Matthews v. Dayton Police Department et al
Filing
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REPORT AND RECOMMENDATION1 THAT PRO SE PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER AND A PRELIMINARY INJUNCTION (DOC. 18 ) BE DENIED. Objections to R&R due by 5/29/2018. Signed by Magistrate Judge Michael J. Newman on 5/14/18. (pb)(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
WESTERN DIVISION AT DAYTON
ANTHONY MATTHEWS,
Plaintiff,
Case No. 3:18-cv-26
vs.
DAYTON POLICE DEPARTMENT, et al.,
District Judge Thomas M. Rose
Magistrate Judge Michael J. Newman
Defendants.
_________________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT PRO SE PLAINTIFF’S
MOTION FOR A TEMPORARY RESTRAINING ORDER AND A
PRELIMINARY INJUNCTION (DOC. 18) BE DENIED
_________________________________________________________________________________
This civil case is before the Court on pro se Plaintiff’s motion for a temporary restraining order
(“TRO”) and preliminary injunction. Doc. 18. Defendants the City of Dayton (“the City”) and Randy
Betsinger filed a memorandum in opposition to Plaintiff’s motion. Doc. 19. Finding that pro se
Plaintiff has failed to meet his burden of showing that issuance of a TRO or a preliminary injunction
is appropriate, the undersigned RECOMMENDS that pro se Plaintiff’s motion be DENIED.
This case arises from a traffic stop that occurred on January 19, 2018. Doc. 1 at PageID 10.
On that date, Defendant Randy Betsinger, a police officer employed by Defendant Dayton Police
Department, stopped a vehicle in which Plaintiff was traveling. Id. Officer Betsinger requested and
ultimately demanded that Plaintiff exit the vehicle and Plaintiff complied. Id. Plaintiff alleges that he
was then detained and his car towed by Defendant Sandy’s Towing Service. Id.; see also doc. 14 at
PageID 100. No further factual allegations are asserted at this time.
Plaintiff filed his pro se complaint in this case on January 24, 2018, purporting to assert
criminal charges against Defendants under 18 U.S.C. § 4, a criminal statute prohibiting misprision of
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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.
a felony.2 However, 18 U.S.C. § 4 is a criminal statute that does not provide a private right of action
to individuals. See Mohwish v. Gentry, Nos. 97-5331, 97-5417, 1998 WL 466567, at *2 (6th Cir. July
31, 1998); Apollo v. Peake, 306 F. App’x 584, 587 (Fed. Cir. 2009); Keyter v. Bush, No. 04-5324, 2005
WL 375623, at *1 (D.C. Cir. Feb. 16, 2005); Voinche v. Obama, 428 F. App’x 2, 4 (D.C. Cir. 2011);
DuBose v. Kasich, No. 2:11-CV-00071, 2013 WL 164506, at *2 (S.D. Ohio Jan. 15, 2013); Defluiter
v. Ohio, No. 2:08-CV-863, 2009 WL 773923, at *1 (S.D. Ohio Mar. 19, 2009), report and
recommendation adopted, No. 2:08-CV-863, 2009 WL 936440 (S.D. Ohio Apr. 7, 2009). The
undersigned, however, liberally construes pro se Plaintiff’s complaint to assert alleged constitutional
violations under 42 U.S.C. § 1983 arising from the stop of his car, his detention, and the subsequent
towing of his vehicle. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (stating that “[a]
document filed pro se is ‘to be liberally construed’”).
Plaintiff presents no evidence in support of his motion for a preliminary injunction or TRO.
Id. The Court, however, in the interest of justice, has carefully considered and liberally construed
Plaintiff’s motion, the allegations in his complaint, and the attachments appended thereto in deciding
his motion. Finding no evidentiary hearing required, see Certified Restoration Dry Cleaning Network,
L.L.C. v. Tenke Corp., 511 F.3d 535, 552 (6th Cir. 2007) (stating that “a hearing is only required when
there are disputed factual issues, and not when the issues are primarily questions of law”), Plaintiff’s
motion is ripe for decision.
“A preliminary injunction 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.” Overstreet v.
Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). “The purpose of a preliminary
injunction is simply to preserve the status quo[,]” United States v. Edward Rose & Sons, 384 F.3d 258,
Title 18, Section 4 of the United States Codes states that, “[w]hoever, having knowledge of the
actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as
possible make known the same to some judge or other person in civil or military authority under the United
States, shall be fined under this title or imprisoned not more than three years, or both.” 18 U.S.C. § 4.
