UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JASON M. RUSSELL

Plaintiff,

 Civil Action 2:11-cv-1158

v. Judge George C. Smith

 Magistrate Judge E.A. Preston Deavers

STATE OF OHIO, et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

This matter is before the Court for the initial screen of Plaintiff’s Complaint under 28

U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of

Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2); see also McGore v. Wrigglesworth, 114 F.3d 601, 608

(6th Cir. 1997). In addition, Plaintiff has filed two motions seeking a temporary restraining

order and preliminary injunction. (ECF Nos. 3 and 4.) Finally, Plaintiff has contemporaneously

applied for entry of default and moved for moved for default judgment. (ECF No. 2.) Having

performed the initial screen, for the reasons set forth below, the undersigned RECOMMENDS

that the Court DISMISS this action for failure to state claim upon which relief can be granted. 

Consistent with this recommendation, it is further RECOMMENDED that Plaintiff’s motions

for a temporary restraining order and preliminary injunction be DENIED. (ECF Nos. 3 and 4.) 

Finally, Plaintiff’s Application for Entry of Default and Motion for Default Judgment is

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DENIED. (ECF No. 2.) 

 I.

Plaintiff, Jason M. Russell, a state inmate who is proceeding with out the assistance of

counsel, brings this civil rights action pursuant to 42 U.S.C. § 1983 against Defendants,1 seeking

declaratory and injunctive relief. As best the undersigned can discern, Plaintiff is alleging that

Defendants have conspired against him to deny him access to the courts, refuse him Kosher

meals, and encourage other inmates to harass him, steal his money, and destroy his property. 

 He alleges that these violations began in February 2008, when he was an inmate at LCI

and continued after he was transferred to MCI. Specifically, Plaintiff alleges that both the LCI

and MCI Defendants have adopted policies that interfere with his access to courts, including a

policy prohibiting the preparation of legal documents on “federally funded prison educational

computers”; a policy to remove passwords used on prison computers to save legal research; a

policy of deleting legal research saved on prison computers; and a policy limiting access to

computers, books, materials, copy machines, and legal assistance. He alleges that the MCI

Defendants tampered with the prison computers, causing them to slow down or “freeze” when he

was utilizing them to perform his legal research. (Id.) He further alleges that the LCI

Defendants conspired to withhold or steal his legal mail and threatened him to “sign/backdate

forged incoming inmate legal mail . . . .” (Compl. 2, ECF No. 1-2.) Similarly, Plaintiff alleges

that the MCI Defendants conspired to steal exhibit stickers that this Court sent to him in

1

Plaintiff names numerous Defendants in his Complaint, including fellow inmates and

also employees of Ohio Department of Rehabilitation and Correction (“ODRC”), Lebanon

Correctional Institution (“LCI”), and Mansfield Correctional Institution (“MCI”), all of whom he

names in both their individual and official capacities. 

 

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November 2011.

In addition to his access to courts claims, Plaintiff alleges that the MCI Defendants have

failed to provide him with sufficient nutritional Kosher meals in violation of his First

Amendment rights. It appears that Plaintiff is also alleging that LCI employees conspired with

another LCI inmate to have that inmate charge Plaintiff legal fees. Finally, Plaintiff alleges that

a MCI employee conspired with MCI inmates to encourage other inmates to “harass, annoy,

aggravate, and anger Plaintiff” and to steal or destroy Plaintiff’s personal property when he was

not in his cell to protect it. (Compl. 3, ECF No. 1-2.) 

One day after filing his Complaint, Plaintiff contemporaneously applied for entry of

default and moved for moved for default judgment. (ECF No. 2.) In his filing, he asserts that

Defendants failed to plead or otherwise defend. 

Plaintiff, in his first motion for a temporary restraining order and preliminary injunction,

complains generally of retaliation, asserting that ODRC, MCI, and LCI policymakers have

conspired against him to make policies that interfere with his access to courts. He references,

among other things, Defendants’ purportedly restrictive policies concerning computer usage. He

requests that this Court “preserve the status quo” by “‘freezing time’ concerning post-conviction

remedies/recourses lost during incarcerated time period (or possibly discharge [him] from

custody of State).” (Pl.’s First Mot. for Inj. Relief 6, ECF No. 3.) 

