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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT CINCINNATI

D’JANGO HENDRIX, 

Petitioner, : Case No. 1:17-cv-623 

- vs - District Judge Douglas R. Cole 

Magistrate Judge Michael R. Merz 

WARDEN, Lebanon Correctional 

 Institution, 

 

 : 

 Respondent. 

 REPORT AND RECOMMENDATIONS 

 

 This habeas corpus action is before the Court on Petitioner’s Emergency Motion for 

Extension of Time and/or Injunctive Relief to Stop Transfer (ECF No. 63). Because Hendrix seeks 

injunctive relief, the Motion requires a report and recommendation from the assigned Magistrate 

Judge, rather than an order. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b). 

 Petitioner reports that he is scheduled to be transferred to another unidentified ODRC 

location on January 25, 2023. He believes the transfer is unwarranted and prays for permanent 

injunctive relief or at least a temporary restraining order to prevent his transfer until he can file 

motions for leave to amend and an amended petition plus a motion for evidentiary hearing and to 

expand the record. He reports that drafts of these motions, which he intends to file by January 30, 

2023, are currently stored on the server at the Lebanon Correctional Institution and cannot be 

transferred. The drafts reportedly comprise 190 pages of text and would have to be re-typed. 

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 All of this is news to the Court. The only additional scheduled filing in the case is 

Petitioner’s reply or traverse, which is due February 15, 2023 (See ECF No. 62). Petitioner’s time 

to file the reply has been extended several times from October 31, 2022. The Court has never set 

or been asked to set deadlines for the additional matters Hendrix proposes to file; habeas corpus 

cases are typically ripe for decision with the filing of a traverse/reply. 

 None of Petitioner’s factual assertions are supported by evidence, even so much as a 

declaration by Petitioner under 28 U.S.C. § 1746 that the facts in the Motion are true. The inability 

to retrieve and transfer material already digitized and stored on a server at Lebanon Correctional 

is completely mysterious to the Magistrate Judge. Why can’t the drafts be dumped to a flash drive 

and then uploaded at Petitioner’s new location? Typically, transferability of data is a key goal of 

digitization. In any event, what Petitioner requests is not that the data be transferred, but that his 

own transfer be enjoined. 

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. 

National Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). 

 The factors to be considered in determining whether to issue a preliminary injunction are 

1) Whether the plaintiffs have shown a strong or substantial 

likelihood or probability of success on the merits; 

2) Whether the plaintiffs have shown irreparable injury; 

3) Whether the issuance of a preliminary injunction would cause 

substantial harm to others; 

4) Whether the public interest would be served by issuing a 

preliminary injunction. 

City of Pontiac Retired Employees Ass'n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc); 

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Overstreet v. Lexington-Fayette Urban Co. Gov't, 305 F.3d 566, 573 (6th Cir. 2002); Nightclubs, 

Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000); Washington v. Reno, 35 F.3d 1093, 

1099 (6th Cir. 1994); NAACP v. City of Mansfield, 866 F.2d 162, 166 (6th Cir. 1989); Frisch's 

Restaurant, Inc. v. Shoney's, Inc., 759 F.2d 1261, 1263 (6th Cir. 1985); In re DeLorean Motor Co., 

755 F.2d 1223, 1228 (6th Cir. 1985). 

 Petitioner is not likely to prevail on any motion asking that he be retained at his current 

location. Management of the location of prisoners within the prison system is uniquely a matter 

committed to the discretion of the ODRC. Absent some showing, not made here, that ODRC was 

carrying out a transfer for the purpose of preventing a habeas petitioner from litigating his case, 

the Court would have no basis to interfere. 

 Petitioner has not shown he will suffer an irreparable injury. Respondent’s counsel is 

requested to confirm whether Petitioner is correct about data transfer. Assuming that he is, the 

injury is not irreparable as the Court has not set deadlines for the motions in question which 

Hendrix admits can be re-typed. That is inconvenient, but not irreparable. 

 Finally, the public interest is not well served by having federal courts interfere with 

prisoner transfer decisions if for no other reason than it consumes judicial time and effort without 

protecting a strong interest of the prisoner in being in any one location. 

 Accordingly, it is respectfully recommended that the Emergency Motion be DENIED. 

Because reasonable jurists would not disagree with this conclusion, it is also recommended that 

Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that 

any appeal would be objectively frivolous and should not be permitted to proceed in forma 

pauperis. 

 January 25, 2023. 

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NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Because this document is being served by mail, three days are added under 

Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. Such 

objections shall specify the portions of the Report objected to and shall be accompanied by a 

memorandum of law in support of the objections. A party may respond to another party’s 

objections within fourteen days after being served with a copy thereof. Failure to make objections 

in accordance with this procedure may forfeit rights on appeal. 

 s/ Michael R. Merz

 United States Magistrate Judge 

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