Pullen v. Howard et al

Filing 46

ORDER and REPORT AND RECOMMENDATION re 45 MOTION for Preliminary Injunction filed by Terry Tyrone Pullen, Jr. It is RECOMMENDED that Plaintiffs request for injunctive relief be DENIED. Objections to R&R due by 4/30/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/13/2015. (mas1)(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
EASTERN DIVISION

TERRY TYRONE PULLEN, JR.,
Plaintiff,
Civil Action 2:14-cv-104
Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

C/O LISA HOWARD, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, Terry Tyrone Pullen, Jr., an Ohio inmate who is proceeding without the
assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983 against Defendants,
employees and former employees of the Ohio Department of Rehabilitation and Correction
(“ODRC”), alleging that he was subjected to excessive force in violation of the Eighth
Amendment. This matter is before the Court for consideration of an April 9, 2015 filing that
Plaintiff characterizes as a Declaration. (ECF No. 45.) In this filing, Plaintiff details alleged
incidents of retaliation and requests a preliminary injunction and an order transferring him to
another prison. Based upon Plaintiff’s requests, the Court DIRECTS the Clerk to docket
Plaintiff’s April 9, 2015 filing (ECF No. 45) as a Motion for a Preliminary Injunction. Upon
considering Plaintiff’s April 9, 2015 filing, it is RECOMMENDED that Plaintiff’s request for
injunctive relief be denied for the reasons that follow.
In his April 9, 2015 filing, Plaintiff states that prison officials at Southern Ohio
Correctional Facility (“SOCF”) orchestrated assaults against him by other inmates. He further

represents that SOCF prison officials are interfering with his ability to exhaust his administrative
remedies and refusing to complete a theft report after his property was stolen. Plaintiff also
states that SOCF staff and officials are failing to adequately supervise other inmates and that
they are engaging in harassment and retaliation. Plaintiff asks the Court for injunctive relief in
the form of an Order requiring his transfer to another prison.
A district court is vested with discretion to determine whether to issue a preliminary
injunction. See Fed. R. Civ. P. 65(b); Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trs.,
411 F.3d 777, 782 (6th Cir. 2005). “The purpose of a preliminary injunction is merely to
preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of
Texas v. Camenisch, 451 U.S. 390, 395 (1981). Thus, “‘[a] party moving for a preliminary
injunction must necessarily establish a relationship between the injury claimed in the party’s
motion and the conduct asserted in the complaint.’” Colvin v. Caruso, 605 F.3d 282, 300 (6th
Cir. 2010) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)). Put another way,
“[a] court may not grant a preliminary injunction when the issues raised in the motion are
entirely different from those raised in the complaint.” Frost v. Stalnaker, No. 1:09–cv–662,
2009 WL 3873666, at *2 (S.D. Ohio Nov. 18, 2009) (citations omitted).
In the instant case, Plaintiff’s request for a preliminary injunction is premised on new
claims premised upon new allegations of unconstitutional retaliation and conditions of
confinement. In addition, Plaintiff’s motion involves new defendants, some unnamed, and none
of whom appear to have been served such that the Court has not obtained personal jurisdiction
over them. These new claims involving new defendants fail to provide a sufficient basis for
granting injunctive relief in this lawsuit. See Colvin, 605 F.3d at 300 (finding that inmate “had

2 

no grounds to seek an injunction pertaining to allegedly impermissible conduct not mentioned in
his original complaint”).
Accordingly, it is RECOMMENDED that Plaintiff’s request for injunctive relief (ECF
No. 45) be DENIED.
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiff is specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge's report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

3 

Date: April 13, 2015

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

4