In his second motion for a temporary restraining order and preliminary injunction,

Plaintiff again references Defendants’ computer policies and also MCI’s rules prohibiting

inmates from removing legal books from the library to take to their housing cell. He recounts

specific instances of the LCI librarian’s alleged deletion of legal research he had saved on prison

computers and an instance in which a LCI Defendant purportedly stole his legal mail. He also

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alleges that the MCI librarian “destroy[ed] the computer’s password functions.” (Pl.’s Second

Mot. for Inj. Relief 6, ECF No. 4.) He maintains that these policies and actions are the product

of Defendants’ conspiracy to violate his First Amendment rights. Plaintiff requests that the

Court remove him from prison custody and place him instead in Court custody. He also asks

that the Court permit him to now pursue a malicious prosecution claim even though that claim is

barred by the applicable statute of limitations. Finally, he asks that the Court order another

inmate to return money Plaintiff purportedly paid to him for assistance in preparing legal

documents. 

II.

A. Default Judgment 

Plaintiff’s Motion for Default Judgment, is DENIED as premature. (ECF No. 2.) 

Plaintiff sought an entry of default and default judgment just one day after he filed his

Complaint. Because the Court has not yet ordered service of Plaintiff’s Complaint, Defendants’

deadline for answering or otherwise responding to Plaintiff’s Complaint has not expired. Thus,

at this juncture, Plaintiff’s Motion for Default Judgment is premature. 

B. Initial Screen

1. Standard

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

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U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2

 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31; see also 28 U.S.C. § 1915A

(requiring the Court to screen a prisoner’s complaint “as soon as practicable” and dismiss any

portion of a the complaint if it is frivolous, malicious, or fails to state a claim). Thus, § 1915(e)

and § 1915A require sua sponte dismissal of an action upon the Court’s determination that the

action is frivolous or malicious, or upon determination that the action fails to state a claim upon

which relief may be granted. 

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). See also Hill v. Lappin, 630

F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards

to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Although this pleading standard

does not require “‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and

conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’” is insufficient. 

Ashcroft v. Iqbal, 566 U.S. 662, 676 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders ‘naked assertion[s]’

2

Formerly 28 U.S.C. § 1915(d). 

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devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to

survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules

of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim to

relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility

is established “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. In addition, the

Court holds pro se complaints “‘to less stringent standards than formal pleadings drafted by

lawyers.’” Garrett v. Belmont County Sheriff’s Dept., No. 08-3978, 2010 WL 1252923, at *2

(6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). The Court is not

required, however, to accept as true mere legal conclusions unsupported by factual allegations. 

Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). 

2. Application

i. LCI Defendants

Applying the foregoing, the undersigned recommends dismissal of Plaintiff’s claims

against the LCI Defendants for a number of reasons, including res judicata, mootness, and

failure to state a claim.

First, the undersigned concludes that the doctrine of res judicata or claim preclusion

operates to bar Plaintiff’s claims against the LCI Defendants. Under the doctrine of res judicata

or claim preclusion, “a final judgment on the merits bars further claims by parties or their privies

based on the same cause of action.” Montana v. U.S., 440 U.S. 147, 153 (1979). The United

States Court of Appeals for the Sixth Circuit has instructed that res judicata requires proof of the

following four elements: “(1) a final decision on the merits by a court of competent jurisdiction;

(2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent

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action which was litigated or which should have been litigated in the prior action; and (4) an

identity of the causes of action.” Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995). 

“The purpose of res judicata is to promote the finality of judgments, and thereby increase

certainty, discourage multiple litigation, and conserve judicial resources.” Westwood Chemical

Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981). 

