Doe v. Tennessee, State of et al
Filing
36
REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS that Doe's motion for temporary restraining order (Doc. No. 10), motion for preliminary injunction (Doc. No. 11), and motion for hearing on the motions for temporary restraining orde r and preliminary injunction (Doc. No. 29) be DENIED WITHOUT PREJUDICE to refiling in light of the amended complaint. Signed by Magistrate Judge Alistair Newbern on 10/26/18. (xc:Pro se party by email. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af) Modified on 10/26/2018 (af).
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JOHN DOE, et al.,
Plaintiffs,
Case No. 3:18-cv-0471
v.
Judge William L. Campbell, Jr.
Magistrate Judge Newbern
STATE OF TENNESSEE, et al.,
Defendants.
To:
The Honorable William L. Campbell, Jr., District Judge
REPORT AND RECOMMENDATION
Plaintiff John Doe has filed motions seeking a temporary restraining order (Doc. No. 10),
preliminary injunction (Doc. No. 11), and a hearing on those motions (Doc. No. 29). 1 Defendants
have responded in opposition to the motions for injunctive relief (Doc. Nos. 14, 19). For the
reasons that follow, the Magistrate Judge RECOMMENDS that the motions be denied without
prejudice to refiling in light of the amended complaint (Doc. No. 23).
I.
Background
Doe filed this action on May 18, 2018, seeking relief against Governor Bill Haslam,
Attorney General Herbert Slatery, and State Court Administrator Deborah Taylor Tate under the
1
John Doe was the only plaintiff to the original complaint. (Doc. No. 1.) The amended
complaint adds as plaintiffs Doe’s three children, whom he refers to as Johnson Doe I, Johnson
Doe II, and Johnson Doe III. (Doc. No. 23.) Although Doe can appear on his own behalf in this
action, he cannot appear pro se on behalf of his children. Shepherd v. Wellman, 313 F.3d 963, 970
(6th Cir. 2002). The Court therefore considers these motions to have been filed only by Doe in his
pro se capacity. The Court will address Doe’s motion to appoint a guardian ad litem for his children
(Doc. No. 30) by separate order.
Americans With Disabilities Act, 42 U.S.C. §§ 12131, et seq. (Doc. No. 1.) Doe challenges the
facial validity of Tennessee Code Annotated § 36-6-106, arguing that the statute violates the
Fourteenth Amendment and Title II of the ADA “by allowing a disability to be a factor in custody
and placement determinations.” (Id.) In the alternative, Doe seeks a declaratory judgment requiring
that the statute be construed only to allow consideration of a parent’s disability if it poses a “real
and direct threat to the child.” (Id.)
After Defendants answered (Doc. No. 7), Doe filed a motion to amend the complaint and
attached Defendants’ written consent to the amendment (Doc. No. 9). 2 Defendants Haslam,
Slatery, and Tate have responded in opposition. (Doc. Nos. 14, 19.) The amended complaint adds
seven new defendants: (1) Jane Doe, John Doe’s wife, with whom he is currently in divorce and
child custody proceedings in the Dickson County General Sessions Court; (2) Kirk Vandivort, his
wife’s attorney; (3) Reynolds, Potter, Ragan & Vandivort, PLC, Vandivort’s law firm (Reynolds
Potter); (4) Dickson County General Sessions Court Judge Craig Monsue; (5) Dickson County
Chancery Court Chancellor David Wolfe, who has presided over the Does’ divorce proceedings;
(6) the Dickson County Chancery Court; and (7) the Dickson County General Sessions Court.
(Doc. No. 23, PageID# 248–49.) Doe also added eight claims for relief, including a claim for civil
rights violations under 42 U.S.C. § 1983 and various state law claims. (Doc. No. 23). As relief,
Doe seeks declaratory and injunctive relief, including the voiding of an order of protection
obtained by Jane Doe and entry of Doe’s proposed parenting plan, as well as monetary damages,
attorney’s fees, and costs. (Id.)
