Long v. Mohr et al

Filing 11

ORDER & REPORT AND RECOMMENDATION re 9 MOTION for Injunction: The Magistrate Judge RECOMMENDS that Plaintiff's request be DEINIED. Objections to R&R due within fourteen days of the date of this Report. Plaintiff's 8 MOTION to Amend 3 Complaint is DENIED without prejudice. Plaintiff's 10 MOTION asking this his Request for Injunction and Motion to Amend be forwarded to Defense Counsel is DENIED. Plaintiff's 7 MOTION to Provide Counsel is DENIED without prejudice. Signed by Magistrate Judge Norah McCann King on 8/7/2015. (er)(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

MARK M. LONG,
Plaintiff,
vs.

Civil Action 2:15-cv-1616
Judge Frost
Magistrate Judge King

GARY MOHR, et al.,
Defendants.

ORDER AND
REPORT AND RECOMMENDATION
Plaintiff, a state inmate currently housed at the Madison
Correctional Institution (“MaCI”), filed this civil rights action on
May 6, 2015 against 41 employees of MaCI and the Ohio Department of
Rehabilitation and Correction (“ODRC”). This matter is now before the
Court for consideration of several motions filed by plaintiff on July
22, 2015.
First, plaintiff has filed a motion to appoint counsel.
to Provide Counsel, ECF 7.

Motion

Plaintiff represents that he “does not

have the funds to provide it’s [sic] own counsel.”

Id.

Because the

action has not yet progressed to the point that the Court is able to
evaluate the merits of plaintiff’s claim, the Motion to Provide
Counsel, ECF 7, 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

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consider plaintiff’s financial resources, the efforts of plaintiff to
obtain counsel, and whether plaintiff’s claim appears to have any
merit.”).
Plaintiff’s second motion is a motion to amend the Complaint.
ECF 8.

Plaintiff seeks “to revise the complaint if the file date of

5-6-15 will remain the file date after filing the revised complaint,”
but “if the date of 5-6-15 will change to the revised complaint date
upon filing the revised complaint, then disregard this motion.”

Id.

It appears that plaintiff may be attempting to amend the Complaint to
demand a jury trial.

However, plaintiff did not include a copy of his

proposed amended complaint with his motion and the purpose of the
amendment is not entirely clear from his motion.

Considering the

nature of plaintiff’s request and the uncertainty of the proposed
amendments, plaintiff’s motion to amend, ECF 8, is DENIED without
prejudice to renewal upon the tender of the proposed amended
complaint.

See Fed. R. Civ. P. 15(c).

Plaintiff has also filed a Request for Injunction, ECF 9.
Plaintiff’s motion seeks an order requiring defendant Gary Mohr, the
Director of ODRC, to transport plaintiff “to the U.S. Courthouse,
Office of the Clerk, to deliver paper filings in person due to the
hardship of U.S. mail delivery cost.”

Id.

Plaintiff asks that the

order permit plaintiff “to be transported to the courthouse as often
as needed to deliver paper filings, and this transport occur within 24
hrs. of advising DRC staff.”

Id.

Plaintiff represents that he cannot

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pay for “daily needs, federal filing fees, and mail delivery cost of
civil action paperwork at the same time.”

Id.

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 has not

offered any evidence in support of his request for an injunction and
he has not shown that immediate and irreparable injury will result
before defendants can be heard in opposition.
Plaintiff has also filed a motion requesting that his Request for
Injunction and motion to amend be “forward[ed] . . . to counsel for
the defendants.”

ECF 10.

Were defendants to receive notice of

plaintiff’s Request for Injunction, the motion would be treated as one
for a preliminary injunction.

See Fed. R. Civ. P. 65(a); Rios v.

Blackwell, 345 F. Supp. 2d 833, 835 (N.D. Ohio 2004) (“As long as
there is notice to the other side and an opportunity to be heard, the
standard for a preliminary injunction is the same as that for a
temporary restraining order.”).

The decision whether or not to grant

a request for interim injunctive relief falls within the sound
discretion of the district court.

Friendship Materials, Inc. v. Mich.

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Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982); Gonzales v. Nat’l Bd.
of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000).

An injunction,

however, is an extraordinary remedy that should be granted only after
a court has considered the following four factors:
(1) whether the movant has a “strong” likelihood of success
on the merits; (2) whether the movant would otherwise
suffer irreparable injury; (3) whether issuance of a
preliminary injunction would cause substantial harm to
others; and (4) whether the public interest would be served
by issuance of a preliminary injunction.
Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing
McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459
(6th Cir. 1997)).
balanced.

These four considerations are factors to be

In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.

1985); Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir.
2001).

Here, all of the factors weigh against granting the requested

injunction.

Most notably, plaintiff has not provided any evidence in

support of his motion and he does not argue that he will suffer
irreparable injury absent a preliminary injunction.

Moreover, the

extraordinary remedy sought by plaintiff would cause a substantial
hardship to ODRC and would not serve the public interest.

It is

therefore RECOMMENDED that plaintiff’s Request for Injunction, ECF 9,
be DENIED.
Defendants have not been served with process and no appearance
has been made by or on behalf of defendants.

Plaintiff’s motion

asking that his Request for Injunction and motion to amend be
forwarded to defense counsel, ECF 10, is therefore DENIED.

Once

defense counsel enters an appearance, counsel will receive electronic

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notice of all documents filed in this case.
In sum, plaintiff’s Motion to Provide Counsel, ECF 7, is DENIED
without prejudice to renewal at a later stage of the proceedings,
plaintiff’s Motion to Amend, ECF 8, is DENIED without prejudice to
renewal upon the tender of the proposed amended complaint, and
plaintiff’s motion asking that his Request for Injunction and motion
to amend be forwarded to defense counsel, ECF 10, is DENIED. It is
RECOMMENDED that plaintiff’s Request for Injunction, ECF 9, be DENIED.

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.

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,

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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 7, 2015

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

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