MCKINNEY v. LANIGAN et al

Filing 14

MEMORANDUM OPINION filed. Signed by Judge Freda L. Wolfson on 1/29/2019. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
IVAN G. MCKINNEY,
:
:
Plaintiff,
:
Civ. No. 18-309 (FLW) (LHG)
:
v.
:
:
GARY LANIGAN et al.,
:
MEMORANDUM OPINION
:
Defendants.
:
_________________________________________ :
I. INTRODUCTION
Plaintiff, Ivan McKinney (“McKinney” or “Petitioner”), is a state prisoner incarcerated at
New Jersey State Prison, in Trenton, New Jersey. He is proceeding pro se with this Complaint
asserting violations of his civil rights under 42 U.S.C. § 1983, as well as various state-law
claims. (See Compl., ECF No. 1.) The Court initially administratively terminated this action, as
McKinney’s Complaint included no filing fee or application to proceed in forma pauperis. (ECF
Nos. 3 & 4.) McKinney thereafter submitted a proper in forma pauperis application, and the
action was reopened. (ECF Nos. 9 & 12.) Also before the Court is a motion by McKinney for a
temporary restraining order or preliminary injunction. (ECF No. 10.)
II. SCREENING THE COMPLAINT
The Court must now review the complaint under 28 U.S.C. § 1915(e), 28 U.S.C. §
1915A, and 42 U.S.C. § 1997e to determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from suit. McKinney’s claims in this action
revolve around the installation of a hernia mesh in his abdomen, which McKinney alleges has
caused him to suffer great pain and discomfort, as well as various other side effects. (See ECF

No. 1.) In short, McKinney alleges that defendant Dr. Rajiv Shah, who apparently implanted the
hernia mesh, violated his constitutional rights by not properly explaining the risks and potential
side effects before performing the procedure. (Id. ¶ 4(b).) McKinney alleges that various
hospital administrators, as well as an anesthesiologist and the commissioner of the New Jersey
Department of Corrections, in both their official and individual capacities, should also bear
liability for this failure to properly warn him of the potential side effects of the hernia mesh. (Id.
at ECF pp. 4–5, 8–10.) Additionally, McKinney alleges a claim for products liability against
defendants Bard Davol Inc. and C.R. Bard (collectively, “Bard”), the manufacturer of the
specific hernia mesh he received. (Id. at ECF pp. 2, 5, 6, 11–12.) McKinney alleges that all acts
relevant to these claims occurred on July 17, 2014, the date the hernia mesh was implanted. (Id.
at ECF pp. 8–12.) Finally, McKinney alleges that he made repeated complaints to defendant
nurse manager Mary Lang regarding the side effects of the hernia mesh, but that “she turned a
blind eye” to his condition. (Id. at ECF p. 10.)
Under the Prison Litigation Reform Act, Pub. L. 104-134, §§ 801–810, 110 Stat. 1321-66
to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review prisoner complaints when the
prisoner (1) is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), (2) seeks redress
against a governmental employee or entity, see 28 U.S.C. § 1915A, or (3) asserts a claim
concerning prison conditions, see 42 U.S.C. § 1997e(c). The PLRA directs district courts to sua
sponte dismiss claims that are frivolous or malicious, that fail to state a claim upon which relief
may be granted, or that seek monetary relief from a defendant who is immune from such relief.
See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); 42 U.S.C. § 1997e(c).
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal

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Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012); see
also Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir. 2012) (discussing 42 U.S.C. §
1997e(c)(1)); Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008) (discussing 28
U.S.C. § 1915A(b)). That standard is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To survive the Court’s screening for
failure to state a claim, the complaint must allege “sufficient factual matter to show that the
claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Fair Wind Sailing, Inc. v.
Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014). “A pleading that offers ‘labels and conclusions’
or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555).
Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner, 404 U.S.
519, 520 (1972); Glunk v. Noone, 689 F. App’x 137, 139 (3d Cir. 2017). Nevertheless, “pro se
litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
Here, the Court first assesses the timeliness of McKinney’s claims. Causes of action
under 42 U.S.C. § 1983 are subject to the same two-year statute of limitations as claims for other
personal injuries under New Jersey state law. See Patyrak v. Apgar, 511 F. App’x 193, 195 (3d
Cir. 2013) (citing Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010)); Evans v.
Gloucester Twp., 124 F. Supp. 3d 340, 349 (D.N.J. 2015) (citing Pittman v. Metuchen Police
Dep’t, 441 F. App’x 826, 828 (3d Cir. 2011)). Claims under New Jersey’s products liability

