United States District Court, S.D. Ohio, Eastern Division
KEVIN A. TOLLIVER, Plaintiff,
WARDEN NOBLE, Defendant.
C. Smith Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
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.
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
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).
Motion is now ripe for resolution. (See Docs. 34,
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.
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).
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
[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
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.”).
Court considers each of Plaintiff's requests in turn.
No. Prison Transfer ...