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Whiteside v. Parrish

January 4, 2007

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 in which plaintiff Norman V. Whiteside ("plaintiff"), an inmate of the State of Ohio Department of Rehabilitation and Correction ("ODRC"), alleges retaliation, discrimination and denial of his right to access the courts. Complaint ¶ 1. 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 for Preliminary Injunction - Urgent Motion Per S.D. Ohio Local Rule 7.1(b)(3) ("Plaintiff's Second Motion for Preliminary Injunction"), Doc. No. 56, and plaintiff's request for oral argument on this motion. For the reasons that follow, plaintiff's motion and request for oral argument are both DENIED.

I. BACKGROUND

On September 27, 2006, plaintiff filed Plaintiff's Second Motion for Preliminary Injunction, Doc. No. 56, requesting that defendants be required to allow plaintiff meaningful access to his legal materials and enjoined from housing plaintiff in the segregation unit. Id. at 1. Specifically, plaintiff claims that defendants deny him his constitutional right of access to the courts by denying him access to his legal materials that are necessary in litigating three lawsuits currently pending in the Ohio Court of Claims. Plaintiff's Reply to Defendants' Memorandum in Opposition to Plaintiff's Second Motion for TRO/PI - Urgent Motion Per S.D. Ohio Local Rule 7.1(b)(3) ("Plaintiff's Reply") at 1-3, 7. Plaintiff also contends that his legal materials have been unlawfully confiscated and that defendants are likely to destroy or misplace them, causing him irreparable injury. Id. at 7.In addition, plaintiff claims that he was falsely accused of forging a document that he submitted to this Court. Id. at 6-8. Inviting the Court to make handwriting comparisons, plaintiff maintains that the document is not forged, or that he was unaware of any forgery. Id. Plaintiff was convicted by a Rules Infraction Board ("RIB") panel of forging, possessing or presenting a forged or counterfeit document and of possessing the property of other inmates; plaintiff was ordered to segregation. See Affidavit of Melody Haskins ¶ 5 attached to Defendants' Memorandum in Opposition to Plaintiff's Second Motion for Temporary Restraining Order and/or for Preliminary Injunction - Urgent Motion Per S.D. Ohio Local Rule 7.1(b)(3) ("Defendants' Memorandum in Opposition"). Plaintiff argues that the RIB panel lacked sufficient evidence to convict him and that his placement in segregation is in reality retaliation for bringing lawsuits against prison officials. Plaintiff's Reply at 7-8.

II. PRELIMINARY INJUNCTION STANDARD

Plaintiff's motion is governed by F.R. Civ. P. 65.*fn1 The decision whether or not to grant a request for interim injunctive relief falls within the 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 consideration of 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)). Although these four considerations are factors to be balanced, 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), the first factor is often determinative:

... [C]courts have often recognized that the first factor is traditionally of greater importance than the remaining three. See Roth v. Bank of the Commonwealth, 583 F.2d 527, 537 (6th Cir.1978). In fact, the Sixth Circuit has held that when the proponent of the injunctive relief has no chance of success on the merits of the claim, the Court may dismiss the motion without considering the other three factors. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997). Failure to do so is reversible error. See id.; Sandison v. Michigan High School Athletic Ass'n, 64 F.3d 1026, 1037 (6th Cir.1995).

Stanley v. Ohio Dep't of Rehab. & Corr., Case No. C2-02-178, 2002 U.S. Dist. LEXIS 21996, *8-9 (S.D. Ohio August 12, 2002) (J. Sargus) (denying motion for injunctive relief after evaluation only of chance of success on the merits factor).

III. DISCUSSION

Plaintiff's request for interim injunctive relief is based on his allegations that defendants have refused to allow him access to necessary legal materials and because of the feared loss and/or destruction of those materials. Plaintiff further alleges that defendants unlawfully placed him in segregation in retaliation for having engaged in litigation. Plaintiff's Second Motion for Preliminary Injunction at 1. Turning to the first factor of the four-part test, the Court concludes that plaintiff has demonstrated little opportunity for success on the merits of these claims.

First, although prisoners enjoy a constitutional right of access to the courts, Bounds v. Smith, 430 U.S. 817, 821 (1977), that right is not without limit, Lewis v. Casey, 518 U.S. 343, 349 (1996). The United States Court of Appeals for the Sixth Circuit explains that the constitutional ...


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