1I have, this date, completed my preliminary review of this

matter, conducted pursuant to United States District Court

District of New Hampshire Local Rule 4.3(d)(2) and 29 U.S.C. §

1915A, and issued an Order directing service of the complaint

against the named defendants.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Joel L. Smith

v. Civil No. 07-cv-408-SM

William Wrenn, Commissioner,

New Hampshire Department of

Corrections, et al.

REPORT AND RECOMMENDATION

Joel Smith has filed a civil rights action (document no. 1)

pursuant to 42 U.S.C. § 1983, alleging that defendants have

violated his constitutional rights by denying him adequate

medical care during his confinement at the New Hampshire State

Prison.1 Smith has also filed a “Motion to Request Restraining

Order” (document no. 3), seeking to have this Court enjoin the

defendants from moving or transferring Smith out of the New

Hampshire State Prison during the pendency of this action.

The motion for a restraining order seeks an Order preventing

the defendants from punishing Smith or transferring him out of

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the New Hampshire State Prison in retaliation for the filing of

this lawsuit. As grounds for this request, Smith asserts only

his belief that he “may be sent back to Maine” without an order

from this Court prohibiting such a transfer.

Preliminary injunctive relief is available to protect the

moving party from irreparable harm, so that he may obtain a

meaningful resolution of the dispute after full adjudication of

the underlying action. See Jean v. Mass. State Police, 492 F.3d

24, 26-27 (1st Cir. 2007). Absent irreparable harm, there is no

need for a preliminary injunction. See Ross-Simons of Warwick,

Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996)

(plaintiff’s showing of irreparable harm must posses some

substance to warrant injunctive relief; preliminary injunction

not warranted by a “tenuous or overly speculative forecast of

anticipated harm.”).

Here, Smith has alleged only mere speculation that he might

be transferred in retaliation for his lawsuit. Further, Smith

has not stated how he would be irreparably harmed by a transfer,

were such an action to come to pass. Because Smith has not

alleged sufficient facts supporting his request for injunctive

relief to merit the consideration of such relief at this time, I

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recommend that Smith’s motion for a restraining order be denied,

without prejudice to refiling should circumstances warrant this

Court’s intervention to prevent irreparable harm to Smith while

this action is pending.

Any objections to this report and recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: April 9, 2008

cc: Joel L. Smith

Lawrence Vogelman, Esq.

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