Royster v. Imbrogno et al
REPORT AND RECOMMENDATION that 2 MOTION for Temporary Restraining Order be denied. Objections to R&R due by 2/13/2017. Signed by Magistrate Judge Terence P. Kemp on 1/30/2017. (agm)(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
JUDGE GEORGE C. SMITH
Magistrate Judge Kemp
Andre Imbrogno, et al.,
REPORT AND RECOMMENDATION
Jerome Royster, an inmate at Chillicothe Correctional
Institution (“CCI”) filed a petition for a writ of habeas corpus
on December 15, 2016, together with a motion for a temporary
restraining order (“TRO”).
is now ripe for decision.
The motion has been fully briefed and
For the following reasons, it will be
recommended that Mr. Royster’s motion (Doc. 2) be denied.
This lawsuit concerns a petition for a writ of habeas corpus
brought by Mr. Royster against Andre Imbrogno, the Chairperson of
the Adult Parole Authority (“APA”) and the APA itself. Mr. Royster
asserts that a fellow inmate, Charles M. Steele, has served as his
jailhouse lawyer for various state and federal lawsuits and “knew
[his] case[s] intimately.” (Doc. 2 at 4). Mr. Royster’s TRO motion
argues that he has been denied access to the courts by
“respondent’s agents,” which presumably refers to corrections
officers or other staff at CCI, in violation of the First
He claims that officials at CCI have intentionally
prevented Mr. Steele from assisting him in court filings. Id. Mr.
Royster argues that the officials “have continuously interfered
with Mr. Steele and myself, when we attempted to litigate
proceedings in various court [sic], and have written myself and Mr.
Steele Disciplinary Conduct Reports simply because Mr. Steele has
endeavored to assist me through a process that I have no ability to
He seeks a TRO preventing the respondents or their
agents from interfering with his access to the courts.
The factors to be weighed before issuing a temporary
restraining order are the same as those considered for issuing a
preliminary injunction. See, e.g., Workman v. Bredesen, 486 F.3d
896, 904-05 (6th Cir. 2007). In deciding whether to grant a
preliminary injunction, the Court considers the following
factors:(1) whether the movant has a strong likelihood of success
on the merits; (2) whether the movant would suffer irreparable
injury without the injunction; (3) whether issuance of the
injunction would cause substantial harm to others; and (4)
whether the public interest would be served by the issuance of
the injunction. Hunter v. Hamilton Cnty. Bd. of Elections, 635
F.3d 219, 233 (6th Cir. 2011) (citation and internal quotation
marks omitted). These are “factors to be balanced, not
prerequisites that must be met.” Welch v. Brown, 551 Fed.Appx.
804, 808 (6th Cir. 2014) (quoting Washington v. Reno, 35 F.3d
1093, 1099 (6th Cir. 1994)). “ ‘While as a general matter, none
of these four factors are given controlling weight, a preliminary
injunction where there is simply no likelihood of success on the
merits must be reversed.’ “Farnsworth v. Nationstar Mortg., LLC,
569 Fed.Appx. 421 (6th Cir. 2014), quoting Mich. State AFL-CIO v.
Miller, 103 F.3d 1240, 1249 (6th Cir. 1997); see also Gonzales v.
Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000)(“a
finding that there is simply no likelihood of success on the
merits in usually fatal”).
Further, “‘[t]he party seeking a preliminary injunction
bears a burden of justifying such relief, including showing
irreparable harm and likelihood of success.’” Kentucky v. U.S. ex
rel. Hagel, 759 F.3d 588, 600 (6th Cir. 2014), quoting Michigan
Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d 372,
382 (6th Cir. 2014); see also Overstreet v. Lexington–Layette
Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002)(injunctive
relief is “an extraordinary remedy which should be granted only
if the movant carries his or her burden of proving that the
circumstances clearly demand it”). Further, the “proof required
for the plaintiff to obtain a preliminary injunction is much more
stringent than the proof required to survive a summary judgment
motion.” Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000).
While each of the above factors is to be balanced against
each other, “[i]n the context of a First Amendment claim, the
balancing of these factors is skewed toward emphasis on the first
factor.” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 690 (6th
Cir. 2014). That is, “the other three factors hinge on the first
factor.” Id. For example, determining where the public interest
lies depends on the likelihood of success on the merits “because
it is always in the public interest to prevent the violation of a
party's constitutional rights.” Id. (citations and internal
quotation marks omitted).
Additionally, the issue of harm to the
parties cannot be addressed in this context without a finding of
a constitutional violation. Id.
