Burse et al v. Jenkins et al

Filing 20

REPORT AND RECOMMENDATIONS re 15 MOTION for Preliminary Injunction filed by Perrin Burse. It is RECOMMENDED that the Motion be denied. Objections to R&R due by 3/7/2016. Signed by Magistrate Judge Norah McCann King on 2/17/2016. (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
PERRIN BURSE, et al.,
Plaintiffs,
Civil Action 2:15-cv-2992
Judge Watson
Magistrate Judge King

vs.
CHARLOTTE JENKINS, et al.,
Defendants.

REPORT AND RECOMMENDATION

Plaintiff, a state prisoner, brings this civil action under 42
U.S.C. § 1983 asserting claims arising out of alleged interference
with legal proceedings pursued by him.1 See Order and Report and
Recommendation, ECF No. 14; Order, ECF No. 19. This matter is now
before the Court on plaintiff’s motion for interim injunctive relief.
Motion for Preliminary Injunction, ECF No. 15.
The Motion for Preliminary Injunction asks that “all Chillicothe
Correctional institutional staff members

. . . cease and desist from

any further retaliation, harassment, or interfering with civil rights,
of plaintiff Perrin Burse.” Id. at PageID# 198.

Interim injunctive

relief is an extraordinary remedy that should be granted only after
the Court has carefully 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.
1

This case is related to a similar case pursued by plaintiff, now with the
assistance of counsel, in this Court: Burse v. Robinson, 2:14-cv-403.

1

Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000) (citing
McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 459 (6th
Cir. 1997) (en banc), quoting Sandison v. Michigan High Sch. Athletic
Ass’n, 64 F.3d 1026, 1030 (6th Cir. 1995)).

When considering these

factors, the district court should balance each factor against the
others to arrive at its ultimate determination. Id.

These factors are

not prerequisites to injunctive relief; rather, they are factors that
the Court must balance.

In re Delorean Motor Co., 755 F.2d at 1229;

Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001)
(no single factor is determinative.); Monongahela Power Co. v.
Schriber, 322 F. Supp.2d 902, 918 (S.D. Ohio 2004)(same).

However, a

preliminary injunction should not issue where there is simply no
likelihood of success on the merits.

Michigan State AFL-CIO v.

Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).
The Motion for Preliminary Injunction is not supported by
affidavit, declaration or evidence addressing plaintiff’s claims.
Moreover, the Complaint, ECF No. 4, was not executed under penalty of
perjury. Under these circumstances, plaintiff has offered no evidence
tending to establish a likelihood of success on the merits of his
claims. Interim injunctive relief on this record is therefore
unwarranted.
It is RECOMMENDED that the Motion for Preliminary Injunction, ECF
No. 15, 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,

2

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).

28

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

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

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

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

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

preserve an issue for appeal . . . .”) (citation omitted)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
February 17, 2016
(Date)

3

to