IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Benjamin Hendricks, 

Plaintiff, 

v. Case No. 2:11-cv-399

Jeffrey Norman Hazzard, et al., JUDGE MICHAEL H. WATSON

 Magistrate Judge Kemp

Defendants. 

REPORT AND RECOMMENDATION AND ORDER

This matter is before the Court to consider a motion for a

temporary restraining order and preliminary injunction filed by

plaintiff Benjamin Hendricks on April 15, 2013. Defendants have

filed a response and the motion has been fully briefed. For the

following reasons, it will be recommended that the motion be

denied. Also, before the Court are a motion to appoint counsel

and a motion to amend the scheduling order. The motion for

appointment of counsel will be denied and the motion to amend the

scheduling order will be granted.

I. Background

The facts of this case have been set forth in detail in

several previous orders of the Court and will not be repeated at

length here. Briefly, however, for purposes of the current

motion, following rulings on motions to dismiss and for summary

judgment, two claims remain in this case. First, there is a

retaliation claim against defendant Jeffrey Norman Hazzard

relating to the alleged destruction of Mr. Hendricks’ legal

materials on June 18, 2010. Further, there is a claim against

Gene Wessell, Carole Crocket-Harris and Mary Lawrence in their

official capacities seeking injunctive and declaratory relief to

address alleged ongoing violations of constitutional rights at

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the Pickaway Correctional Institution. The amended complaint

also names Ernie Moore, Gary Mohr and Roger Roddy in their

official capacities, but there is no indication on the Court’s

docket that service has ever been made on these defendants. 

II. Mr. Hendricks’ Motion for a TRO or Preliminary Injunction

Mr. Hendricks, who apparently was housed in the segregation

portion of the Frazier Medical Center at the Pickaway

Correctional Institution at the time he filed his motion,

contends that a TRO or preliminary injunction moving him to a

different housing assignment is necessary to protect him from Mr.

Hazzard. Mr. Hendricks asserts that he fears for his safety and

asks to be placed in either the Frazier Health Center Long Term

Care facility on the second floor (where he has been housed for

years) or the second floor of the Franklin Medical Center Long

Term Care facility. The gist of Mr. Hendricks’ motion is that

Mr. Hazzard has a history of threatening and retaliating against

him and the administration has not taken any action to stop this

behavior. He contends that, most recently, Mr. Hazzard has

suggested to Mr. Hendricks’ cellmate in segregation, a member of

the Aryan Brotherhood, that he physically attack Mr. Hendricks,

apparently because, in light of his position, Mr. Hazzard is

unable to do it himself. 

Besides offering a history of incidents involving Mr.

Hazzard, Mr. Hendricks, in the declaration attached to his

motion, discusses the two relatively recent incidents which

appear to provide the impetus for his motion. As Mr. Hendricks

explains, the first of these events occurred on January 23, 2013,

and led to his being placed in the segregation cell with the

“captain” of the Aryan Brotherhood. Hendricks’ Declaration,

¶¶16-18. According to Mr. Hendricks, he was placed in the

segregation unit after having been found guilty by the Rules

Infraction Board of establishing an inappropriate relationship

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with a prison chaplain who had attempted to help him with his

medical problems. Mr. Hendricks contends that he was not

present at his local control hearing. Id. 

 As Mr. Hendricks further explains in his declaration, the

second event occurred on March 29, 2013, when Mr. Hazzard was

working in Mr. Hendricks’ living area. According to Mr.

Hendricks, he had filed an informal complaint following his

cellmate’s disclosure of Mr. Hazzard’s suggestion of a physical

attack. Apparently not having received a response to this

complaint, Mr. Hendricks asked an on-duty lieutenant to help him

with getting the complaint addressed. Mr. Hendricks contends

that, when Mr. Hazzard became aware of this request for help, he

threatened Mr. Hendricks with a conduct report and harassed him.

Hendricks’ Declaration, ¶¶22-23. 

Mr. Hendricks’ 41-page exhibit attached to his motion

consists of, in addition to his declaration, affidavits from

various inmates signed and dated in 2010 and 2011, and various

grievance documents from 2011-2013. This information reveals, in

part, that on March 29, 2013, Mr. Hazzard issued a conduct report

to Mr. Hendricks for cursing and threatening Mr. Hazzard’s

safety. A disposition of the Rules Infraction Board dated April

9, 2013, indicates that Mr. Hendricks was found guilty of

disrespecting Mr. Hazzard by calling him names and threatening

bodily harm. Mr. Hendricks offered a defense, but the Board

found that his witnesses were not credible and accepted the

conduct report as written. Mr. Hendricks was placed in

disciplinary control on March 29, 2013. Mr. Hendricks’

confinement in disciplinary control was scheduled to end on April

12, 2013, at which point he was to be placed back in local

control. On April 9, 2013, Mr. Hendricks filed a notice of

disciplinary appeal claiming that there was no evidence to

support the Board’s decision because the Board relied exclusively

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on the conduct report issued by Mr. Hazzard.