This is a habeas corpus action, which may concern only the
fact or duration of an individual’s custody, and will only be
granted if the individual’s custody is found to be in violation
of the Constitution. As the basis for his motion for a
preliminary injunction, Mr. Royster asserts that he is prevented
from receiving assistance from his jailhouse lawyer for his case,
and that he was retaliated against in the form of disciplinary
conduct reports against him. Turning first to Mr. Royster's
likelihood of success on the merits, in order to establish this
factor, Mr. Royster must demonstrate more than a mere possibility
of success. Doe v. The Ohio State University, 136 F.Supp.3d 854,
871 (S.D. Ohio 2016), citing Six Clinics Holding Corp. v. Cafcomp
Sys., Inc., 119 F.3d 393, 402 (6th Cir. 1997). That is, Mr.
Royster must “‘establish [ ] a substantial likelihood or
probability of success on the merits.’” Id., quoting Int'l Dairy
Foods Ass'n v. Boggs, 622 F.3d 628, 635 (6th Cir. 2010).
In his argument in support of a TRO, Mr. Royster makes only
conclusory statements with respect to being denied access to the
He does not indicate precisely how officials have
prevented him from receiving legal assistance, nor does he
acknowledge the elements of a retaliation claim or allege
specific facts related to the claimed unsubstantiated conduct
reports brought against him. Defendants argue, among other
things, that Mr. Royster has not demonstrated a likelihood of
success on the merits because the motion is barred by the
doctrine of res judicata.
They point out that this Court denied
a virtually identical motion for a TRO in a recent case filed
under 42 U.S.C. §1983 by Mr. Royster and Mr. Steele against CCI
In the Report and Recommendation which recommended
dismissal of the case and denial of the motion for a TRO, the
Magistrate Judge stated:
Plaintiffs fail to state a claim for relief. Mr. Steele
claims that Defendants infringed upon his right to
access the courts as Mr. Royster's jailhouse lawyer,
but Mr. Steele has no such right. ‘It is clear in this
circuit that an inmate does not have an independent
right to help other prisoners with their legal claims.’
Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th Cir.
1999). As for Mr. Royster's claims, ‘prison officials
may not prevent’ jailhouse lawyers from assisting other
inmates or ‘retaliate for providing such assistance
where no reasonable alternatives are available.’ Gibbs
v. Hopkins, 10 F.3d 373, 378 (6th Cir. 1993). In order
to proceed on such a claim, a plaintiff must plead or
present evidence that he is ‘unable to file his own
complaint or grievance,’ Evans v. Vinson, 427 Fed.Appx.
437, 445 (6th Cir. 2011), and that he ‘has no other
sources of help,’ Nelson v. Joosten, 100 F.3d 957, No.
95-1800, 1996 WL 637487, at *1 (6th Cir. Nov. 4, 1996).
Plaintiffs do not allege that Mr. Royster is unable to
file his own pleadings. Further, the attachments to
their complaint indicate that the Institution has a
procedure for inmates to receive legal assistance
beyond that of Mr. Steele. (See, e.g., Doc. 1-2 at 14,
25). Mr. Steele's retaliation claim, which is
derivative of Mr. Royster's claims, lacks merit for the
same reason. Ziegler v. McGinnis, 32 Fed.Appx. 697, 699
(6th Cir. 2002).”
Steele v. Jenkins 2016 WL 4564010 (S.D. Ohio Sept. 1, 2016).
District Judge adopted the Magistrate Judge’s Report and
Recommendation and a final judgment was entered for the
defendants. Id., 2016 WL 5848849 (S.D. Ohio Oct. 6, 2016).
In this TRO motion, which is substantially similar to the
previous TRO motion, Mr. Royster has added language to the effect
that he has no ability to deal with his legal matters on his own.
However, as established in his recent case before this Court, CCI
has a procedure for inmates to receive legal assistance beyond
that of Mr. Steele.
Prisoners do not have the right to a
jailhouse lawyer, and certainly not a particular jailhouse lawyer
of their choosing. Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th
This case is a habeas petition filed against the
Chair of the APA and the APA itself, not any individual employees
of CCI who he alleges to be engaging in the improper conduct.
Moreover, the individuals who Mr. Royster claims are denying him
access to the courts are not parties to this case. Without
addressing directly the defendants’ res judicata argument, the
Court acknowledges that the facts alleged here in support of the
motion for TRO are substantially similar to those in the recent
case, and agrees with Magistrate Judge Jolson’s reasoning. Mr.
Royster has not demonstrated a strong likelihood of success on
the merits of this claim. Because the other factors required for
a TRO are hinged on his likelihood of success on the merits, Mr.
Royster has failed to meet this burden. See Liberty Coins, supra,
748 F.3d at 690.
Based on the above discussion, it is recommended that motion
for a temporary restraining order (Doc. 2) be denied.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
of the report or specified proposed findings or
recommendations to which objection is made.
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.
See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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