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statute are also subject to this two-year statute of limitations. Dziewiecki v. Bakula, 853 A.2d
234, 237 (N.J. 2004); see also Hudson v. Siemens Logistics & Assembly Sys., 353 F. App’x 717,
723 (3d Cir. 2009).
Nearly all of McKinney’s § 1983 claims appear to be untimely from the face of the
Complaint. 1 He identifies as the relevant date of each defendants acts July 17, 2014, apparently
the date the hernia mesh was installed. (See ECF No. 1.) He further states, “I have had severe
complications to date since the product was implanted in me.” (Id. at ECF p. 11.) Thus, the twoyear limitations period for his claims related to these circumstances ended on July 17, 2016. The
Complaint was received by the Clerk’s Office nearly a year and a half after that, on January 9,
2018, though it included a cover letter dated December 29, 2017. (See ECF Nos. 1 & 1-1.) The
Court will give McKinney the benefit of the doubt, as appropriate for a pro se litigant, and
assume, under the “mailbox rule,” see Houston v. Lack, 487 U.S. 266, 270–71 (1988), that he
may have given it to prison staff for filing as early as its indicated date, December 29, 2017.
Nonetheless, the vast majority of claims are still facially untimely.
In his cover letter, however, McKinney asserts that he originally sent his Complaint on
July 11, 2016. (See ECF No. 1-1, at 2.) It reads,
On 07-11-16 I sent this enclosed complaint in good faith and gave
it to the Regular second shift officer on 2C. I handed it to the
officer with a New Jersey State Prison postage remit. I believe I
fully filled the prisoner’s mailbox rule that says my legal mail is
filed once I hand it to the officer. I have never heard from the
court in Newark, at 50 Walnut Street in regards to this matter. I
made copies today from a copy I had laying around. Maybe the
papers got missed place [sic] in the court, or this jail never sent it
out. I am now sending it to your Court here in Trenton. The
District court in Trenton knows about the severe problems I had
with my legal mail here at this prison: See McKinney v. George
Robinson, before the Hon. Judge Freda Wolfson, and the
1

The one exception to this is the § 1983 claim asserted against Mary Lang, which includes no
relevant dates.
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Magastrate [sic] Judge Douglas Arpert. I did not contact the court
in Newark because I thought everything was under control. I
thought because im citing some product liability that maybe it took
longer or something. Please see that this get filed at your earliest
[sic]. I have enclosed a copy of the 07-11-16 proof that I send it by
postage remit. I certify the forgoing [sic] by me is true, and if
found to be false im subject to criminal/civil penalties.
(Id.) McKinney included a copy of an NJSP Postage Remit form which indicates a date of July
11, 2016 for legal mail sent to this district’s Newark courthouse. (Id. at 1.)
McKinney’s claim that he originally gave his complaint to prison staff for filing on July
11, 2016 but that it may have been lost by prison staff or by the Court potentially implicates two
distinct legal doctrines: the prison mailbox rule and the doctrine of equitable tolling. In Houston
v. Lack, 487 U.S. 266, the Supreme Court created the prison mailbox rule, designed for pro se
prisoners, whereby a court filing will be deemed filed not when stamped received by the Clerk’s
office, but instead “at the time [the prisoner] delivered it to the prison authorities for forwarding
to the court clerk.” Id. at 275–76. In creating this rule, the Supreme Court noted that the pro se
prisoner has no choice but to rely on the prison mail system in order to file documents with the
court; such a litigant has no ability to deliver the document in person or to quickly confirm with
the Clerk’s Office that the document has been timely received. See id. The rule is typically
employed in cases where the pro se prisoner placed a document in the prison mail system a few
days before the relevant deadline and the document was not received by the Court until a few
days after the deadline. See, e.g., Houston, 487 U.S. at 268–69; Moody v. Conroy, 680 F. App’x
140 (3d Cir. 2017); Coudriet v. Vardaro, 545 F. App’x 99, 102 n.2 (3d Cir. 2013); Paluch v.
Sec’y Pa. Dep't of Corr., 442 F. App'x 690, 693 (3d Cir. 2011); Terrell v. Benfer, 429 F. App’x
74, 75 n.1 (3d Cir. 2011); Spencer v. Beard, 351 F. App’x 589, 590 (3d Cir. 2009).

