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Whiteside v. Parrish

September 13, 2006

NORMAN V. WHITESIDE, PLAINTIFF,
v.
JONDREA PARRISH., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Norah McCann King

OPINION AND ORDER

This is a civil rights action under 42 U.S.C. § 1983 ("Section 1983") brought by plaintiff Norman V. Whiteside ("plaintiff"), an inmate of the State of Ohio Department of Rehabilitation and Correction ("ODRC"). With the consent of the parties, 28 U.S.C. § 636(c), this matter is before the Court on plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction ("Plaintiff's Motion for Preliminary Injunction"), Doc. No. 31. For the reasons that follow, plaintiff's motion is DENIED.

I.

On March 24, 2005, plaintiff filed this action alleging retaliation, discrimination and denial of access to courts. Complaint ¶ 1. Specifically, plaintiff alleges that as a result of filing lawsuits against employees of the Madison Correctional Institution ("MaCI"), its staff "launched a wave of retaliatory attacks against" him and illegally confiscated his property. Id. ¶ 11. Plaintiff also alleges that he was not allowed to keep certain legal material and as a result he could not use the materials in a deposition, present it to the parole board or use it in a medical malpractice case. Id. ¶ 24. Finally, plaintiff alleges that defendants ignored institutional rules, policies and procedures in order to advance a retaliatory and discriminatory agenda against him. Id. ¶ 26.

Plaintiff currently is involved in four lawsuits, which each require certain filing fees to be paid to the courts in which they are pending. Affidavit of Diana Mathews*fn1 ("Mathews Aff.") ¶ 5 attached to Defendants' Memorandum in Opposition to Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction ("Defendants' Memorandum Contra"). ODRC is responsible for debiting prisoners' accounts to pay the courts in which a prisoner initiates a lawsuit. Doc. No. 1, Application and Affidavit by Incarcerated Person to Proceed Without Prepayment of Fees.

On July 25, 2006, plaintiff filed Plaintiff's Motion for Preliminary Injunction, Doc. No. 15, arguing that defendants have purposely improperly debited his prison account and requesting that the Court issue an order requiring defendants to reimburse his prison account and to order defendants not to make improper deductions from his account in the future. On August 4, 2006, defendants filed Defendants' Memorandum Contra, Doc. No. 36, and, on August 17, 2006, plaintiff filed his reply in support of his motion ("Plaintiff's Reply"), Doc. No. 40.

II.

A. Standard

Plaintiff moves under Fed. R. Civ. P. 65(a) and (b), which permit a party to seek injunctive relief if he believes he will suffer irreparable harm or injury. A temporary restraining order relates only to restraints sought without written or oral notice to the adverse party or his attorney, whereas the application is properly treated as one for a preliminary injunction where the adverse party was given notice. First Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 650 (6th Cir. 1993) (citing Reed v. Cleveland Bd. of Educ., 581 F.2d 570, 573 (6th Cir. 1978)); Fed. R. Civ. P. 64(a), (b). In this action, defendants were noticed of plaintiff's intent to seek injunctive relief, and indeed, responded in opposition to the request. Thus, the Court will address plaintiff's motion as one for a preliminary injunction.

The decision whether or not to issue a preliminary injunction falls within sound discretion of the district court. Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982). A preliminary injunction 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.

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)). These four considerations are not required elements of a conjunctive test but are rather factors to be balanced. In re Delorean Motor Co., 755 F.2d at 1229; Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001); Monongahela Power Co. v. Schriber, 322 F. Supp.2d 902, 918 (S.D. Ohio 2004) (J. Sargus).

B. Discussion

Turning to the first factor of the four-part test, the Court, upon review, concludes that plaintiff has failed to establish the likelihood of success on the merits of his claim because plaintiff's request for reimbursement is moot and because it is highly ...


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