Hendrix v. Warden, Lebanon Correctional Insititution

Filing 64

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Emergency Motion 63 be DENIED. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 2/8/2023. Signed by Magistrate Judge Michael R. Merz on 1/25/2023. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:17-cv-00623-DRC-MRM Doc #: 64 Filed: 01/25/23 Page: 1 of 4 PAGEID #: 2049

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
D’JANGO HENDRIX,
Petitioner,

:

- vs -

Case No. 1:17-cv-623
District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz

WARDEN, Lebanon Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus action is before the Court on Petitioner’s Emergency Motion for
Extension of Time and/or Injunctive Relief to Stop Transfer (ECF No. 63). Because Hendrix seeks
injunctive relief, the Motion requires a report and recommendation from the assigned Magistrate
Judge, rather than an order. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b).
Petitioner reports that he is scheduled to be transferred to another unidentified ODRC
location on January 25, 2023. He believes the transfer is unwarranted and prays for permanent
injunctive relief or at least a temporary restraining order to prevent his transfer until he can file
motions for leave to amend and an amended petition plus a motion for evidentiary hearing and to
expand the record. He reports that drafts of these motions, which he intends to file by January 30,
2023, are currently stored on the server at the Lebanon Correctional Institution and cannot be
transferred. The drafts reportedly comprise 190 pages of text and would have to be re-typed.

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All of this is news to the Court. The only additional scheduled filing in the case is
Petitioner’s reply or traverse, which is due February 15, 2023 (See ECF No. 62). Petitioner’s time
to file the reply has been extended several times from October 31, 2022. The Court has never set
or been asked to set deadlines for the additional matters Hendrix proposes to file; habeas corpus
cases are typically ripe for decision with the filing of a traverse/reply.
None of Petitioner’s factual assertions are supported by evidence, even so much as a
declaration by Petitioner under 28 U.S.C. § 1746 that the facts in the Motion are true. The inability
to retrieve and transfer material already digitized and stored on a server at Lebanon Correctional
is completely mysterious to the Magistrate Judge. Why can’t the drafts be dumped to a flash drive
and then uploaded at Petitioner’s new location? Typically, transferability of data is a key goal of
digitization. In any event, what Petitioner requests is not that the data be transferred, but that his
own transfer be enjoined.
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
National Resources Defense Council, Inc., 555 U.S. 7, 20 (2008).
The factors to be considered in determining whether to issue a preliminary injunction are
1) Whether the plaintiffs have shown a strong or substantial
likelihood or probability of success on the merits;
2) Whether the plaintiffs have shown irreparable injury;
3) Whether the issuance of a preliminary injunction would cause
substantial harm to others;
4) Whether the public interest would be served by issuing a
preliminary injunction.
City of Pontiac Retired Employees Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc);
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Overstreet v. Lexington-Fayette Urban Co. Gov't, 305 F.3d 566, 573 (6th Cir. 2002); Nightclubs,
Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000); Washington v. Reno, 35 F.3d 1093,
1099 (6th Cir. 1994); NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989); Frisch's
Restaurant, Inc. v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); In re DeLorean Motor Co.,
755 F.2d 1223, 1228 (6th Cir. 1985).
Petitioner is not likely to prevail on any motion asking that he be retained at his current
location. Management of the location of prisoners within the prison system is uniquely a matter
committed to the discretion of the ODRC. Absent some showing, not made here, that ODRC was
carrying out a transfer for the purpose of preventing a habeas petitioner from litigating his case,
the Court would have no basis to interfere.
Petitioner has not shown he will suffer an irreparable injury. Respondent’s counsel is
requested to confirm whether Petitioner is correct about data transfer. Assuming that he is, the
injury is not irreparable as the Court has not set deadlines for the motions in question which
Hendrix admits can be re-typed. That is inconvenient, but not irreparable.
Finally, the public interest is not well served by having federal courts interfere with
prisoner transfer decisions if for no other reason than it consumes judicial time and effort without
protecting a strong interest of the prisoner in being in any one location.
Accordingly, it is respectfully recommended that the Emergency Motion be DENIED.
Because reasonable jurists would not disagree with this conclusion, it is also recommended that
Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that
any appeal would be objectively frivolous and should not be permitted to proceed in forma
pauperis.
January 25, 2023.

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NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal.
s/ Michael R. Merz
United States Magistrate Judge

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