(1):
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
(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 this case, plaintiff has not submitted an affidavit or verified complaint
showing immediate and irreparable injury. As a result, plaintiff is not entitled to an
ex parte temporary restraining order.
Moreover, to determine whether preliminary injunctive relief is warranted, the
Court must balance the threat of irreparable harm to movant, the potential harm to the
nonmoving party should an injunction issue, the likelihood of success on the merits,
and the public interest. Dataphase Sys. v. CL Sys., 640 F.2d 109, 113-14 (8th Cir.
1981) (en banc). Because plaintiff has not submitted a viable complaint to the Court,
he cannot demonstrate a threat of irreparable harm or that he is likely to succeed on
the merits. The public interest does not warrant issuing a temporary restraining order
in these circumstances. As a result, the motion for a temporary restraining order will
be denied without prejudice.
IT IS HEREBY ORDERED that plaintiff’s motion for a temporary restraining
order [ECF No. 7] is DENIED without prejudice.
Dated this30th day of July, 2013.
RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
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