Report and Recommendation

Plaintiff’s Motion for TRO 1 Newson v. Steele; 09-10346

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MAURICE NEWSON, Case No. 09-10346

Plaintiff, Avern Cohn

vs. United States District Judge

JOHN T. STEELE, et al., Michael Hluchaniuk

United States Magistrate Judge

Defendants.

 / 

REPORT AND RECOMMENDATION

PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING

ORDER AND FOR ORDER TO SHOW CAUSE (Dkt. 26)

I. PROCEDURAL HISTORY

This is a prisoner civil rights action filed on January 29, 2009. (Dkt. 1). 

Plaintiff alleges that defendants violated his constitutional rights pursuant to 42

U.S.C. § 1983. This case was referred to the undersigned by District Judge Avern

Cohn on February 25, 2009. (Dkt. 6). On March 30, 2009, plaintiff filed a motion

for temporary restraining order and an order to show cause. (Dkt. 26). The

undersigned issued an order requiring defendants to file a response. (Dkt. 31). 

Correctional Medical Services, Inc. (CMS) filed a response on April 14, 2009. 

(Dkt. 33). Defendants Caruso, Gilbert, Straub, Armstrong, Wilson, and Gardon,

all employees of the Michigan Department of Corrections (the MDOC

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defendants), filed a response on April 27, 2009. (Dkt. 43). Plaintiff filed replies

on April 20, 2009 and May 6, 2009. (Dkt. 35, 45). This matter is now ready for

report and recommendation.

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s motion for temporary restraining order and to show cause be DENIED.

II. FACTUAL BACKGROUND AND PARTIES’ SUBMISSIONS

Plaintiff’s 80 page complaint details his claims of deliberate indifference

relating to his post-liver transplant medical care and retaliatory transfer based on

his filing grievances. (Dkt. 1). Plaintiff’s motion for temporary restraining order

and to show cause, however, relates to his claim that persons who are not parties

to this lawsuit (H. Elum and J. Cooke) retaliated against him by causing his legal

writer, Philip Wayne Berryman, to be removed from the legal writer program. 

(Dkt. 26). According to plaintiff, Elum made it clear that she retaliated against

Berryman because he is a Jewish prisoner. (Dkt. 26). According to plaintiff,

Cooke made it clear that she dislikes Berryman because he is a “‘Jew’ that helps

prisoners file lawsuits....” (Dkt. 26). Also according to plaintiff, both Elum and

Cooke refused to make photocopies of plaintiff’s legal pleadings in this matter and

it is a custom and practice for defendants to retaliate against prisoners who file

lawsuits, causing litigation delays. Plaintiff asserts that the likelihood of “winning

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a final judgment on the issues of his right to access to the courts is

overwhelming.” As to the relief requested, plaintiff asks this Court to: reinstate

Berryman as a legal writer; to issue an order for defendants to show cause why a

preliminary injunction should not issue; and issue a preliminary and permanent

injunction precluding defendants and others from continuing to take any

retaliatory action against him. (Dkt. 26).

In response, CMS asserts that plaintiff has failed to establish any of the

factors considered by the Court in determining whether a preliminary injunction

should issue weigh in plaintiff’s favor. CMS also asserts that plaintiff’s motion

for preliminary injunction does not relate to any current or future medical care

issues and thus, does not appear to be aimed at CMS. (Dkt. 33). 

The MDOC defendants assert that an inmate does not have a right to the

legal writer of his choice; nor does an inmate have a right to be a legal writer in

the program. (Dkt. 43). They also point out that, according to their inquiry,

inmate Berryman was terminated from his legal writer job assignment for a “work

violation” that created a “security risk.” (Dkt. 43, Ex. B). The MDOC defendants

also argue that plaintiff has little chance of success on the merits, as set forth in

their pending dispositive motion. That is, “plaintiff asserts unexhausted claims;

time-barred claims; and he seeks to impose liability on individuals who were not

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involved in his medical treatment or the medical decisions challenged by him; and

his claims are barred by immunities.” (Dkt. 43). These defendants also argue that

plaintiff has failed to show any irreparable injury in that there is no indication as to

the legal pleadings plaintiff claims to have been deprived of the ability to copy or

file in this matter. And, according to the MDOC defendants, to the extent that

plaintiff’s claim involves the actions of persons who are not parties to this suit, his

motion for preliminary injunction “falls far short of demonstrating that a claim has

been lost or rejected or that his presentation of such a claim is currently being

prevents; as is required to demonstrate standing to assert a First Amendment

access claim.” (Dkt. 43, citing, Lewis v. Casey, 518 U.S. 343, 354-56 (1996);

Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)).

In reply to CMS’s response, plaintiff asserts, among other things, that his

motion for temporary restraining order has nothing whatsoever to do with his

medical treatment, and therefore, CMS’s argument – that the issuance of a

temporary restraining order would disrupt the MDOC medical program – is

“ridiculous.” (Dkt. 35). In reply to MDOC defendants’ response, plaintiff asserts

that the Court should reject their argument that Berryman was terminated for a

work violation that created a security risk because they have produced no evidence

regarding the nature of the work violation or the security risk posed. (Dkt. 45). 