In response, defendants have submitted a declaration from

Ms. Lawrence. According to this declaration, Mr. Hendricks was

issued a conduct report on January 20, 2013, alleging an

unauthorized relationship with a staff member. Declaration at

¶3. The Rules Infraction Board found Mr. Hendricks guilty of the

violation and Mr. Hendricks was placed in disciplinary control

and eventually local control. Id. His security classification

was raised from level 2 to level 3. Id. at ¶4. Prison officials

are considering transferring Mr. Hendricks to the Ross

Correctional Institution but the transfer has been delayed

pending consideration of whether his medical needs can be met at

Ross. Id. Upon Mr. Hendricks’ release from the segregation

portion of the Frazier Medical Center, he is scheduled to be

housed in the general population at Pickaway. Id. at ¶5. On

April 8, 2013, Mr. Hendricks approached Ms. Lawrence and alleged

the harassment by Mr. Hazzard. Id. at ¶6. Ms. Lawrence waived

the requirement for Mr. Hendricks to file an informal complaint

and allowed him to submit a formal grievance directly to her. Id. 

She investigated Mr. Hendrick’s allegations, found them to be

without merit, and denied his formal complaint. Id. at ¶13. 

Relying on this declaration, defendants argue that Mr.

Hendricks’ factual allegations of harassment are without merit

and that, regardless, he has not met the criteria required for

the issuance of a TRO or preliminary injunction. Specifically,

defendants contend that Mr. Hendricks cannot succeed on any claim

of retaliation arising from the events of March 29, 2013, because

he was found guilty of a rule violation by the Rules Infraction

Board. With respect to any allegations of threats or “general

incivility,” defendants argue that verbal abuse does not rise to

the level of a constitutional violation. Further, they contend

that Mr. Hendricks has not demonstrated that he will suffer

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irreparable harm if his motion is not granted. Finally, they

argue that the public interest would not be served by granting

Mr. Hendricks’ motion. As they see it, the allegations of his

motion all occurred after Mr. Hendricks’ security level was

increased and he is attempting to “leverage this ongoing civil

action in order to interfere” with prison security concerns

arising from his failure to follow prison rules. They contend

that transfers are a routine part of prison operations and courts

should be reluctant to interfere. 

In reply, Mr. Hendricks takes issue with any suggestion by

the defendants that he is attempting to interfere with prison

security concerns. He contends that at the time he filed his

motion, he was unaware of any pending transfer. He also argues

that administrative prison regulations were not followed in

connection with either his disciplinary hearings or security

increase. Further, he challenges the credibility of Ms.

Lawrence’s investigation. Finally, he raises issues about his

health and his healthcare needs mandating that he be housed in a

healthcare facility, his willingness to submit to a polygraph

test, and the alleged proposal to transfer him to the general

prison population in light of his well-documented need for

medical care. He has attached 21 pages of exhibits to his reply

and has made an additional 38-page filing. He requests a

hearing on his motion. 

III. Analysis

At first glance, the motion for a TRO does not appear to be

related specifically to the remaining allegations of Mr.

Hendricks’ complaint in this case. As explained above, the

currently pending claims include a claim against Mr. Hazzard for

retaliation relating to the alleged destruction of Mr. Hendricks’

legal materials on June 18, 2010, and a claim for injunctive or

declaratory relief against the other defendants in their official

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capacities relating to alleged ongoing problems at the Pickaway

Correctional Institution. The current motion seeking placement

in either the Frazier Health Center Long Term Care facility or

the Franklin Medical Center Long Term Care facility appears to

relate primarily to recent events which occurred well after the

filing of the complaint. Mr. Hendricks’ motion may be denied on

this ground alone. 

As one court recently explained, a motion for a TRO or

preliminary injunction is not the proper vehicle for Mr.

Hendricks to use in an attempt to address other issues unrelated

to his original complaint. 

