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Tolliver v. Noble

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

June 21, 2019

KEVIN A. TOLLIVER, Plaintiff,
v.
WARDEN NOBLE, Defendant.

          George C. Smith Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff Kevin Tolliver's Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 34) is before the Court. For the reasons that follow, it is RECOMMENDED that the Motion be DENIED. Defendant is DIRECTED to respond to Plaintiff's Offer of Settlement (Doc. 59) within 14 days of the date of this Report and Recommendation. Defendant may file a notice with the Court indicating compliance with this directive but need not file the response on the public docket.

         I. BACKGROUND

         Plaintiff, an inmate at Pickaway Correctional Institution (“PCI”), seeks injunctive relief from this Court in order to, in Plaintiff's words, “protect” his ability to litigate. (Doc. 34 at 1). More precisely, Plaintiff asks the Court to order the following:

1. With the exception of medical trips, prevent Defendants from moving Plaintiff from his current institution and housing assignment;
2. Require Defendants to deliver two legal boxes to Plaintiff at his housing location for inventory, consolidation, and storage in the vault, with monthly access permitted to exchange materials with the smaller cardboard legal box kept at his bunk area;
3. Require Defendants to “restore” Plaintiff's religiously necessary Halal/Kosher diet;
4. Require Defendants to provide Plaintiff with a copy of any and all electronically filed documents in each and every grievance matter he has filed since his arrival at PCI;
5. Require Defendants to stop ordering Plaintiff to remove his religious headgear based on its color.

(Id. at 1-5).

         The Motion is now ripe for resolution. (See Docs. 34, 46, 58).

         II. STANDARD

         “A preliminary injunction is an extraordinary measure that has been characterized as ‘one of the most drastic tools in the arsenal of judicial remedies.'” ACLU v. McCreary Cty., 354 F.3d 438, 444 (6th Cir. 2003) (quoting Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264, 273 (2d Cir. 1986)). And, in cases like this one, “where a prison inmate seeks an order enjoining state prison officials, the Court is required to proceed with the utmost care and must be cognizant of the unique nature of the prison setting.” Roden v. Floyd, No. 2:16-CV-11208, 2018 WL 6816162, at *2-3 (E.D. Mich. Nov. 13, 2018), report and recommendation adopted, No. 16-11208, 2018 WL 6815620 (E.D. Mich. Dec. 27, 2018).

         When considering a motion for preliminary injunction, a district court must balance four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.” City of Pontiac Retired Employees Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (citation and internal quotation marks omitted).

         Under the first factor, to establish a strong likelihood of success on the merits, the movant must demonstrate “more than a mere possibility” of success. Nken v. Holder, 556 U.S. 418, 435 (2009). This requires, “at a minimum, ” a movant to show “serious questions going to the merits.” Dodds v. United States Dep't of Educ., 845 F.3d 217, 221 (6th Cir. 2016) (citation and internal quotation marks omitted). The first factor is often determinative:

[C]ourts 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., No. C2-02-178, 2002 WL 3140935, at *3 (S.D. Ohio August 12, 2002) (denying motion for injunctive relief after evaluation only of chance of success on the merits factor); see also City of Pontiac Retired Employees Ass'n, 751 F.3d at 430 (“When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor.”).

         III. DISCUSSION

         The Court considers each of Plaintiff's requests in turn.

         A. No. Prison Transfer ...


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