2
Because Doe attached Defendants’ written consent to the amended pleading to his filing,
he did not need to seek the Court’s permission to file the amended pleading. Fed. R. Civ. P.
15(a)(2). Doe states that he attempted to file the amended pleading under this rule, but was told
that a motion to amend was required. (Doc. No. 15.)
2
Two days after filing the motion to amend, Doe filed a motion for temporary restraining
order. (Doc. No. 10.) Doe served the motion on the State, Haslam, Slatery, and Tate. (Doc. No.
10, PageID# 92.) Doe states in the motion that “[a] copy of this document shall be served on all
new parties with service of process.” (Id. at PageID# 92.) The record does not reflect whether
service of any of the new parties has been effected. In his reply brief, Doe states that he “has every
intention of seeking a hearing after all parties have been served with the Amended Complaint and
Motion for TRO.” (Doc. No. 16, PageID# 140.)
The motion for temporary restraining order seeks the following relief:
1.
Dickson County Chancery Court, Hon. David Wolfe, and their agents and
officers, shall seal the court file and any information or document
identifying the patties from public view, including prior dockets calendars,
in Dickson County Chancery Court case number 18CV80. Court file
materials shall be available to the patties in this action for inspection.
2.
Further, the Dickson County General Sessions Court, Hon. Craig Monsue,
shall seal the court file and any court documents that identify the Doe family
members, in Case Number 22GSI-2018-CV-368
3.
Until further order of this Court, there shall be no further proceedings in the
Chancery Court of Dickson County regarding case number 18CV80, except
orders necessary to effectuate this Court’s orders and proceedings directed
or permitted by order of this Court, this includes judicial recusal or case
reassignment.
4.
All Parties, together with their agents, employees, partners, affiliates, subcontractors, appointees, and the like, are enjoined from publically
identifying the Doe parties.
(Doc. No. 10, PageID# 90.)
Six days after filing the motion for a temporary restraining order, Doe filed a motion for a
preliminary injunction. (Doc. No. 11.) The motion for a preliminary injunction asks the Court to
order as follows:
1.
Dickson County Chancery Court and Hon. David Wolfe shall seal the court
file and any information or document identifying the parties from public
3
view, including prior dockets calendars, in Dickson County Chancery Court
case number 18CV80. Court file materials shall be available to the parties
in this action for inspection.
2.
Further, the Dickson Count Chancery Court and Hon. Craig Monsue shall
seal the court file and any court documents that identify the Doe family
members, in case number 22GSI-2018-CV-368.
3.
Until further order of this Court, there shall be no further proceedings in the
Chancery Court of Dickson County regarding case number 18CV80, except
orders necessary to effectuate this Court's orders and proceedings directed
or permitted by order of this Court, this includes judicial recusal and case
reassignment.
4.
All Parties are enjoined from identifying the Doe parties publicly or to any
third party.
5.
The Parties are enjoined from enforcement of the protective order provision
that John Doe have “No Contact” with Johnson Doe I, II, & III.
6.
John Doe’s rights under Tenn. Code Ann. § 36-6-101(3)(B) are restored
during the pendency of this matter.
7.
Further, no party shall enforce or impose on John Doe a requirement that
his visitation with Johnson Does I, II, & III be supervised.
8.
Without making any determinations as to the merits of a custody or
placement decision, the Court notes as a matter of state law, John Doe was
entitled to entry of his 2nd Amended Proposed Temporary Order by default.
The Dickson County Chancery Court, Hon. David Wolfe, so shall enter
John Doe’s temporary order by default, until further order of this Court.
John and Jane Doe are free to make changes, by mutual agreement, for
convenience, in writing.
9.
These preliminary injunctions shall apply to the named Parties together with
their agents, employees, partners, affiliates, sub-contractors, appointees, co
conspirators, and the like.
(Doc. No. 11, PageID# 93–94.)
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II.