The purpose of such relief “is simply to preserve

the status quo.” United States v. Edward Rose & Sons,

384 F.3d 258, 261 (6th Cir. 2004); see University of

Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830,

68 L.Ed.2d 175 (1981); Tennessee Scrap Recyclers Ass'n

v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009). The

availability of a TRO or preliminary injunction is

inextricably intertwined with the merits of the

underlying claim. For this reason, one of the

principal factors in determining a plaintiff's

entitlement to relief is the likelihood that the

plaintiff will succeed on the merits of his underlying

claims. See United States v. Contents of Accounts, 629

F.3d 601, 606 (6th Cir. 2011). Hence, a party seeking

a preliminary injunction must show a relationship

between the irreparable injury claimed in the motion

and the claims pending in the complaint. See Colvin v.

Caruso, 605 F.3d 282, 298 (6th Cir. 2010). A motion

for a TRO or preliminary injunction is not the means by

which a plaintiff already in court on one claim can

seek redress for all other conditions of confinement

that he finds actionable. 

 Arrington v. Scott, 2013 WL 1080298 (W.D. Mich. January 7,

2013). Strictly interpreted, Mr. Hendricks’ motion is unrelated

to the underlying claim pending in this case. See Id.; see also

Ball v. Famiglio, 396 F. App'x 836, 837 (3d Cir. 2010) (plaintiff

not entitled to preliminary injunction on claims not pending in

complaint); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.

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1994).

At the same time, however, the Court recognizes that Mr.

Hendricks has attempted to suggest that Mr. Hazzard’s alleged

long-standing history of retaliatory behavior, including the

allegations underlying the complaint in this case, warrant the

relief requested in his motion - that he be housed in a facility

away from Mr. Hazzard and specifically in a long-term healthcare

facility. However, even construing Mr. Hendricks’ motion in this

way, and addressing it on its merits, Mr. Hendricks is not

entitled to the relief he seeks.

In deciding whether to grant a TRO or preliminary

injunction, the Court considers the same factors. Ohio

Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). 

These factors include: (1) whether the plaintiff is likely to

succeed on the merits, (2) whether the plaintiff is likely to

suffer irreparable injury absent an injunction, (3) whether the

preliminary injunction will cause substantial harm to others, and

(4) whether the public interest would be served by granting the

injunction. Hunter v. Hamilton County. Bd. of Elections, 635

F.3d 219, 233 (6th Cir. 2011); see also Rock & Roll Hall of Fame

v. Gentile Productions, 134 F.3d 749, 753 (6th Cir. 1998); Winter

v. Natural Res. Def. Council, 555 U.S. 7, 20, 129 S.Ct. 365, 172

L.Ed.2d 249 (2008). These factors are to be balanced, they are

not prerequisites that must be met. In re Eagle–Picher Indus.,

Inc., 963 F.2d 855, 859 (6th Cir. 1992); Dayton Area Visually

Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1480 (6th Cir.

1995). However, some demonstration of irreparable injury is

required for injunctive relief. Patio Enclosures, Inc. v.

Herbst, 39 F. App'x 964, 967 (6th Cir. 2002); see also Winter,

555 U.S. 22–23 (rejecting the notion that a mere “possibility” of

irreparable injury was sufficient for a preliminary injunction

and holding that “plaintiffs seeking preliminary relief [are

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required] to demonstrate that irreparable injury is likely in the

absence of an injunction”). Further, “a finding that there is

simply no likelihood of success on the merits is usually fatal.” 

Gonzalez v. Nat'l Bd. of Med. Exam'rs, 225 F.3d 620, 625 (6th

Cir. 2000).

Mr. Hendricks bears the burden of demonstrating that he is

entitled to a preliminary injunction. 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–Layette Urban Cnty.

Gov't, 305 F.3d 566, 573 (6th. Cir. 2002); Winter, 555 U.S. at

24. Further, 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). Additionally,

where a prison inmate seeks an order enjoining state prison

officials, courts are required to proceed carefully and with an

awareness of the unique nature of the prison setting. See

Kendrick v. Bland, 740 F.2d 432, 438, n. 3 (6th Cir. 1984). Mr.

Hendricks has not met his burden here.

First, at this point, the Court cannot determine whether Mr.

Hendricks has demonstrated a likelihood of success on the merits. 

In order to succeed on his retaliation claim, Mr. Hendricks must

establish that: (1) he was engaged in protected conduct; (2) an

adverse action was taken against him that would deter a person of

ordinary firmness from engaging in that conduct; and (3) the

adverse action was motivated, at least in part, by the protected

conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

1999)(en banc). Moreover, Mr. Hendricks must be able to prove

that the exercise of the protected right was a substantial or

motivating factor in Mr. Hazzard’s alleged retaliatory conduct. 