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McKinney’s assertions here are very different from those considered in a typical prison
mailbox case. This is not a situation where a prisoner placed a document in the mail shortly
before a deadline and this Court received that document a few days after that deadline. Instead,
McKinney claims that he originally gave his complaint for mailing to prison staff three days
before his deadline but that it was never docketed and that, after almost a year and a half had
elapsed, he mailed another copy of the complaint. (See ECF No. 1-1.) It appears unlikely that
the Houston Court intended the prison mailbox rule to apply in such a distinct context, but there
is support in some courts for the theory that a document may be treated as filed on the date it was
delivered to prison authorities even if it is never docketed by the Court. See Ray v. Clements,
700 F.3d 993, 1002–13 (7th Cir. 2012); Stoot v. Cain, 570 F.3d 669 (5th Cir. 2009); Allen v.
Culliver, 471 F.3d 1196 (11th Cir. 2006); Huizar v. Carey, 273 F.3d 1220 (9th Cir. 2001); see
also Nichols v. Coleman, Civ. A. No. 08-cv-2445, 2010 WL 1053094, at *3 (E.D. Pa. Mar. 17,
2010). Each of these cases applied the prison mailbox rule to potentially toll the AEDPA
limitations period when a prisoner claimed to have commenced a state PCR proceeding, but the
state court had never received the pleading. See Ray, 700 F.3d at 1002–13; Stoot, 570 F.3d at
669–72; Allen, 471 F.3d at 1197–99; Huizar, 273 F.3d at 1222–24; Nichols, 2010 WL 1053094
at *3.
Without the benefit of the prison mailbox rule, there remains some possibility that
McKinney’s complaint could also be deemed timely by the application of the doctrine of
equitable tolling. Equitable tolling under New Jersey law may arise
where ‘the complainant has been induced or tricked by his
adversary's misconduct into allowing the deadline to pass,’ or
where a plaintiff has ‘in some extraordinary way’ been prevented
from asserting his rights, or where a plaintiff has timely asserted
his rights mistakenly by either defective pleading or in the wrong
forum.
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Cason v. Arie Street Police Dep't, Civ. No. 10–497 (KSH), 2010 WL 2674399, at *5 n.4 (D.N.J.
June 29, 2010) (quoting Freeman v. State, 788 A.2d 867, 879–80 (N.J. Super. Ct. App. Div.
2002)). The Court of Appeals for the Third Circuit has noted that “‘[a] petitioner seeking
equitable tolling bears the burden to show that he diligently pursued his rights and that some
extraordinary circumstances stood in [the] way.’” Hanani v. N.J. Dep’t of Evnt’l Protection, 205
F. App’x 71, 77 (3d Cir. 2006) (quoting Satterfield v. Johnson, 434 F.3d 185, 188 (3d Cir.
2006)). Thus, there is an argument to be made that equitable tolling should apply to the
circumstances McKinney alleges, but is unclear how his decision to wait nearly 18 months after
sending the Complaint to follow up in any manner could equate to diligent pursuit of his rights.
In any case, however, the argument that McKinney’s Complaint should be considered
timely faces a larger hurdle than his seeming lack of diligence, namely, the very credibility of his
assertions. McKinney is a frequent litigator in this district, and a simple review of his cases
reveals a troubling pattern. He has asserted in at least four of his recent actions before this Court,
including this one, that he gave his complaint to prison officials for mailing at an earlier date,
falling before the applicable statute of limitations expired, but that the pleading was never
docketed. See McKinney v. Fitzgerald, Civ. A. No. 18-12987 (FLW) (LHG), ECF No. 1-3;
McKinney v. Lanigan, Civ. A. No. 18-8618 (FLW) (LHG), ECF No. 1, at 1; McKinney v.
Campos, Civ. A. No. 16-4460 (FLW) (DEA), ECF No. 1, at 1. In each of these cases he either
references or includes a postage remit as evidence that he delivered his pleading for mailing at
some earlier date. In each instance, however, there is evidence suggesting that the postage remit
in question was in fact used to send some other document to the Court, which was timely
received and docketed.

