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Tatum v. Municipal Corp. of Bibb County

United States District Court, M.D. Georgia, Macon Division

April 11, 2018

JASON M TATUM, Plaintiff,
v.
MUNICIPAL CORPORATION OF BIBB COUNTY, et al., Defendant.

          ORDER AND RECOMMENDATION

          CHARLES H. WEIGLE UNITED STATES MAGISTRATE JUDGE

         This case is currently before the United States Magistrate for screening as required by the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a). Plaintiff Jason M Tatum, a pretrial detainee at the Bibb County Law Enforcement Center, filed the above-captioned proceeding seeking relief under 42 U.S.C. § 1983. Plaintiff also seeks to proceed without the prepayment of the Court's filing fee. As discussed below, it is RECOMMENDED that Plaintiff's complaint be DISMISSED WITHOUT PREJUDICE.[1] It is further RECOMMENDED that Plaintiff's motion for protective order (ECF No. 17) be DENIED. Plaintiff's motion for waiver of sovereign immunity (ECF No. 18) is frivolous and DENIED.

         I. Motion to Proceed In Form Pauperis

         Section 1915 allows the district courts to authorize the commencement of a civil action without prepayment of the normally-required fees upon a showing that the plaintiff is indigent and financially unable to pay the filing fee. 28 U.S.C. § 1915(b). A prisoner seeking to proceed in forma pauperis (“IFP”) under this section must provide the district court with both (1) an affidavit in support of his claim of indigence and (2) a certified copy of his prison “trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the complaint.” Id.

         In this case, Plaintiff's pauper's affidavit and trust account statement show that he is currently unable to prepay the Court's $350.00 filing fee. Plaintiff's motion to proceed in forma pauperis (ECF No. 16) is thus GRANTED. Plaintiff is, however, still obligated to pay the full balance of the filing fee, in installments, as set forth in § 1915(b) and explained below. It is thus requested that the CLERK forward a copy of this ORDER to the business manager of the facility in which Plaintiff is incarcerated so that withdrawals from his account may commence as payment towards the filing fee.

         A. Directions to Plaintiff's Custodian

         It is hereby ORDERED the warden of the institution wherein Plaintiff is incarcerated, or the Sheriff of any county wherein he is held in custody, and any successor custodians, each month cause to be remitted to the Clerk of this court twenty percent (20%) of the preceding month's income credited to Plaintiff's account at said institution until the remaining the $350.00 filing fee has been paid in full. In accordance with provisions of the Prison Litigation Reform Act, Plaintiff's custodian is hereby authorized to forward payments from the prisoner's account to the Clerk of Court each month until the filing fee is paid in full, provided the amount in the account exceeds $10.00. It is further ORDERED that collection of monthly payments from Plaintiff's trust fund account shall continue until the entire $350.00 has been collected, notwithstanding the dismissal of Plaintiff's lawsuit or the granting of judgment against him prior to the collection of the full filing fee.

         B. Plaintiff's Obligations Upon Release

         Pursuant to provisions of the Prison Litigation Reform Act, in the event Plaintiff is hereafter released from the custody of the State of Georgia or any county thereof, he shall remain obligated to pay any balance due on the filing fee in this proceeding until said amount has been paid in full; Plaintiff shall continue to remit monthly payments as required by the Prison Litigation Reform Act. Collection from Plaintiff of any balance due on the filing fee by any means permitted by law is hereby authorized in the event Plaintiff is released from custody and fails to remit payments. Plaintiff's complaint is subject to dismissal if he has the ability to make monthly payments and fails to do so.

         II. Motion for Protective Order

         The Court construes Plaintiff's motion for protective order as a motion for preliminary injunction. “A preliminary injunction is a drastic remedy used primarily to preserve the status quo rather than grant most or all of the substantive relief sought in the complaint.” Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir. 1983); Fernandez-Roque v. Smith, 671 F.2d 426, 429 (11th Cir. 1982). Such relief is only appropriate where the movant demonstrates that: (a) there is a substantial likelihood of success on the merits; (b) relief is necessary to prevent irreparable injury; (c) the threatened injury outweighs the harm that preliminary injunction would cause to the non-movant; and (d) granting relief would not be adverse to the public interest. Parker v. State Bd. of Pardons & Paroles, 275 F.3d 1032, 1034-35 (11th Cir. 2001).

         In this case, Plaintiff seeks to enjoin (1) the Defendants from retaliating against Plaintiff for filing this action and (2) the office for the Circuit Public Defender of Macon-Bibb County from representing Plaintiff in his currently pending state court criminal proceedings. “The chief function of a preliminary injunction is to preserve the status quo until the merits of the controversy can be fully and fairly adjudicated.” Powers v. Sec., Fla. Dept. of Corr., 691 Fed.Appx. 581, 583 (11th Cir. 2017) (quoting Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896 F.2d 1283, 1284 (11th Cir. 1990)). “Thus, a party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994); Pacific Radiation Oncology, LLC v. Queen's Medical Center, 810 F.3d 631, 636-37 (9th Cir. 2015) (“[M]any of our sister circuits have either adopted Devose explicitly or independently formulated an identical rule.”); Kaimowitz v. Orlando Fla., 122 F.3d 41, 43 (11th Cir. 1997).

         Plaintiff's request to enjoin hypothetical retaliation and his attorney's representation in his ongoing criminal proceedings have no relationship to the constitutional violations alleged in his complaint. Furthermore, Plaintiff's request for injunction is based on speculation that he will be retaliated against, which is insufficient to show irreparable injury. See Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (“As we have emphasized on many occasions, the asserted irreparable injury ‘must be neither remote nor speculative, but actual and imminent.”). Plaintiff has also failed to present any argument or facts in support of his motion which could lead this Court to conclude that Plaintiff has a substantial likelihood of success on the merits.

         Having failed to satisfy his burden on at least two of the four prerequisites for a preliminary injunction, and having failed to demonstrate that he seeks an injunctive relief related to the claims within his complaint, it is RECOMMENDED ...


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