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Kensu v. Borgerding

United States District Court, E.D. Michigan, Southern Division

July 3, 2018

TEMUJIN KENSU, Plaintiff,
v.
WILLIAM BORGERDING, M.D.,, Defendant.

          Linda V. Parker United States District Judge

          REPORT AND RECOMMENDATION ON PLAINTIFF'S EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (Dkt. 112)

          Stephanie Dawkins Davis United States Magistrate Judge

         I. PROCEDURAL HISTORY

         Plaintiff brought this action under 42 U.S.C. § 1983. (Dkt. 1). District Judge Linda V. Parker referred pretrial matters in this case to the undersigned on May 10, 2016. (Dkt. 30). On June 29, 2018, plaintiff filed the instant emergency motion for temporary restraining order and preliminary injunction to prevent plaintiff's transfer to another prison. (Dkt. 112). On July 2, 2018, the undersigned held a telephone conference with the parties' attorneys, followed by a hearing on the merits of plaintiff's motion.

         II. FACTUAL BACKGROUND AND PARTIES' ARGUMENTS

         Plaintiff's evidence consisted of information proffered by plaintiff's counsel. According to counsel, the Michigan Department of Corrections (MDOC) is planning to transfer plaintiff to another prison in retaliation for his litigation against the MDOC. Plaintiff learned of his impending transfer when he received a letter from the warden that contained a statement wishing him well at his new facility. Plaintiff's counsel stated that there is an allegation that Health Unit Manager Cooper has sexually harassed or abused plaintiff, and plaintiff will be transferred to keep him out of harm's way, according to the MDOC. However, plaintiff asserts that the real reason for the transfer is to retaliate against plaintiff for sending kites and for his litigation. Plaintiff notes that neither he nor Cooper filed a complaint of sexual abuse or harassment, and plaintiff asserts that there was no abuse or harassment. Plaintiff's counsel also notes that Cooper testified at a hearing on another of plaintiff's motions for temporary restraining order, and her testimony supported plaintiff's allegations of retaliation from certain medical personnel. Cooper also had been attempting to assist plaintiff in obtaining a special diet for his medical needs. As such, plaintiff believes the transfer is also in retaliation against Cooper. According to plaintiff, MDOC's goal is to move plaintiff far enough away to make it harder for him to meet with his counsel.

         MDOC's counsel, Mr. Dean, proffered information concerning the reason for plaintiff's scheduled transfer, indicating that the impending transfer is being conducted in accordance with MDOC policy based on allegations that plaintiff was subjected to sexual abuse by a corrections employee. According to Mr. Dean, at least one third party overheard an interaction between plaintiff and Cooper which lead the third party to believe that plaintiff had been, or would be, subjected to sexual abuse or harassment. The third party reported his/her observations to prison officials. The third-party allegations triggered an investigation by the MDOC under the Prison Rape Elimination Act (“PREA”) and MDOC policy directive 03.03.140. According to MDOC, PREA and the policy directive provide for the transfer or removal of either the prisoner-victim or the prison employee-abuser during the investigation. In this instance, according to Mr. Dean, MDOC decided to transfer plaintiff instead of Cooper because even if Cooper were removed from the facility or from plaintiff's care, as Health Unit Manager, the personnel who would be left to look after plaintiff's health care work under Cooper. Thus, MDOC is concerned that Cooper's subordinates might take actions to undermine the investigation or retaliate against plaintiff.

         III. ANALYSIS AND RECOMMENDATIONS

         A. Legal Standards for Temporary Restraining Order

         Fed. R. Civ. P. 65 provides that the Court May issue an order for injunctive relief “only on notice to the adverse party.” Defendants received notice of the instant matter upon plaintiff's electronic filing of the instant motion. In determining whether injunctive relief is proper, the court considers four factors: (1) whether plaintiff has a strong likelihood of success on the merits; (2) whether plaintiff has shown irreparable injury; (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. See Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005). The same standard applies to a motion for temporary restraining order as to a motion for preliminary injunction. W. Michigan Family Homes LLC v. United States Dep't of Agric., 2013 WL 12109437, at *1 (W.D. Mich. Nov. 26, 2013), citing Summit County Democratic Central and Executive Committee v. Blackwell, 388 F.3d 547, 550 (6th Cir. 2004). Although no single factor is controlling, the likelihood of success on the merits is often the predominant consideration. Gonzales v. National Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000) (“[A] finding that there is simply no likelihood of success on the merits is usually fatal.”).

         Plaintiff bears the burden of demonstrating entitlement to an injunction, and the burden is a heavy one because injunctive relief is “an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban Cnty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002). Indeed, the “proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion.” Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000); see also McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012) (“The proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion because a preliminary injunction is an extraordinary remedy.”). “The four considerations applicable to preliminary injunction decisions are factors to be balanced, not prerequisites that must be met.” Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 230 (6th Cir. 2003) (quoting Michigan Bell Telephone Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001)). A plaintiff must always, however, show irreparable harm before a preliminary injunction may issue. Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982).

         B. Analysis

         In this instance, the undersigned concludes that plaintiff has not met his burden to ...


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