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 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DONALD GRANBERRY, )

Petitioner, )

v. ) C.A. No. 04-241 Erie

) District Judge McLaughlin

SUPER. BROOKS, et al., ) Magistrate Judge Baxter

Respondents )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Petitioner’s motion for temporary restraining order

or preliminary injunction [Document # 22] be denied.

II. REPORT

A. Procedural History

Petitioner, an inmate, filed this petition for writ of habeas corpus alleging that he is being

denied parole unfairly. On June 14, 2005, Petitioner filed a motion for temporary restraining

order or preliminary injunction requesting that this Court “requir[e] the Respondents to arrange

for a reparole hearing applying the law the [sic] was in effect when Petitioner’s offense

occurred, and to a preliminary injunction requiring the Respondents to conduct the review in

accordance with the law which states that the Petitioner is a nonviolent offender.” Document #

22. 

B. Standard of Review

A preliminary injunction is “a drastic and extraordinary remedy that is not to be routinely

granted.” Intel Corp. v. ULSI Sys. Tech., Inc., 995 F.2d 1566, 1568 (Fed.Cir.1993).

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To obtain a preliminary injunction, the movant must demonstrate both (1) that he is reasonably

likely to succeed on the merits and (2) that he is likely to experience irreparable harm without

the injunction. Adams v. Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir.2000). If both of

these factors are shown, the effect on the nonmoving parties and the public interest may be

considered. Id. at 484. As a court sitting in equity, the district court must weigh the four

factors, but it is not incumbent on the movant to prevail on all four factors, only on the overall

need for an injunction. Neo Gen Screening, Inc. v. TeleChem Intern., Inc., 69 Fed.Appx. 550,

554 (3d Cir. 2003). A sufficiently strong showing on either the likelihood of success or

irreparable harm may justify an injunction, even if a movant’s showing on the other two factors

is lacking. Id. The burden of introducing evidence to support a preliminary injunction is on the

moving party with respect to the first two issues; however, the same is not true of the second

two issues. Id. Where the requested preliminary injunction "is directed not merely at preserving

the status quo but ... at providing mandatory relief, the burden on the moving party is

particularly heavy." Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.1980); see also Acierno v.

New Castle County, 40 F.3d 645, 653 (3d Cir.1994). Indeed, "[m]andatory injunctions should

be used sparingly, " and only when the status quo is one of action that will inflict irreparable

injury on the movant. United States v. Price, 688 F.2d 204, 212 (3d Cir.1982). 

The factors that must be shown for the issuance of a temporary restraining order are the

same as those required to issue a preliminary injunction. Fink v. Supreme Court of

Pennsylvania, 646 F.Supp. 569, 570 (M.D.Pa. 1986). Injunctive relief "must be reserved for

extraordinary circumstances...." Hoxworth v. Blinder, Robinson & Co. Inc., 903 F.2d 186, 189

(3d Cir. 1990). 

If the record does not support a finding of both irreparable injury and a likelihood of

success on the merits, then a preliminary injunction cannot be granted. Marxe v. Jackson, 833

F.2d 1121 (3d Cir. 1987). Irreparable injury is established by showing that the movant will

suffer harm that "cannot be redressed by a legal or an equitable remedy following trial." Instant

Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989)("The preliminary

injunction must be the only way of protecting the plaintiff from harm"). The movant bears this

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burden of showing irreparable injury. Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493

U.S. 848 (1989). In fact, the movant must show immediate irreparable injury, which is more

than merely serious or substantial harm. ECRI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir.

1987). The case law provides some assistance in determining that injury which is irreparable

under this standard. "The word irreparable connotes 'that which cannot be repaired, retrieved,

put down again, atoned for...'." Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir.

1994)(citations omitted). Additionally, "the claimed injury cannot merely be possible,

speculative or remote." Dice v. Clinicorp, Inc., 887 F.Supp. 803, 809 (W.D.Pa. 1995). An

injunction is not issued "simply to eliminate a possibility of a remote future injury...." Acierno,

40 F.3d at 655 (citation omitted). 

C. Petitioner’s Motion

Because Petitioner is requesting mandatory relief (and not merely the preservation of the

status quo), his burden to demonstrate the likelihood of success on the merits as well as

irreparable harm is “particularly heavy.” See Acierno, 40 F.3d at 653. Petitioner has not met

this burden as he has not produced any evidence to support either his likelihood of success or his

irreparable injury. In his brief in support of his motion, Petitioner has only argued the merits of

his underlying claim in an effort to achieve a quicker result from this Court. It is Petitioner’s

burden to produce the evidence to support his request for injunctive relief, see Neo Gen

Screening, Inc., infra, and he has failed to do so.

Accordingly, his motion should be denied.

III. CONCLUSION

Plaintiff’s motion for injunctive relief [Document # 22] should be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (c), and Local

Rule 72.1.4B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

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date of service of objections to respond thereto. Failure to timely file objections may constitute

a waiver of any appellate rights.

S/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

CHIEF UNITED STATES MAGISTRATE JUDGE

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