United States District Court, N.D. Texas, Abilene Division
MITCHELL W. WAGNER, Prison ID # 1543049, Plaintiff,
TERRI WILKE, et al., Defendants.
REPORT AND RECOMMENDATION
SCOTT FROST UNITED STATES MAGISTRATE JUDGE.
Court has under consideration a Motion for a Temporary
Restraining Order and Preliminary Injunction (doc. 11) and
Plaintiff's request for an Emergency Preliminary
Injunction found within his original complaint (doc. 2). This
action has been referred pursuant to 28 U.S.C. Â§ 636(b).
Because Plaintiff has not consented to have all further
proceedings in this case conducted by a magistrate judge, the
undersigned issues this report and recommendation; directs
the Clerk of Court to reassign this case to Senior District
Judge Sam R. Cummings; and recommends that the Court deny the
motion and other request for preliminary injunction.
commenced this action by filing an original complaint (doc.
2) against four defendants for alleged denials of medical
care. Within that complaint, he asks the Court to issue a
preliminary injunction to prevent the four defendants from
retaliating against him for filing the lawsuit. He later
moved for a temporary restraining order and preliminary
injunction to assure that he receives proper medical care.
“may issue a preliminary injunction only on notice to
the adverse party.” Fed.R.Civ.P. 65(a)(1). Although
courts may issue a temporary restraining order
(“TRO”) without notice to the adverse party, it
may only do so 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
Fed. R. Civ. P. 65(b).
before a court may grant either a TRO or preliminary
injunction, the party seeking such relief must demonstrate
each of the following: (1) a substantial likelihood of
success on the merits; (2) “a substantial threat that
irreparable harm will result” unless the court grants
the requested injunction; (3) “the threatened injury
outweighs the threatened harm” to adverse parties; and
(4) granting the requested injunctive relief “will not
disserve the public interest.” Clark v.
Prichard, 812 F.2d 991, 993 (5th Cir. 1987). And the
irreparable injury must occur “during the pendency of
the litigation.” Justin Indus., Inc. v. Choctaw
Secs., L.P., 920 F.2d 262, 268 n.7 (5th Cir. 1990) (per
curiam). “An injunction is an extraordinary remedy and
should not issue except upon a clear showing of possible
irreparable harm.” Lewis v. S.S. Baune, 534
F.2d 1115, 1121 (5th Cir. 1976). Whether to issue an
injunction lies within the sound discretion of the trial
court. See Sepulvado v. Jindal, 729 F.3d 413, 417
(5th Cir. 2013) (preliminary injunction).
“addressing the second factor, speculation or the mere
risk of irreparable harm is not a sufficient showing of
irreparable harm.” Aon Re, Inc. v. TIG Ins.
Co., No. 3:09-CV-0300-B, 2009 WL 3075584, at *4 (N.D.
Tex. Sept. 28, 2009). A “present threat of substantial,
noncompensable harm” must exist. Id. (citing
Spiegel v. City of Houston, 636 F.2d 997, 1001 (5th
Cir. 1981)). “There can be no irreparable injury where
money damages would adequately compensate a plaintiff.”
DFW Metro Lines Servs. v. Sw. Bell Tel.
Co., 901 F.2d 1267, 1269 (5th Cir. 1990).
case, Plaintiff's requests for TRO and preliminary
injunction fail because he has not shown a substantial threat
of irreparable injury. With respect to the request concerning
retaliation by defendants, Plaintiff provides nothing beyond
speculation that they might retaliate against him. And even
if they were to retaliate against Plaintiff, he has shown no
substantial threat that such retaliation would cause any
irreparable injury. Similarly, Plaintiff's request for an
injunction to assure that he receives proper medical care
relates to claims that he has sore gums due to a lack of
dentures. He provides nothing to support a finding that there
is a substantial threat of irreparable harm during the
pendency of this action should the Court decline to issue the
requested TRO or preliminary injunction.
foregoing reasons, the Court should find no basis for finding
a substantial threat of irreparable injury. Accordingly, the
undersigned recommends that the Court DENY
Plaintiff's request for an Emergency Preliminary
Injunction found within his original complaint and
DENY the Motion for a Temporary Restraining
Order and Preliminary Injunction (doc. 11). Because the
parties have not consented to proceed before a United States
Magistrate Judge, the undersigned directs the Clerk of Court
to REASSIGN this case to Senior District
Judge Sam R. Cummings but maintain the reference to the
undersigned until further order of the Court. After the
reassignment, the undersigned may continue to exercise all
powers permitted by 28 U.S.C. § 636(b) unless otherwise
directed by court order.
of this Report and Recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to any part of this Report and Recommendation must file
specific written objections within 14 days after being served
with a copy. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). In order to be specific, an objection
must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and
specify the place in the magistrate judge's report and
recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to
the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or
adopted by the District Court, except upon grounds of plain
error. See Douglass v. United Servs. Auto. Ass'n
, 79 F.3d 1415, 1417 (5th Cir. 1996).