United States District Court, E.D. Michigan, Southern Division
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
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.
FACTUAL BACKGROUND AND PARTIES' ARGUMENTS
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.
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
ANALYSIS AND RECOMMENDATIONS
Legal Standards for Temporary Restraining Order
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.”).
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
instance, the undersigned concludes that plaintiff has not
met his burden to ...