Legal Standard
Federal Rule of Civil Procedure 65(b) provides for the issuance of a temporary restraining
order without notice to the adverse party only if “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)(1)(A). The rule
further requires that the moving party’s attorney must certify in writing efforts made to give notice
and why notice should not be required. Fed. R. Civ. P. 65(b)(1)(B). This Court’s Local Rule
65.01(c) requires “strict compliance” with Rule 65 and states that a pro se moving party, like
counsel, must “certify in writing the efforts made to give notice of the request for a TRO and the
reasons why notice should not be required.” M.D. Tenn. Rule 65.01(c) (compliance with Federal
Rule 65). Local Rule 65.01(b) requires that each motion for a temporary restraining order “must
be accompanied by a separately filed affidavit or verified written complaint, a memorandum of
law, and a proposed order.” M.D. Tenn. Rule 65.01(b) (written complaint and memorandum).
“[T]he preliminary injunction is an extraordinary remedy involving the exercise of a very
far-reaching power, which is to be applied only in the limited circumstances which clearly demand
it,” Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000), and is “never awarded as of right,”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “The purpose of a preliminary
injunction is merely to preserve the relative positions of the parties until a trial on the merits can
be had.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542
(6th Cir. 2007). In determining whether to grant a preliminary injunction or temporary restraining
order, the Court must consider whether the plaintiff has established: (1) a “strong” likelihood of
success on the merits; (2) that he will suffer irreparable injury absent injunctive relief; (3) that
issuance of an injunction would not cause substantial harm to others; and (4) that the public interest
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would be served by the issuance of the injunction. Leary, 228 F.3d at 736; see also Ohio
Republican Party v. Brunner, 543 F.3d. 357, 361 (6th Cir. 2008) (noting that the same four factors
apply in determining whether to grant a temporary restraining order). “These factors are to be
balanced against one another and should not be considered prerequisites to the grant of a
preliminary injunction.” Leary, 228 F.3d at 736; Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir.
2000). However, “the demonstration of some irreparable injury is a sine qua non for issuance of
an injunction.” Patio Enclosures, Inc., 39 F. App’x at 967 (citing Friendship Material, Inc.v.
Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982)). Moreover, “a finding that there is simply
no likelihood of success on the merits is usually fatal.” Gonzales v. Nat’l Bd. of Med. Exam’rs,
225 F.3d 620, 625 (6th Cir. 2000) (citing Mich. State AFL–CIO v. Miller, 103 F.3d 1240, 1249
(6th Cir. 1997)).
“[T]he 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, 228 F.3d at 739.
This already-stringent burden is even more difficult to meet where, as here, the plaintiff seeks an
injunction not to maintain the status quo, but to obtain affirmative relief. Courts have identified
three types of particularly disfavored preliminary injunctions: “(1) preliminary injunctions that
alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that
afford the movant all the relief that it could recover at the conclusion of the trial on the merits.”
Taylor v. Corizon Med. Corp., No. 2:17-cv-12271, 2018 WL 2437561, at *2 (E.D. Mich. May 10,
2018) (citing Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005)). Motions for these
types of preliminary injunctions must be even more closely scrutinized. Id.
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III.
Analysis
Doe’s motion for a temporary restraining order must be denied because it does not comply
with Federal Rule of Civil Procedure 65(b) or this Court’s Local Rule 65.01. Most importantly,
Doe’s motion is not accompanied by an affidavit or a verified complaint. Without these
accompanying sworn statements, the Court lacks a factual record on which it can grant the
requested relief. 3 Doe also has not filed a memorandum of law in support of his motion for a
temporary restraining order and does not address any of the factors that the Court must consider
before granting such relief. 4 Finally, although Haslam, Slatery, and Tate had been served and
appeared when the motion for a temporary restraining order was filed (Doc. Nos. 6, 7), Doe does
not state his efforts to give notice to the other defendants or argue why their notice should not be
required. Doe states only that “[t]he Chancery Court and Hon. David Wolfe are likely to be
represented by the Office of the Attorney General, who is receiving notice herein.” (Doc. No. 10,
PageID# 91.) For all of these reasons, the motion for a temporary restraining order should be
denied.