In the instant action, with regard to his claims against the LCI Defendants, Plaintiff

simply reasserts the same claims, causes of action, and injuries arising out of the same facts that

he alleged in Russell v. Bailey, Case No. 1:09-cv-878, filed in the United States District Court for

the Southern District of Ohio Western Division (“878 Case”). Specifically, in the 878 Case, as

in the instant case, Plaintiff alleged that LCI employees conspired against him to violate his First

Amendment right of access to the courts by depriving him of meaningful access to the law

library and by deleting legal research and documents that he had saved to the prison’s computer,

which caused him to miss court filing deadlines. Plaintiff initiated the 878 Case in December

2009. Although the 878 Case survived the initial screen, the Court ultimately adopted the

recommendation of the United States Magistrate Judge that the defendants’ motion for judgment

on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) be granted. (878 Case, ECF

No. 46.) See Harrison v. Randolph, No. 201-cv-1082, 2001 WL 1678791, at *1 (S.D. Ohio Dec.

31, 2001) (citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503 (2001)) ( “A

dismissal with prejudice acts as an adjudication on the merits and a bar to any further action

between the parties on the claim.”). The undersigned acknowledges that the instant action

contains a more detailed recitation of the facts. Nevertheless, Plaintiff’s claims against the LCI

Defendants in the instant case are duplicative of the claims he raised in the 878 Case as the

claims arose out of the same alleged events and policies. See Wilkins v. Jakeway, 183 F.3d 528

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(6th Cir. 1999) (discussing the applicability of res judicata in situations arising from the same

factual situation, regardless of whether the Plaintiff offers different theories of the case). In sum,

the undersigned concludes that the doctrine of res judicata operates to bar the claims Plaintiff

asserts against the LCI Defendants in the instant action. Based upon this conclusion, the

undersigned recommends dismissal of these claims. 

Second, the undersigned recommends dismissal of Plaintiff’s claims against the LCI

Defendants because these claims are moot. The Court properly raises the jurisdictional issue of

mootness sua sponte. See North Carolina v. Rice, 404 U.S. 244, 246 (1971) (“Mootness is a

jurisdictional question because the Court is not empowered to decide moot questions or abstract

propositions . . . .” (internal quotations marks and citations omitted)); Berger v. Cuyahoga Cnty.

Bar Ass’n, 983 F.2d 718, 721 (6th Cir. 1993) (“Questions of jurisdiction are fundamental matters

which [a court] may review sua sponte.”). 

Article III of the United States Constitution limits a federal court’s exercise of judicial

power to actual, ongoing “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. The caseor-controversy requirement of Article III subsists throughout all stages of the litigation. U.S. v.

Juvenile Male, 131 S.Ct. 2860, 2864 (2011) (internal quotation marks and citation omitted) (“It

is a basic principle of Article III that a justiciable case or controversy must remain extant at all

stages of review, not merely at the time the complaint is filed.”). The doctrine of mootness is a

corollary of Article III’s case-or-controversy requirement. “The mootness doctrine provides that

although there may be an actual and justiciable controversy at the time the litigation is

commenced, once that controversy ceases to exist, the federal court must dismiss the action for

want of jurisdiction.” 15 James Wm. Moore et al, Moore’s Federal Practice § 101.9, at 101–238

(3d ed. 2011). 

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When an inmate files suit against prison officials at the institution of his incarceration

based upon those officials’ wrongful conduct, seeking declaratory and injunctive relief, and that

inmate is subsequently transferred or released, courts routinely dismiss the declaratory and

injunctive relief claims as moot. Sossamon v. Texas, 131 S.Ct. 1651, 1669–70 (2011) (citations

omitted) (“A number of . . . suits seeking injunctive relief have been dismissed as moot because

the plaintiff was transferred from the institution where the alleged violation took place prior to

adjudication on the merits.”); see, e.g., Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996)

(concluding that inmate’s claims for declaratory and injunctive relief were rendered moot upon

inmate’s transfer from the prison about which he complained); Abdur-Rahman v. Michigan

Dep’t of Corr., 65 F.3d 489, 491 (6th Cir. 1995) (inmate’s request for injunctive relief mooted

upon transfer from relevant prison); Lavado v. Keohane, 992 F.2d 601 (6th Cir. 1993) (same). 