See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir. 2001),

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citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429

U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). The Court

simply cannot determine whether Mr. Hendricks’ allegations of

retaliation form the basis for a finding of a constitutional

violation. Additionally, with respect to his claims of verbal

harassment, inmates have no right to be free from verbal abuse

and minor threats. Ivey v. Wilson, 832 F.2d 950, 954-55 (6th

Cir. 1987). Consequently, on the current record, Mr. Hendricks’

likelihood of success on the merits does not weigh in favor of

granting a preliminary injunction. 

Further, Mr. Hendricks has not demonstrated that he will

suffer irreparable harm absent injunctive relief. At best, Mr.

Hendricks has alleged ongoing general harassment and threats by

Mr. Hazzard. To the extent that he has alleged more specifically

Mr. Hazzard’s suggestion of a physical attack, he also has

explained that this suggestion was reported to him and never

acted upon. As a result, Mr. Hendricks has not demonstrated the

imminence, or even the likelihood, of physical injury sufficient

to support the issuance of preliminary injunctive relief. See,

e.g., Johnson v. Payton, 2013 WL 1843979, *3 (E.D. Mich. April

10, 2013), affirmed 2013 WL 1843971 (E.D. Mich. May 1, 2013),

citing Winter, 555 U.S. 7 at 22; 11A C. Wright, A. Miller, M.

Kane, Federal Practice and Procedure: Civil 2d §2948 at 153–56

(West 1995) (“Speculative injury is not sufficient,” and “a

preliminary injunction will not be issued simply to prevent the

possibility of some remote future injury. A presently existing

actual threat must be shown.”). Consequently, this factor does

not weight in favor of granting a preliminary injunction. 

The third factor, frequently termed “the balance of

equities” also weighs against a preliminary injunction. See

Rhinehart v. Scutt, 2013 WL 28095, *5 (6th Cir. January 2, 2013). 

This factor requires the Court to weigh the interests of the

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defendants against Mr. Hendricks’ interest in being separated

from Mr. Hazzard. Because, as discussed above, Mr. Hendricks has

shown neither a likelihood of success on the merits or

irreparable harm, this balance weights against preliminary

injunctive relief. Id. 

Finally, no public interest would be served by granting Mr.

Hendricks the relief he seeks. Interference by federal courts in

the administration of state prison matters is generally

disfavored. See Johnson v. Payton, 2013 WL 1843979 at *5, citing

Glover v. Johnson, 855 F.2d 277, 286-87 (6th Cir. 1988) (“Any

interference by the federal courts in the administration of state

prison matters is necessarily disruptive. The public welfare

therefore militates against the issuance of extraordinary relief

in the prison context, absent a showing of a violation of

constitutional rights.”). Consequently, the public interest does

not support the remedy of injunctive relief. For all of these

reasons, the Court will recommend that Mr. Hendricks’ motion for

a TRO or preliminary injunction be denied. The Court will also

recommend that Mr. Hendricks’ request for a hearing on his motion 

be denied.

IV. Remaining Motions

Mr. Hendricks also has requested the appointment of counsel. 

"Appointed counsel in civil suits is a privilege only justified

in exceptional circumstances...." Jennings v. Bradley, 419 Fed.

Appx. 594, 598 (6th Cir. 2011), citing Lavado v. Keohane, 992

F.2d 601, 605 (6th Cir. 1993). Based on the current record, the

Court cannot conclude that such exceptional circumstances exist

in this case. Consequently, the motion for appointment of

counsel will be denied. 

Mr. Hendricks’ final pending motion is a motion to amend the

scheduling order. In this motion, he requests an extension of

the discovery deadline to September 30, 2013. Defendants have

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not opposed this motion. The motion sets forth good cause for

the requested extension. Consequently, the motion for an

amendment of the scheduling order will be granted. 

V. Recommended Disposition and Order

For the reasons set forth above, it is recommended that the

motion for a temporary restraining order or preliminary 

injunction and request for a hearing (#80) be denied. 

Plaintiff’s motion for appointment of counsel (#77) is denied. 

Plaintiff’s motion for an amendment of the scheduling order (#81)

is granted. All discovery shall be completed by September 30,

2013. Dispositive motions shall be filed by October 30, 2013. 

 PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

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 /s/ Terence P. Kemp 

 United States Magistrate Judge

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