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In McKinney v. Campos, Civ. A. No. 16-4460, the Court received McKinney’s complaint
on July 14, 2016. McKinney included a cover letter dated July 11, 2016, which asserted,
I sent this package initially on 03-21-16. I did not receive any
confirming documents that the court received such. I am resubmitting these documents on this day. I thank you for your time
in this matter. My initial package was given to Officer Cherry on
Unit 4-A on 03-21-16. And today im giving this package to desk
officer Early and his partner on unit 4-C second shift. My legal
mail has been tampered with so much I don’t know what actually
gets to its destination.
Civ. A. No. 16-4460, ECF No. 1 at 1. In support of his assertion that he originally mailed his
complaint on March 21, 2016, McKinney included an NJSP Postage Remit, dated “03-21-16,”
which indicates that he sent legal mail to “U.S. District Court Attn. Clerks Office – Hon.
Magastrate [sic] James B. Clark 50 Walnut St. Newark NJ 07101.” Id., ECF No. 1-2. The remit
was witnessed by “M. Cherry.” Id. This remit coincides exactly with a letter that McKinney
sent in a case that remains pending in the Newark vicinage in which Judge Clark is the assigned
Magistrate Judge. See McKinney v. Holmes, Civ. A. No. 14-3563 (KM) (JBC), ECF No. 16.
That letter is dated “03-21-16” and is addressed to “Attn. Clerk’s Office - Hon. Magastrate [sic]
James B. Clark.” Id. It was received and docketed on March 28, 2016. (Id.) It is inexplicable,
and rather incredulous, why McKinney would have sent a new pleading commencing a new
action to the attention of Magistrate Judge Clark, as the alleged remit indicates.
Similarly, in McKinney v. Lanigan, Civ. A. No. 18-8618, the Court received McKinney’s
complaint on April 23, 2018. That complaint asserted claims arising from incidents that
occurred in November and December 2015, indicating that the two-year limitations period for his
§ 1983 claims would generally have expired by the end of 2017. See Civ. A. No. 18-8618, ECF
No. 1. McKinney included a cover letter with that complaint dated April 17, 2018, which read,
“I am resubmitting this complaint because I never heard back from the Court. I initially filed this
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complaint 03-19-17 2 by Postage Remit. I have had a lot of problems with legal mail here and
may have gotten lost [sic].” Civ. A. No. 18-8618, ECF No. 1 at 1. This filing included no
postage remit as an exhibit, but the alleged date of his original filing seems to coincide precisely
with a letter he sent this Court in McKinney v. Campos, Civ. A. No. 16-4460, which was
received by the Court on March 22, 2017, in an envelope postmarked March 20, 2017. See Civ.
A. No. 16-4460, ECF No. 22.
In McKinney v. Fitzgerald, Civ. A. No. 18-12987, the Court received McKinney’s
complaint on August 17, 2018. That complaint asserted claims arising from incidents that
mostly occurred in March 2015, indicating that the two-year limitations period for his § 1983
claims would generally have expired in March 2017. See Civ. A. No. 18-12987, ECF No. 1.
McKinney included a cover letter with that complaint dated August 13, 2018, which read,
I filed this case on 05-12-16 in good faith! I filed this at New
Jersey State Prison on unit 4-C in good faith. As-per the prisoner’s
mailbox rule in Houston v. Lack and other cases, The U.S.
Supreme Court said that my mail is filed when I hand it to the
officer. I am refiling this action today 08-13-18 in good Faith
certified mail. I have enclosed my 05-12-16 Receipt in which I
originally filed.
Civ. A. No. 18-12987, ECF No. 1-3. In support of his assertion that he originally mailed his
complaint on May 12, 2016, McKinney included an NJSP Postage Remit, dated “05-12-16,”
which indicates that he sent legal mail with a postage cost of $1.57. Id., ECF No. 1-5. This
remit coincides exactly with a motion that McKinney sent in another case he has pending in the
Newark vicinage. See McKinney v. Hemsley, Civ. A. No. 14-3564 (KM) (JBC), ECF No. 35. A
cover letter included with the motion is dated “05-12-16,” and the motion was received and
docketed on May 16, 2016. See id., ECF No. 35-2. The envelope for this motion is postmarked
2

