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Lovett v. Barney

United States District Court, S.D. Ohio, Western Division

March 8, 2017

KELVIN LOVETT, Plaintiff,
v.
BYRON BARNEY, et al., Defendants.

          Barrett, J. Litkovitz, M.J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge

         Plaintiff, an inmate at the Southern Ohio Correctional Facility ("SOCF"), brings this pro se prisoner civil rights action under 42 U.S.C. § 1983 alleging that SOCF employees Correctional Officer Brian Barney and Lt. Robert Setty used excessive force against him in September 2014 in retaliation for his use of prison grievance procedures.[1] (Doc. 3). This matter is before the Court on plaintiffs renewed motion for an injunction pendente lite (Doc. 135).

         In his motion, plaintiff asserts that in February 2017, non-defendants C/O John Doe, C/O Robertson, C/O Ally, Sgt. Chirm, C/O Fry, and Lt. Eaches sexually assaulted and/or used excessive force against him. (See Doc. 135 at 2-4). Plaintiff seeks an injunction ordering his transfer to another correctional facility. (Id. at 6).

         In determining whether to issue a preliminary injunction, the Court must balance the following factors:

1. Whether the party seeking the injunction has a "strong" likelihood of success on the merits;
2. Whether the party seeking the injunction would otherwise suffer irreparable injury;
3. Whether an 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). The four factors are not prerequisites, but must be balanced as part of a decision to grant or deny injunctive relief. Id. A preliminary injunction is an extraordinary remedy that should only be granted if the movant carries his burden of proving that the circumstances clearly demand it. Id. at 739.

         Here, plaintiff is not entitled to a preliminary injunction or temporary restraining order. The purpose of a preliminary injunction is to maintain the relative positions of the parties until proceedings on the merits can be conducted. Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also S. Milk Sales, Inc. v. Martin, 924 F.2d 98, 102 (6th Cir. 1991). Thus, "a party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." Colvin v. Caruso, 605 F.3d 282, 300 (6th Cir. 2010) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)). "This is because '[t]he purpose of interim equitable relief is to protect the movant, during the pendency of the action, from being harmed or further harmed in the manner in which the movant contends [he] was or will be harmed through the illegality alleged in the complaint.'" Id. (quoting Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997)). A court may not grant a preliminary injunction when the issues raised in the motion are entirely different from those raised in the complaint. See Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997); Omega World Travel, Inc., 111 F.3d at 16; Stewart v. U.S. Immigration & Naturalization Serv., 762 F.2d 193, 198-99 (2d Cir. 1985).

         In this case, plaintiffs motion is premised on a new claim against parties who are not defendants to this action and over whom this Court does not have jurisdiction. See, e.g., Shavers v. Bergh, No. 2:07-cv-171, 2012 WL 1377169, at *2 (W.D. Mich. Mar. 29, 2012) (Report and Recommendation), adopted, 2012 WL 1377103 (W.D. Mich. Apr. 19, 2012) ("This court only has jurisdiction over the named defendants and does not have authority to issue an injunction against non-parties to this action."); Laster v. Pramstaller, Nos. 06-13508 & 05-71140, 2009 WL 497407, at *2 (E.D. Mich. Feb. 24, 2009) (Report and Recommendation), adopted, 2009 WL 790479 (E.D. Mich. Mar. 20, 2009) (finding the court had no power to adjudicate plaintiffs motion for injunctive relief because the court had no personal jurisdiction over non-defendants). Plaintiffs new claim concerning alleged acts of non-defendant correctional officers in February 2017 is entirely separate from the claim that defendant Barney used excessive force against him in September 2014. (See generally Doc. 3); see Kaimowitz, 122 F.3d at 43; Omega World Travel, Inc., 111 F.3d at 16; Stewart, 762 F.2d at 198-99. If plaintiff wishes to contest the alleged February 2017 actions of these non-defendants, he must do so in a new lawsuit.

         Based on the foregoing, it is RECOMMENDED that plaintiffs renewed motion for an injunction pende ...


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