This is because an inmate’s transfer or release ends the alleged violations of his or her

constitutional rights, which “render[s] the court unable to grant the requested relief.” Berger,

983 F.2d at 724; Fredette v. Hemingway, 65 F. A’ppx 929, 931 (6th Cir. 2003) (concluding that

an inmate’s request for injunctive relief to prevent his transfer to another prison became moot

upon the inmate’s subsequent transfer because “the district court was unable to grant the relief

requested”). “There is . . . an exception to the mootness doctrine for claims that are capable of

repetition, yet evade review.” Fredette, 65 F. A’ppx at 931. This narrow, capable-of-repetition

exception is limited to situations in which “the challenged action was in its duration too short to

be fully litigated prior to its cessation or expiration” and “there was a reasonable expectation that

the same complaining party would be subjected to the same action again.” Id. (internal quotation

marks and citations omitted). The circumstances here do not fall within this exception. 

Applying the foregoing principles to the instant case, the undersigned concludes that

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Plaintiff’s claims against the LCI Defendants—all of which seek only declaratory and injunctive

relief—are moot. The Court’s entry of equitable relief in Plaintiff’s favor and against the LCI

Defendants would have no effect on those Defendants’ behavior towards him because they

perform their duties at an institution where Plaintiff is not incarcerated. Put another way, an

entry of equitable relief would accomplish nothing; ordering LCI officials to permit inmates to

save information to prison computers would not impact Plaintiff. 

Finally, to the extent Plaintiff seeks to bring a claim against an LCI employee for

conspiring with an LCI inmate (“Buckethead”) to charge him legal fees, that claim, too, fails to

survive the undersigned’s § 1915(e)(2) screen. Although Plaintiff’s allegations are unclear, it

appears that he is alleging he paid another inmate to use the library facility or to assist him in

using the facility. He seeks to hold LCI Education Administrator Beverly Baker liable for

conspiring with the inmate to charge the fees. He also seeks to hold the LCI prison cashier liable

for effectuating the transfer of the funds from his account to the other inmate’s account. (See

Compl. 1–2, ECF No. 1-2.) The undersigned recommends dismissal of this particular claim

because it fails to contain sufficient facts that would “allow[] the [C]ourt to draw the reasonable

inference that [the LCI Defendants] [are] liable for the conduct alleged.” Iqbal, 129 S.Ct. at

1949 (citing Twombly, 550 U.S. at 556). 

ii. MCI Defendants

 The undersigned likewise recommends dismissal of Plaintiff’s claims against the MCI

Defendants because Plaintiff has failed to state a claim with regard to these Defendants that

would survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure. 

The First Amendment access to courts claims Plaintiff raises against the MCI Defendants

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in this case are nearly identical to the access to courts claims he brought against the LCI

Defendants in Case 878. For example, he alleges that MCI, like LCI, does not provide him

adequate access to the prison’s computers. He also alleges that both prisons’ employees tamper

with the computer so that he is unable to save his research on the computer. Magistrate Judge

Litkovitz, in her March 16, 2011 Report and Recommendation, concluded that these types of

allegations failed to state a claim that the defendants had violated Plaintiff’s First Amendment

right of access to the courts. In reaching this conclusion, she acknowledged that prisoners have a

fundamental right to meaningful access to the courts, but that “[r]estrictions on the time, place,

and manner in which inmates may engage in legal research and preparation of legal papers are

constitutional . . . so long as the restrictions do not unreasonably frustrate the right of access to

the courts.” (Case 878, ECF No. 44 (citing Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.

1985)).) She pointed out that Plaintiff had not alleged that he was denied the ability to utilize the

library, access legal materials, or that he was denied the ability to do legal research and prepare

his court documents. She then found that Plaintiff’s claims must fail because he “has no First

Amendment Right to the use of a computer . . . .” (Id. (citing Lehn v. Hartwig, 13 F. App’x 389,

392 (7th Cir. 2001) (“If prisoners have no constitutional right to a typewriter, they certainly do

not have one to a computer.”) (internal citations omitted); Howard v. Webster, 339 F. App’x 616

(7th Cir. 2009) (upholding dismissal at initial screening where plaintiff’s First Amendment

access to the courts claim was that he was unable to use the prison computer to access his legal

documents as the library was closed); Nicholas v. Mantello, No. 96-2391, 1996 WL 671276, at

*1 (2d Cir. Oct. 20, 1996) (“[P]laintiff’s constitutional right to access to the courts was not

violated by the computer suspension because that right does not include the right to use

computers.”); White-Bey v. Griggs, 43 F. App’x 792 (6th Cir. 2002) (affirming summary

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judgment and concluding that inmate’s grievances that he was denied access to a computer were

frivolous)).) 

