Anderson v. Toledo Correctional Center Medical Dept. et al

Filing 12

ORDER AND REPORT AND RECOMMENDATIONS re 11 MOTION for Temporary Restraining Order filed by Bennie Anderson. It is RECOMMENDED that the motion be DENIED. Plaintiff's request for appointed counsel is DENIED without prejudice to renewal at a later stage of the proceedings. Objections to R&R due by 9/3/2015. Signed by Magistrate Judge Norah McCann King on 8/17/2015. (pes)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

BENNIE ANDERSON,
Plaintiff,
vs.

Civil Action 2:15-cv-728
Judge Graham
Magistrate Judge King

TOLEDO CORRECTIONAL CENTER
MEDICAL DEPT., et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION
Plaintiff, an inmate at the Toledo Correctional Institution
(“TOCI”), was granted leave to proceed in forma pauperis on March 5,
2015.

ECF 5.

On April 15, 2015, plaintiff filed an Amended Complaint

naming 16 individual defendants.

ECF 8.

Plaintiff has not effected

service of process on any of the defendants.

This matter is now

before the Court on a motion titled Action for Temporary Restraining
Order and Other Appropriate Relief (“Plaintiff’s Motion”), ECF 11.
Plaintiff’s Motion appears to argue that letters sent by plaintiff to
TOCI employees and relating to an appeal of plaintiff’s placement in
Local Control for a weapons violation were stolen and/or delayed in
delivery.

In his motion, plaintiff seeks (1) to be returned “to his

former prison status,” (2) the “[r]eturn and replacement of all
property, legal and religious,” (3) the discovery of a June 10, 2015
video, (4) the “[i]nvestigation and prosecution of all parties

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involved in theft of U.S. mails and legal communications,” and (5) the
appointment of counsel.
Rule 65 of the Federal Rules of Civil Procedure permits a party
to seek injunctive relief if he believes that he will suffer
irreparable harm or injury without such relief.
65(a), (b).

Fed. R. Civ. P.

Where, as here, the adverse party has not received

written or oral notice, a temporary restraining order may issue only
if, inter alia, “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).

Here, plaintiff seems to

argue that his letters/mail sent to TOCI employees has been stolen or
not been promptly delivered.

Plaintiff seeks an investigation into

the “theft” of his mail, but there is no evidence that plaintiff’s
mail has been stolen.

Indeed, plaintiff’s “kite . . . mailed on June

29th, 2015” was “stamped received on July 13th, 2015,” and his “appeal
opposing the L.C. hole placement” “was received marked denied.”
Plaintiff’s Motion, pp. 2-3.

Accordingly, plaintiff has not shown

that immediate and irreparable injury will result before defendants
can be heard in opposition.

The Court also notes that the allegations

in Plaintiff’s Motion appear, on their face, to have no connection to
the alleged denial of medical care that is the subject of the claims
asserted in the Amended Complaint.

It is therefore RECOMMENDED that

plaintiff’s motion for temporary restraining order be DENIED.

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Plaintiff’s Motion also requests that plaintiff be appointed
counsel “to protect plaintiff from further vengeance, retaliation, or
pressure placed on [him] by defendants.”

Plaintiff’s Motion, p. 4.

Because the action has not yet progressed to the point that the Court
is able to evaluate the merits of plaintiff’s claim, plaintiff’s
request for appointed counsel is DENIED without prejudice to renewal
at a later stage of the proceedings.

See Henry v. City of Detroit

Manpower Dept., 763 F.2d 757, 760 (6th Cir. 1985) (“[I]n considering
an application for appointment of counsel, district courts should
consider plaintiff’s financial resources, the efforts of plaintiff to
obtain counsel, and whether plaintiff’s claim appears to have any
merit.”).

If any party seeks review by the District Judge of this Report
and Recommendation, that party 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
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are 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.

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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)).

August 17, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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