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Plaintiff also asserts that without the reinstatement of Berryman, he will continue

to suffer irreparable harm from defendants “just like the recent episode that

plaintiff had an infection in the liver which was reported prior to March 18, 2009

and was supposed to have been seen by a Doctor before March 28, 2009, but was

not seen until April 21, 2009.” (Dkt. 45). Plaintiff claims that the one-month

delay in seeing a physician and the facility losing the prescription to treat his

infection, “almost killed” him. And, plaintiff cannot get the legal help he needs

while Berryman is not working. According to plaintiff, if Berryman is not

reinstated, “these people are going to KILL ME, from lack of proper medical

care.” (Dkt. 45). 

III. ANALYSIS AND CONCLUSIONS

The availability of preliminary injunctive relief is a procedural question that

is governed by federal law. Southern Milk Sales, Inc. v. Martin, 924 F.2d 98 (6th

Cir. 1991). The Sixth Circuit has held that a court must consider four factors in

deciding whether to issue a preliminary injunction:

1. whether the movant has established a substantial

likelihood or probability of success on the merits;

2. whether the movant has demonstrated a threat of

irreparable harm;

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3. whether the issuance of a preliminary injunction

would cause substantial harm to others; and

4. whether the public interest is served by the

issuance of an injunction.

Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 888 (6th Cir. 2000), overruled

on other grounds, 729, Inc. v. Kenton Co. Fiscal Court, 515 F.3d 485 (6th Cir.

2008). “‘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 Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001). 

In the view of the undersigned, while plaintiff attempted to inject the issue

of ongoing medical treatment in his reply to the MDOC defendants’ response, his

motion for temporary restraining order (like his complaint) is plainly limited to the

issue of Berryman’s termination as a legal writer. Notably, a prisoner has no

constitutional right to prison employment or a particular prison job. White v.

Warren, 2009 WL 276950 (E.D. Mich. 2009), citing, Newsom v. Norris, 888 F.2d

371, 374 (6th Cir. 1989); see also Lyle v. Olney, 2005 WL 3163389 (E.D. Mich.

2005). In this regard, the undersigned questions whether plaintiff has standing to

assert any claim or request any relief arising from the termination of another

prisoner as a legal writer. “Even if it is assumed that the rights of other inmates

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were breached by the prison policy, [plaintiff] lacked standing to assert those

rights.” Holland v. Runda, 67 F.3d 299 (6th Cir. 1995), citing, Newsom, at

381-82; see also Smith v. Maschner, 899 F.2d 940, 950 (10th Cir. 1990)

(“[I]nmates have no constitutional right to be ‘jailhouse lawyers.’”). And, where a

prisoner “lacks standing to assert the rights of other prisoners ... [he] has no right

to the injunctive relief [he] seeks.” Clarke v. Moore, 2006 WL 287233, *1 (E.D.

Mich. 2006). Based on the foregoing, the undersigned suggests that plaintiff has

no chance of succeeding on the merits of his claim for a temporary restraining

order relating to the termination of Berryman as a legal writer because he lacks

standing.

The undersigned further suggests that plaintiff has failed to show irreparable

harm, which is required before a preliminary injunction may issue. Friendship

Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982). The

undersigned further suggests that plaintiff has offered no basis for this Court to

interfere with the operation of a correctional facility by overriding its

determination that another prisoner violated work rules and created a security risk. 

See Kendrick v. Bland, 740 F.2d 432 at 438, n. 3, (6th Cir. 1984); Harris v.

Wilters, 596 F.2d 678 (5th Cir. 1979) (Where a prison inmate seeks an order

enjoining state prison officials, this Court is required to proceed with the utmost

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care and must recognize the unique nature of the prison setting.). In this vein, the

undersigned suggests that the issuance of a temporary restraining order would be

against the public interests and, on balance, would cause substantial harm to the

MDOC defendants by unnecessarily interfering with the operation of a prison. 

Based on the foregoing, the undersigned suggests that plaintiff has failed to meet

his heavy burden of establishing that the extraordinary and drastic remedy sought

is appropriate under the circumstances. See e.g., O’Lone v. Estate of Shabazz, 482

U.S. 342 (1986).

IV. RECOMMENDATION

Based on the foregoing, the undersigned RECOMMENDS that plaintiff’s

motion for temporary restraining order and to show cause be DENIED.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 10 days of service,

as provided for in 28 U.S.C. § 636(b)(1) and Local Rule 72.1(d)(2). Failure to file

specific objections constitutes a waiver of any further right of appeal. Thomas v.

Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and Human Servs., 932 F.2d

505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others

with specificity will not preserve all the objections a party might have to this

Report and Recommendation. Willis v. Sec’y of Health and Human Servs., 931

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F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231, 829

F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any

objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 10 days after service of an

objection, the opposing party must file a concise response proportionate to the

objections in length and complexity. The response must specifically address each

issue raised in the objections, in the same order, and labeled as “Response to

Objection No. 1,” “Response to Objection No. 2,” etc. If the Court determines that

any objections are without merit, it may rule without awaiting the response.

Date: October 28, 2009 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

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Plaintiff’s Motion for TRO 10 Newson v. Steele; 09-10346

CERTIFICATE OF SERVICE

I certify that on October 28, 2009, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Julia R. Bell, Randall A. Juip, Brian J. Richtarcik,

and I certify that I have mailed by United States Postal Service the paper to the

following non-ECF participant(s): Maurice Newson, # 370171, G. ROBERT

COTTON CORRECTIONAL FACILITY, 3500 N. Elm Road, Jackson, MI 49201.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov

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