Such is the case here. Plaintiff offers “a legal conclusion couched as a factual allegation”

that he was denied meaningful access to “computers books, materials, copy machine, and legal

assistance.” See Twombly, 550 U.S. at 555. His detailed factual allegations make clear,

however, that he has not been denied access to legal materials or to utilize the library to do

research, but instead that he is challenging MCI’s restriction of his access to prison computers

and also its policy prohibiting him from removing law books from the library. (See Pl’s Compl.

2–3, ECF No. 1-2.) 

Further, Plaintiff fails to sufficiently allege that MCI’s policies actually impeded his

ability litigate or resulted in actual prejudice to his litigation. See Howard, 339 F. App’x at 618

(inmate’s failure to allege that loss of access to library computer impeded ability to work on

appeal supports dismissal of claim). “Essentially, a claim for denial of access to the courts has

unique pleading requirements: a plaintiff must plead a case within a case, alleging the law and

facts sufficient to establish both the interference with his access to the courts, and the

non-frivolous nature of the claim that was lost.” Brown v. Matauszak, 415 F. App’x 608, 612

(6th Cir. 2011). Here, Plaintiff has failed to satisfy this pleading requirement. For this same

reason, his claim concerning an MCI employee’s alleged theft of exhibit stickers also fails. 

 Likewise, Plaintiff has failed to sufficiently allege a violation of the First Amendment

based upon the MCI Defendants’ alleged failure to order a sufficient number of “adequate

nutritional” Kosher meals. (Compl. 3, ECF No. 1-2.) Plaintiff alleges simply that Defendants

either “omitt[ed] to order sufficient Kosher meals for Plaintiff, or . . . declin[ed] to provide such

meals to [him] injuring his protected liberty/property interest . . . .” (Id.) Under the First and

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Fourteenth Amendments, when reasonable, a prison must accommodate an inmate’s free

exercise of their religious rights. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348–49 (1987);

AbdurRaham v. Mich. Dept. of Corr, 65 F.3d 489, 491 (6th Cir. 1995). “A prisoner alleging that

the actions of prison officials violate his religious beliefs must show that ‘the belief or practice

asserted is religious in the person’s own scheme of things’ and is ‘sincerely held.’” Flagner v.

Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (quoting Kent v. Johnson, 821 F.2d 1220, 1224–25

(6th Cir. 1987)). Although the denial of Kosher meals could constitute a cognizable claim, here,

Plaintiff fails to state a claim because he has not pled that his sincerely held religious beliefs

require him to consume only Kosher food. Indeed, in his Second Motion for a Restraining

Order, he indicates that when he did receive Kosher meals, that he would then supplement those

meals with non-Kosher “side” items, including eggs and peanut-butter. (Pl.’s 2nd Mot. for TRO

15, ECF No. 4.) Accordingly, the undersigned recommends dismissal of Plaintiff’s claims

regarding the MCI Defendants’ alleged failure to provide him with an adequate nutritional

religious diet. 

Finally, the undersigned concludes that Plaintiff has failed to state a claim with regard to

his allegations concerning the MCI employee’s purported conspiracy with other inmates to

annoy him and interfere with his property. It is unclear whether Plaintiff is seeking to assert a

First Amendment retaliation claim or an Eight Amendment conditions of confinement claim. 

Under either theory, he has failed to state a claim. The elements of a First Amendment

retaliation claim are:

“(1) the plaintiff engaged in protected conduct; (2) and adverse action was taken

against the plaintiff that would deter a person of ordinary firmness from

continuing to engage in that conduct; and (3) there is a causal connection between

elements one and two—that is, the adverse action was motivated at least in part

by the plaintiff’s protected conduct.”

