Brown v. Mohr et al

Filing 238

REPORT AND RECOMMENDATION that 231 Plaintiff's Motion for Preliminary Injunction be DENIED. ORDER that 237 Plaintiff's Motion to Compel and Motion for Appointment of Counsel are DENIED. Objections to R&R due by 11/2/2018. Signed by Magistrate Judge Sharon L. Ovington on 10-19-18. (mcm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
STEVEN S. BROWN,
Plaintiff,
vs.
DIRECTOR MOHR, et al.,
Defendants.

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Case No. 2:13-cv-00006
District Judge George C. Smith
Magistrate Judge Sharon L. Ovington

ORDER AND REPORT AND RECOMMENDATION 1
Plaintiff Steven S. Brown is an inmate at the Warren Correctional Institution. He
claims in the present case that multiple Defendants violated many of his constitutional
rights during his previous incarceration at the Ross Correctional Institution. He now
seeks, and Defendants oppose, a preliminary injunction. (Doc. #s 231, 233).
Issuance of a preliminary injunction—an extraordinary remedy—depends on the
balancing of four factors:
(1) whether the movant has shown a strong likelihood of success on the
merits; (2) whether the movant will suffer irreparable harm if the injunction
is not issued; (3) whether the issuance of the injunction would cause
substantial harm to others; and (4) whether the public interest would be
served by issuing the injunction.
Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 573 (6th Cir. 2002)
(citation omitted). “Although no one factor is controlling, a finding that there is simply

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Attached is a NOTICE to the parties regarding objections to this Report and Recommendation.

no likelihood of success on the merits is usually fatal.” Gonzales v. National Bd. of Med.
Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000) (citation omitted).
As indicated above, Plaintiff’s Motion raises new allegations about events that
allegedly occurred during his current incarceration at Warren Correctional. He buttresses
his Motion with evidence connected to events that allegedly occurred in early-to-mid
2018. The instant case, however, is largely limited in scope to his pre-2018 claims about
alleged events during his confinement at Ross Correctional. Plaintiff’s Motion therefore
fails to demonstrate a substantial likelihood of success on any of the pending claims in
the present case. King v. Zamiara, 788 F.3d 207, 217 (6th Cir. 2015) (“Because the dueprocess claim is not at issue in this suit, we may not grant injunctive relief to remedy an
alleged due-process violation.” (citing De Beers Consol. Mines Ltd. v. United States, 325
U.S. 212, 220 (1945)).
Plaintiff has also not shown irreparable harm because if—hypothetically—his new
2018 claims have merit, his harm would be fully reparable by way of monetary damages.
See Overstreet v. Lexington-Fayette Urban Cty. Government, 305 F.3d 566, 578 (6th Cir.
2002). Further, Plaintiff’s allegations do not implicate either of the remaining
preliminary-injunctions factors.
In sum and for the above reasons, the balance of the applicable factors fails to
support issuance of the preliminary injunction Plaintiff seeks. Cf. Matthews v. Core
Civic, No. 1:16cv0108, 2017 WL 1021287, at *1 (M.D. Tenn. 2017) (Holmes, M.J.)
(Report and Recommendation) (“Absent extraordinary and urgently compelling reasons,
the Court will not intervene in matters such as the day-to-day operations of a correctional
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facility....”).
Plaintiff also asks the Court to appoint counsel to represent him in this case. The
United States Constitution does not require the appointment of counsel for indigent
plaintiffs in civil cases such as this, and Congress has not provided funds with which to
compensate attorneys who might agree to represent those plaintiffs. Moreover, there are
not enough attorneys who can absorb the costs of representing persons on a voluntary
basis to permit the Court to appoint an attorney for all pro se plaintiffs. The Court makes
every effort to appoint counsel in civil cases that proceed to trial and, in exceptional
circumstances, will attempt to appoint counsel at an earlier stage of a civil case. No such
exceptional circumstances presently appear in this case.
Plaintiff lastly seeks an Order granting him an extension of time concerning his
“overdue responses to Summary Judgment in the Western District that [he] cannot
answer due to O.D.R.C. denial of access to the law and destruction of [his] evidence.”
(Doc. #231, PageID #s 2193-94). The deadline for filing motions for summary
judgement in the instant case is more than two months away. No motion for summary
judgment is now pending in the instant case and, consequently, Plaintiff’s response to
such a motion cannot be overdue. If Plaintiff seeks an extension of time in his other case,
he must pursue it by motion in that case. 2
IT IS THEREFORE ORDERED THAT:
Plaintiff’s Motion for Appointment of Counsel and
Motion for Extension of Time (Doc. #237) are DENIED.
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Plaintiff’s other pending case is Steven S. Brown v. Director Mohr, et al., 1:12cv583 (S.D. Ohio)
(Barrett, J.; Bowman, M.J.).

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IT IS THEREFORE RECOMMENDED THAT:
Plaintiff’s Motion for Preliminary Injunction (Doc. #231) be DENIED.

October 19, 2018

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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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. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to SEVENTEEN days if this Report is being served by one of the
methods of service listed in “Fed. R. Civ. P. 5(b)(2)(C) (mail), (D) (leaving with the
clerk), or (F) (other means consented to) ….” 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. If the Report and Recommendation is based in whole or in part upon
matters occurring of record at an oral hearing, the objecting party shall promptly arrange
for the transcription of the record, or such portions of it as all parties may agree upon or
the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. 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. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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