In this letter McKinney seems to have written the date “03-19-17” over an original listed date
of “03-10-17.” See Civ. A. No. 18-8618, ECF No. 1 at 1.
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May 13, 2016 and bears postage for $1.57—the same amount indicated on the postage remit that
supposedly reflects the mailing of McKinney’s complaint, on the same day, in Civil Action 1812987. See id. at 3. I note that the complaint in Civil Action 18-12987, which McKinney alleges
he originally filed on May 12, 2016, also inexplicably alleges in its claim against Antonio
Campos that he was the acting administrator on “03-28-18.” Civ. A. No. 18-12987, ECF No. 1
at ECF p. 9 (emphasis added).
The circumstances in this action are entirely consistent with the untoward pattern that
exists in McKinney’s other cases. As already noted, the Court received McKinney’s complaint
on January 9, 2018, and the Complaint asserts claims arising from surgery McKinney underwent
on July 17, 2014, indicating that the two-year limitations period for the bulk of his claims
expired in July 2016. (See ECF No. 1.) McKinney’s cover letter, quoted in full above, was
dated December 29, 2017, but alleged that McKinney had previously mailed the complaint to the
Court on July 11, 2016. (ECF No. 1-1 at 2.) He again included a postage remit, which was
dated “07-11-16” and which indicates postage in the amount of $2.20. (ECF No. 1-1 at 1.) The
pattern comes full circle, because this remit coincides exactly with the supposed resubmission of
McKinney’s complaint in Civil Action 16-4460 (which he then claimed he had previously sent
several months earlier). The cover letter for that complaint is dated “07-11-16,” Civ. A. No. 164460, ECF No. 1 at 1, and the envelope for that filing is postmarked July 12, 2016 and appears to
bear postage in the amount of $2.20, the same amount indicated on the postage remit, Civ. A.
No. 16-4460, ECF No. 1-3.
This pattern casts grave doubt on all of McKinney’s representations regarding his efforts
to file complaints in a timely fashion. Even were the Court to accept McKinney’s assertions that
he has recurring problems with his legal mail, the evidence reviewed above, if taken at face

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value, would require the Court to believe that each time McKinney attempted to mail a complaint
that disappeared without a trace, he simultaneously mailed another document to the Court,
sometimes bearing the exact same postage amount, which was promptly mailed, received by the
Clerk’s Office, and docketed. If McKinney is alleging tampering by prison staff with his legal
mail, it is unclear how or why the staff would, in each instance, have prevented the mailing of a
complaint to the court but, at the exact same time, would have promptly forwarded McKinney’s
other legal mail (which, in one instance, was another complaint). These supposed circumstances
strain credulity.
Furthermore, contrary to McKinney’s constant assertions that he placed his documents in
the mail in good faith, this pattern of filings strongly indicates that he has been acting in bad
faith. The prison mailbox rule and the doctrine of equitable tolling exist for the purpose of
ensuring that pro se prisoner litigants are not unfairly disadvantaged by the inherent limitations
of their circumstances. They are intended to ensure that prisoners receive a fair shot at litigating
their claims despite the disadvantages and unavoidable obstacles that derive from their
incarceration. These doctrines are not, however, meant to be abused by prisoners to sidestep the
statutes of limitations that apply to their claims.
The Court thus orders McKinney to show cause why his Complaint in this action should
not be dismissed as untimely. Given the implausible coincidences revealed by reviewing
McKinney’s filings herein and in other cases, he will bear a difficult burden of proving to the
Court not only that he in fact originally filed his complaint on July 11, 2016, but that, even if he
did, that such an attempted filing is sufficient to deem his refiling nearly18 months later to be
timely. McKinney is well advised that he certified the facts in his cover letter to be true subject
to criminal penalties. (See ECF No. 1-1 at 2.) Indeed, perjury is not a crime that is taken lightly