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Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004) (quoting Thaddeus-X v. Blatter, 175

F.3d 378, 394 (6th Cir. 2000). “An Eighth Amendment conditions-of-confinement claim has

two elements. First, the deprivation alleged must be, objectively, sufficiently serious; a prison

official’s act or omission must result in the denial of the minimal civilized measure of life’s

necessities. Second, the prison official’s state of mind [must be] one of ‘deliberate indifference’

to inmate health or safety.” Arauz v. Bell, 307 F. App’x 923, 929 (6th Cir. 2009) (citation and

internal quotation marks omitted). In the instant case, Plaintiff has failed to sufficiently plead

any of the requisite elements of either claim. The undersigned therefore recommends dismissal

of Plaintiff’s claims relating to these allegations. 

C. Motions for Temporary Restraining Order and Preliminary Injunction

Plaintiff requests a temporary restraining order and a preliminary injunction. Federal

Rules of Civil Procedure 65(a) and (b) permit a party to seek injunctive relief when the party

believes it will suffer immediate and irreparable injury, loss, or damage. Fed. R. Civ. P. 65(a)

and (b). A district court considering the extraordinary remedy of a preliminary injunction must

consider and balance the following four factors: 

(1) whether the movant has shown a strong likelihood of success on the merits;

(2) whether the movant will suffer irreparable harm if the injunction is not issued;

(3) whether the issuance of the injunction would cause substantial harm to others;

and (4) whether the public interest would be served by issuing the injunction. 

Overstreet v. Lexington-Fayette Urban Cty. Gov., 305 F.3d 566, 573 (6th Cir. 2002) (citing

Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). “These factors are not prerequisites, but

are factors that are to be balanced against each other.” Id. “Although no one factor is

controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.”

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Gonzales v. National Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000) (citation omitted);

see also Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997) (“While, as a

general matter, none of these four factors are given controlling weight, a preliminary injunction

issued where there is simply no likelihood of success on the merits must be reversed.”). 

A movant’s burden is even more difficult to satisfy where, as here, a prison inmate seeks

an injunction to obtain affirmative relief beyond maintenance of the status quo. See 18 U.S.C. §

3626(a)(2) (“In any civil action with respect to prison conditions . . . [p]reliminary injunctive

relief must be narrowly drawn, extend no further than necessary to correct the harm the court

finds requires preliminary relief, and be the least intrusive means necessary to correct that

harm.”); Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary

injunction is merely to preserve the relative positions of the parties until a trial on the merits can

be held.”). 

After consideration of the four factors, the undersigned recommends that the Court deny

both Plaintiff’s motions for a temporary restraining order and preliminary injunction. For the

reasons set forth above, the undersigned concludes that the record fails to establish a likelihood

of success on the merits. Additionally, Plaintiff has failed to demonstrate that he would suffer

irreparable harm if the injunction is not issued. Further, the records contains no evidence

suggesting that the issuance of a preliminary injunction would, or would not, cause substantial

harm to others. Clearly, however, issuance of the injunction would require MCI to take

affirmative action beyond maintenance of the status quo and would necessarily increase costs. 

Moreover, the Court is unable to provide Plaintiff with some of the relief he requests. For

example, the Court cannot remove Plaintiff from prison to take custody of him. The final factor

once again militates against issuing the requested injunctive relief given that Plaintiff has failed

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to show a constitutional violation and granting the injunction would necessarily disrupt MCI’s

administration of prison matters. See Glover v. Johnson, 855 F.2d 277, 286–87 (6th Cir. 1988)

(counseling against court intrusion into the affairs of a state penal institution in the absence of

the most compelling situations, such as showing of a violation of constitutional rights). 

III.

 For the reasons set forth above, the undersigned RECOMMENDS that the Court

DISMISS this action in its entirety under §§ 1915(e)(2) and 1915A for failure to state claim

upon which relief can be granted. Consistent with this recommendation, it is further

RECOMMENDED that Plaintiff’s motions for a temporary restraining order and preliminary

injunction be DENIED. (ECF Nos. 3 and 4.) Finally, Plaintiff’s Application for Entry of

Default and Motion for Default Judgment is DENIED. (ECF No. 2.) 

IV. PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

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judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

IT IS SO ORDERED. 

DATE: March 14, 2012 /s/ Elizabeth A. Preston Deavers 

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE

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