United States District Court, M.D. Georgia, Macon Division
ORDER ON REPORT AND RECOMMENDATION
ASHLEY ROYAL, JUDGE UNITED STATES DISTRICT COURT
the Court is the United States Magistrate Judge's
Recommendation to deny Plaintiff's three Emergency
Motions for Preliminary Injunction. Plaintiff filed a timely
Objection to the Recommendation [Doc. 31] and a second,
untimely Objection to the Recommendation [Doc. 33], which the
Court will consider with his timely Objection. The Court has
fully considered the record in this case and made a de
novo determination of the portions of the Recommendation
to which Petitioner objects. For the following reasons, the
Court finds the Objection to be without merit and agrees the
Magistrate Judge's findings and conclusions.
case, the Court dismissed Plaintiff's Complaint on the
grounds that Plaintiff was untruthful in his allegation of
poverty in the Motion to Proceed in forma pauperis.
Plaintiff appealed this decision to the Eleventh Circuit
Court of Appeals and then filed a Motion for Preliminary
Injunction in the appellate case. The Eleventh Circuit denied
his Motion for Preliminary Injunction without prejudice.
Subsequently, Plaintiff filed three Emergency Motions for
Preliminary Injunction with this Court. In the Motions,
Plaintiff requests a preliminary injunction to compel
Defendants to provide him access to his stored legal
materials, the law library, and photocopying.
Recommendation, the Magistrate Judge first determined the
Court lacks jurisdiction over the Motions for Preliminary
Injunctions because Defendants have not been served in this
case and, second, concluded the Court cannot issue a
temporary restraining order because Plaintiff fails to show
he suffered irreparable injury from the denial of access to
his legal materials, as well as to the law library and
photocopier.Plaintiff objects to the Recommendation for
in his Objection, Plaintiff argues the Court should serve
Defendants for the limited purpose of having jurisdiction
over them to issue a preliminary injunction. Plaintiff
further contends the Eleventh Circuit intended this result
when it dismissed his motion without prejudice.
However, both contentions are incorrect. This Court dismissed
this case on August 20, 2015, and that dismissal is currently
on appeal. Moreover, the Eleventh Circuit did not intend such
a result. Instead, the Eleventh Circuit simply dismissed
Plaintiff's motion without prejudice because Plaintiff
should have filed it with this Court first, and not the
Eleventh Circuit. As the Magistrate Judge thoroughly
explained, Defendants were not served because Plaintiff's
Complaint was dismissed, and thus, the Court does not have
jurisdiction over the Defendants.
Plaintiff objects to the Magistrate Judge's conclusion he
cannot show actual harm to warrant the issuance of a
temporary restraining order. Plaintiff contends he suffered
actual harm when his brief in support of his initial
emergency motion was returned as unfiled for exceeding the
page limit. According to Plaintiff, this "harm"
only occurred because he was not provided access to the law
library and his legal materials and did not know there was a
page limit. However, the Magistrate Judge correctly points
out that Plaintiff was able to file a second motion just two
days later, which did comply with the page limit requirement.
Plaintiff cannot now argue the returned motion somehow
frustrated or impeded his efforts to pursue his claims when
the Motion is now being considered. Despite Plaintiff's
objection otherwise, it is clear his numerous filings dispel
his claims he suffered an irreparable harm from
Defendant's alleged denial of access to his materials,
the law library, or photocopying.Additionally, Plaintiff fails
to provide any other evidence of actual harm suffered in this
case. Thus, the Court agrees with the Magistrate
Judge's conclusion that Plaintiff fails to establish he
suffered an actual injury in order to warrant relief.
Plaintiff's remaining objections, they are also without
merit. For instance, whether the Magistrate Judge
characterized Plaintiff's sworn testimony as
"proffers" or discussed a "general
objection" does not change the conclusion that Plaintiff
is not entitled to the relief he seeks. Specifically, his
objections do not change that the Court lacks jurisdiction to
issue a preliminary injunction and that Plaintiff fails to
show immediate and irreparable harm will occur to warrant a
temporary restraining order. Accordingly, the Court agrees
Plaintiff filed a Motion for Limited Service of Process [Doc.
32] that is just a copy of his Objection to the Report and
Recommendation [Doc. 31]. For the same reasons previously
stated, this Motion is DENIED.
on the foregoing, the Recommendation of the United States
Magistrate Judge [Doc. 28] is ADOPTED and MADE THE ORDER OF
THE COURT. Plaintiffs Emergency Motions for Preliminary
Injunction and Motion for Limited Service of Process [Docs.
24, 25, 26, & 32] are DENIED.
 See Fed.R.Civ.P. 65(a)
("The court may issue a preliminary injunction only on
notice to the adverse party."); id. 65(b)(1)
("The court may issue a temporary restraining order
without written or oral notice to the adverse party or its
attorney only if: (A) specific facts in an affidavit or a
verified complaint clearly show that immediate and
irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and (B)
the movant's attorney certifies in writing any efforts
made to give notice and the reasons why it should not be
See Fed.R.Civ.P. 65(a);
Carillon Importers, Ltd. V. Frank Pesce Intern. Group
Ltd.,112 F.3d 1125, 126 (11th Cir. 1997) (per curiam)
("The grant or denial of a preliminary injunction is a
decision within the ...