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261 (6th Cir. 2004), i.e., “to preserve the parties’ relative positions in order to prevent irreparable injury
prior to trial.” Montgomery v. Carr, 848 F. Supp. 770, 779 (S.D. Ohio 1993). Notably, “the standard
for obtaining a temporary restraining order and the standard for obtaining a preliminary injunction are
the same.” Planned Parenthood of Greater Ohio v. Hodges, 188 F. Supp. 3d 684, 688–89 (S.D. Ohio
2016). Therefore, the undersigned will analyze Plaintiff’s request for a TRO and a preliminary
injunction together.
In deciding whether a TRO or preliminary injunction should issue, four factors must be
examined: (1) whether the movant has shown a strong likelihood of success on the merits; (2) whether
the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the
injunction would cause substantial harm to others; and (4) whether the public interest would be served
by issuing the injunction.” Overstreet, 305 F.3d at 573. “These factors are not prerequisites, but are
factors that are to be balanced against each other.” Id.; but cf. Friendship Materials, Inc. v. Mich.
Brick, Inc., 679 F.2d 100, 103 (6th Cir. 1982) (stating that “[d]espite the overall flexibility of the test
for preliminary injunctive relief, and the discretion vested in the district court, equity has traditionally
required . . . irreparable harm before an interlocutory injunction may be issued”).
Here, pro se Plaintiff has not demonstrated a strong likelihood of succeeding on the merits of
his claims. See doc. 19 at PageID 13-34. He presents no actual evidence in support of his motion and
the allegations set forth therein are conclusory insofar as he alleges constitutional violations.
Even if Plaintiff did sufficiently show a likelihood of success on the merits, the Court finds no
irreparable injury in the absence of a TRO or preliminary injunction. Plaintiff alleges only past
violations, not any ongoing or potential future constitutional violation. Should Plaintiff ultimately
prevail in this case, he has failed to demonstrate that money damages are inadequate to address his
alleged past injuries. See Buckingham Corp. v. Karp, 762 F.2d 257, 262 (2d Cir. 1985) (finding past
injury, rather than ongoing future injury insufficient to support issuance of a preliminary injunction);
Conn v. Deskins, 199 F. Supp. 3d 1172, 1175 (E.D. Ky. 2016) (finding past alleged constitutional
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violations insufficient to show imminent irreparable injury); cf. Summers v. Earth Island Inst., 555
U.S. 488, 495 (2009).
The absence of an irreparable injury here weighs heavily against issuance of the requested TRO
and preliminary injunction. See Friendship Materials, Inc., 679 F.2d at 102–03 (stating that, at least
where a constitutional violation is not at issue, “this court has never held that a preliminary injunction
may be granted without any showing that the plaintiff would suffer irreparable injury without such
relief”); Harris v. United States, 745 F.2d 535, 536 (8th Cir. 1984) (holding that “the absence of a
showing of irreparable harm is, in itself, sufficient grounds upon which to deny a preliminary
injunction”); see also Enable Healthcare, Inc. v. Cleveland Quality Healthnet, LLC, No. 1:16 CV 2395,
2016 WL 6581813, at *4 (N.D. Ohio Nov. 7, 2016) (addressing only “the irreparable harm factor
because plaintiff has failed to show that it will suffer any irreparable injury if the Court denies its
motion”). In light of the foregoing, and finding no public interest furthered by the issuance of the
requested TRO or preliinary injunction, the undersigned RECOMMENDS that pro se Plaintiff’s
motion (doc. 18) be DENIED.
Date:
May 14, 2018
s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge
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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within FOURTEEN days after being served with this
Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if served
on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this Report
and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN DAYS
by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the deadline to file objections
by filing a motion for extension, which the Court may grant upon a showing of good cause.
Any objections filed shall specify the portions of the Report and Recommendation objected to,
and shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the
objecting party shall promptly arrange for the transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs.
A party may respond to another party’s objections within FOURTEEN days after being served
with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. P. 6(d) if
served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, this
Report and Recommendation was served upon you by mail, this deadline is extended to SEVENTEEN
DAYS by application of Fed. R. Civ. P. 6(d).
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.
1981).
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