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by this Court. In that regard, in light of these issues, the Court does not undertake any screening
of the merits of McKinney’s claims until the timeliness questions are resolved.
III. MOTION FOR TEMPORARY RESTRAINING ORDER
McKinney also has pending before the Court a motion for a temporary restraining order
or preliminary injunction. (ECF No. 10.) To justify the extraordinary relief of a preliminary
injunction, a plaintiff must demonstrate (1) a likelihood of success on the merits, (2) that denial
would cause irreparable harm to the plaintiff, (3) that granting the injunction would not cause
irreparable harm to the defendant, and (4) that the injunction would be in the public interest. See
Maldonado v. Houston, 157 F.3d 179, 184 (3d Cir. 1998). The same standard applies to
temporary restraining orders. See Ballas v. Tedesco, 41 F. Supp. 2d 531, 537 (D.N.J. 1999). A
plaintiff must show that all four factors weigh in favor of an injunction or temporary restraining
order. See Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990).
Such preliminary relief is an “extraordinary remedy, which should be granted only in limited
circumstances.” Ferring Pharm., Inc. v. Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014)
(internal quotation marks omitted).
A temporary restraining order or preliminary injunction grants “intermediate relief of the
same character as that which may be granted finally.” See De Beers Consol. Mines v. United
States, 325 U.S. 212, 220 (1945). As indicated by the test for granting a preliminary injunction,
“there must be ‘a relationship between the injury claimed in the party’s motion and the conduct
asserted in the complaint.’” Ball v. Famiglio, 396 F. App’x 836, 837–38 (3d Cir. 2010) (quoting
Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)). Furthermore, a preliminary injunction
may bind only the parties, their agents, or other persons acting in concert with them. See Fed. R.
Civ. P. 65(d)(2)(A)–(C). The Court of Appeals for the Third Circuit has noted that a request for

12

injunctive relief is “legally deficient” when it is “targeted at potential conduct that bears no
relation to his underlying claim.” Martin v. Keitel, 205 F. App’x 925, 928–29 (3d Cir. 2006); see
also Ball, 396 F. App’x at 837–38.
McKinney seeks a temporary restraining order and preliminary injunction against
defendants Lanigan and Lang enjoining them from harassing or retaliating against McKinney for
filing lawsuits or grievances, opening his legal mail, delaying or denying medical treatment, and
failing to send him for “hernia revision surgery.” (ECF No. 10.) In support of his motion,
McKinney alleges that he has been retaliated against by prison medical staff and has been denied
hernia surgery. (See ECF No. 10-1.) He devotes most of his supporting declaration, however, to
allegations that he has received “bogus charges” and otherwise been retaliated against by prison
investigators and other prison staff in response to grievances McKinney has filed. (Id.)
The extraordinary relief of a temporary restraining order or preliminary injunction is not
warranted by McKinney’s motion. First, the bulk of McKinney’s motion seeks relief from
alleged retaliation for his grievance filings—relief that is unrelated to the Complaint’s allegations
that McKinney did not receive proper warning of the risks of a hernia mesh. Thus, it improperly
seeks preliminary relief that is not “of the same character as that which may be granted finally.”
See De Beers Consol. Mines, 325 U.S. at 220. Furthermore, as it presently appears that
McKinney’s Complaint is almost entirely barred by the statute of limitations, he has failed to
show that there is a likelihood of success on the merits. Nor has he established that the denial of
preliminary relief related to his claims would cause him irreparable harm. As it is clear that
McKinney has failed to meet his burden of showing that the factors weigh in favor of granting
preliminary relief, his motion for a temporary restraining order or preliminary injunction is
denied.

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IV. CONCLUSION
For the reasons explained above, McKinney’s motion for a temporary restraining order or
preliminary injunction, (ECF No. 10), is denied. Furthermore, upon screening the Complaint,
the Court orders McKinney to show cause within 30 days why his Complaint should not be
dismissed as untimely. An appropriate order follows.

/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge

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