Emilio v. Nebraska Department of Correctional Services et al

Filing 8

MEMORANDUM AND ORDER - that to the extent Plaintiff's Complaint and attachments (Filing 1 ) can be construed as a motion for a temporary restraining order, such motion is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAVON EMILIO,
Plaintiff,
v.
NEBRASKA DEPARTMENT OF
CORRECTIONAL SERVICES,
FRED BRITTEN, Warden, TAN,
Case Manager, and SAWYER, Case
Worker, et al.,
Defendants.

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4:17CV3027

MEMORANDUM
AND ORDER

Plaintiff, an inmate at the Lincoln Correctional Center, has filed a document
entitled “Complaint” which refers to a non-existent motion for a restraining order.
(Filing 1 at CM/ECF p. 4.) Attached to the Complaint is a form “Restraining Order”
setting a hearing and ordering that defendants Tan and Sawyer be “restrain[ed] from
coming in contact with plaintiff his property and living location.” (Filing 1 at
CM/ECF p. 5.) Plaintiff’s Complaint generally alleges that defendants Tan and
Sawyer injured Plaintiff on December 7, 2016, causing “small cuts, scrapes, large to
medium bruces [sic] on hand and forearms and injury to his right index finger”; that
Plaintiff received deficient medical treatment to remedy his injuries; that Plaintiff is
being denied access to legal material; and that Plaintiff is being retaliated against due
to his complaints about excessive force. (Filing 1 at CM/ECF pp. 1-4.)
To the extent Plaintiff’s Complaint and assorted attachments can be construed
as a motion for a temporary restraining order, such motion shall be denied. “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 . . . .” Fed. R. Civ. P.
65(b). Plaintiff has filed what he labels an “affidavit,” but it is not “reduced to writing
and the truth of which is sworn to before someone who is authorized to administer an
oath,” Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (internal quotation
marks and citation omitted), nor is it “subscribed by him, as true under penalty of
perjury.” 28 U.S.C. § 1746.
Further, Plaintiff has not addressed the factors the district court should consider
when determining whether to grant a motion for preliminary injunctive relief. See
Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (“[W]hether
a preliminary injunction should issue involves consideration of (1) the threat of
irreparable harm to the movant; (2) the state of balance between this harm and the
injury that granting the injunction will inflict on other parties litigant; (3) the
probability that movant will succeed on the merits; and (4) the public interest.”).
Finally, on March 6, 2017, the court ordered Plaintiff to submit a $400.00 filing
fee or submit a request to proceed in forma pauperis within 30 days. (Filing 6.)
Plaintiff has yet to comply with this order. No further review of this case will take
place until Plaintiff does so.
IT IS ORDERED that to the extent Plaintiff’s Complaint and attachments
(Filing 1) can be construed as a motion for a temporary restraining order, such motion
is denied.
DATED this 9th day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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