A preliminary injunction may only be issued after notice to any adverse party. Fed. R. Civ.
P. 65(a). The docket does not reflect that any of the seven new defendants named in the amended
complaint have been served or appeared in this action. “[E]ven if one or all of the Defendants
received notice of the motion for injunctive relief, since service of process has not been
3
Doe has filed an affidavit in support of his motion for a preliminary injunction. (Doc. No.
32.) Doe states that he attempted to file the affidavit under seal when he filed the motion for a
preliminary injunction on August 22, 2018, but was not allowed to do so by the Court’s electronic
filing system. (Id. at PageID# 314.)
4
Doe also has not provided a proposed order, although his motion does set out what he
would like a temporary restraining order to provide. (Doc. No. 10, PageID# 90.)
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accomplished, a preliminary injunction cannot be issued.” Koetje v. Norton, No. 13-CV-12739,
2013 WL 8475802, at *2 (E.D. Mich. Oct. 23, 2013); see also Zenith Radio Corp. v. Hazeltine
Research, Inc., 395 U.S. 100, 110 (1969) (holding that an injunction was improper because the
defendant had not been served with process); R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943, 958 (4th
Cir.1999) (service of process is a prerequisite to the issuance of an enforceable preliminary
injunction). Doe appears to recognize this fact and states that he intends only to seek a hearing
after all parties have been served. (Doc. No. 16, PageID# 140.) At best, therefore, his motion is
premature.
His motion faces a second hurdle, however, that requires its denial at this juncture.
Although Doe appears to reference defendants and claims made only in the amended complaint in
his motion for a preliminary injunction, the amended complaint had not yet been docketed. It
further appears that the original defendants may have based their response in opposition on the
understanding that the amended complaint was not the operative pleading. (Doc. No. 19, PageID#
153 n.1.) Because the amended complaint now controls—and because the Court cannot find with
certainty which pleading the parties considered in their motion and response—the motion for a
preliminary injunction must be found moot and denied without prejudice to refiling. See
Mastronardi Produce, Inc. v. Lakeside Produce, Inc., Mastronardi Produce, Inc. v. Lakeside
Produce, Inc., No. 15-12331, 2016 WL 8115652, at *1 (E.D. Mich. Feb. 10, 2016) (granting
plaintiff’s request to file a first amended complaint, striking previously filed motion for
preliminary injunction, and ordering plaintiff to file a new motion for preliminary injunction based
on the first amended complaint); Watson v. Wright, No. 08-CV-00960 A M, 2010 WL 5072135,
at *1 (W.D.N.Y. Nov. 18, 2010) (recommending that plaintiff’s motion for preliminary injunction
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based on fourth amended complaint, for which leave had not yet been granted, be denied without
prejudice to renewal upon granting of that leave).
IV.
Conclusion
For these reasons, the Magistrate Judge RECOMMENDS that Doe’s motion for temporary
restraining order (Doc. No. 10), motion for preliminary injunction (Doc. No. 11), and motion for
hearing on the motions for temporary restraining order and preliminary injunction (Doc. No. 29)
be DENIED WITHOUT PREJUDICE to refiling in light of the amended complaint.
Any party has fourteen days after being served with this report and recommendation to file
specific written objections. Failure to file specific objections within fourteen days of receipt of this
report and recommendation can constitute a waiver of appeal of the matters decided. Thomas v.
Arn, 474 U.S. 140, 155 (1985); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004). A party
who opposes any objections that are filed may file a response within fourteen days after being
served with the objections. Fed. R. Civ. P. 72(b)(2).
Entered this 26th day of October, 2018
____________________________________
ALISTAIR E. NEWBERN
United States Magistrate Judge
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