Dell v. Chambers Smith

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

DAVID DELL, : Case No. 2:23-cv-3167

:

Plaintiff, :

: Judge James L. Graham

vs. :

Magistrate Judge Karen L. Litkovitz

:

ANNETTE CHAMBERS SMITH, et al., :

:

Defendants. :

:

REPORT AND RECOMMENDATION

Plaintiff, an inmate at the Noble Correctional Institution (“NCI”), proceeding pro se,

initiated this action by filing a document captioned as “ORIGINAL ACTION for Damages,

Declaratory Relief, and Injunctive Relief under 42 U.S.C. § 1983, 42 U.S.C. § 1985, 28 U.S.C. §

2201 and 2202, 28 USC § 2283 and 2284 and Rule 65 of the Federal Rules of Civil Procedure,”

and titled “Motion for Emergency Preliminary Injunction.” (Doc. 1).1 After a Notice of

Deficiency was issued by the Court (see Doc. 2), plaintiff filed a motion for leave to proceed in

forma pauperis, a complaint, and a “Motion for an Order Certifying this Action as a Class

Action, Defining the Class, and Appointing Counsel.” (See Doc. 2, 3, 4).

By separate Order, plaintiff has been granted leave to proceed in forma pauperis. This

matter is before the Court for a sua sponte review of the complaint to determine whether the

complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to

1 Although plaintiff alleges that defendants contracted to deprive him of his tablet/property in the initial document

filed in this case, plaintiff indicates that he did not intend for the document to serve as a complaint, explaining that the

factual allegations supporting his claims would “more fully appear in the Complaint.” (Doc. 1 at PageID 2).

state a claim upon which relief may be granted or seeks monetary relief from a defendant who

is immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. §

1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).

Screening of Plaintiff’s Complaint

A. Legal Standard

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)(2) as part of

the statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B); Denton, 504 U.S. at 31. See also § 1915A(b). Thus, § 1915(e)

requires sua sponte dismissal of an action upon the Court’s determination that the action is

frivolous or malicious, or upon determination that the action fails to state a claim upon which

relief may be granted.

2 Formerly 28 U.S.C. § 1915(d).

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April

1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,

has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.

Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,

594 (6th Cir. 1989)).

B. Allegations in the Complaint

Plaintiff brings suit against defendants Annette Chambers-Smith, Director of the Ohio

Department of Rehabilitation and Corrections (ODRC), in her individual and official capacities,

as well as GTL/ViaPath, and JPay/Securus Technologies, alleging that defendants have

conspired and colluded to deprive plaintiff of personal property in violation of his constitutional

rights. Specifically, plaintiff alleges that defendants violated his rights under the Due Process

and Equal Protection Clauses of the Fourteenth Amendment, the First and Fifth Amendments,

and the Interstate Commerce Clause. (See Doc. 3-3, Complaint at PageID 27–28, 32-33).

The factual allegations concern the ODRC’s transition from the use of JPay tablets to

GTL/ViaPath tablets. Plaintiff alleges that in 2013 defendant Chambers-Smith or her

predecessor initially entered into a contract with defendant JPay to “provide prisoners with the

electronical capabilities of communicating with their families by email; sending/receiving

pictures and video grams; perform video visits; and to purchase videogames . . .; music . . .;

books . . .; as well as news feeds, movies, and educational programs[.]” (Id. at PageID 28–29).

If prisoners desired to do more than send emails, pictures, and video grams, prisoners were

required to obtain approval from the ODRC to purchase a JPay tablet via JPay/Securus. (Id. at

PageID 29). According to plaintiff, the cost of a JPay tablet ranged from $75.00 up to $140.00.

(Id. at PageID 29).

In 2017, plaintiff alleges that Chambers-Smith or her predecessor contracted with

GTL/ViaPath to supply phone tablets to prisoners, which would enable prisoners to make calls

from their cells as opposed to wall phones. At that time, plaintiff claims that ODRC policy

allowed prisoners to possess both a “JP Player with a previously authorized MP3 player,” and to

possess both a JPay tablet and a GTL/ViaPath tablet. (Id.).

However, in what plaintiff alleges was an attempt to “get rid of JPay,” Chambers-Smith

renegotiated the contract with GTL/ViaPath in 2020 to provide an updated GTL/ViaPath tablet

enabling prisoners to make calls, send text messages, and access digital content “without having

to access the JPay kiosks.” (Id.). According to plaintiff, Chambers-Smith and the ODRC knew

in 2020 that all JPay tablets purchased by prisoners would be confiscated if the GTL/ViaPath

contract was successful, but upgraded JPay tablets were offered to prisoners anyway. (Id. at

PageID 30).

Plaintiff alleges that the new GTL/ViaPath tablets were distributed to NCI inmates on

November 1, 2022. (Id. at PageID 29). Although prisoners were previously told that they would

be permitted to keep their JPay tablets, Chambers-Smith distributed a notice to all prisoners,

informing them the JPay tablets would be phased out on July 10, 2023. Prisoners were presented

with the choice to “send their legally purchased JPay tablets home by postage prepaid, or turn

them into ODRC staff by October 1, 2023.” (Id. at PageID 29). Plaintiff and other prisoners

were further informed that after October 1, 2023, the JPay tablets “will be considered contraband

and confiscated with simultaneous disciplinary action.” (Id.). Prisoners were told they would be

paid $10.00 for turning in their JPay tablet to ODRC staff in July of 2023, or $5.00 in the month

of August 2023, and would receive free video games for a year or a $2.99 credit if they had

already purchased a game package. (Id. at PageID 29-30, 46). Although plaintiff claims inmates

have spent over one-thousand dollars on video games, plaintiff alleges that prisoners have yet to

be compensated for their tablets or video games. (Id. at PageID 30).

Plaintiff seeks declaratory and injunctive relief, as well as monetary damages. (Id.).

C. Analysis.

The complaint is subject to dismissal at the screening stage. See 28 U.S.C. §

1915(e)(2)(B).

As an initial matter, the complaint should be limited to alleged violations of plaintiff’s

own rights. Plaintiff has filed a motion seeking class certification. (Doc. 4). However, “Federal

Rule of Civil Procedure 23(a)(4) generally does not permit pro se plaintiffs without legal training

to serve as class representatives.” Sanders v. Macauley, No. 22-1502, 2022 WL 16729580, at *5

(6th Cir. Aug. 10, 2022) (citing Garrison v. Mich. Dep’t of Corr., 333 F. App’x 914, 919 (6th

Cir. 2009) (holding that pro se litigants are “inadequate class representatives”)). Cf. Dodson v.

Wilkinson, 304 F. App’x 434, 438 (6th Cir. 2008). In this case, plaintiff has failed to

demonstrate that he would be an adequate class representative. See Sanders, 2022 WL

16729580, at *5 (finding that where the plaintiff “offered no basis from the general rule that pro

se plaintiffs are not adequate class representatives, the district court did not abuse its discretion

by denying class certification”). See also White v. Kasich, No. 2:12-cv-1125, 2013 WL 941440,

at *10 (S.D. Ohio Mar. 8, 2013) (Deavers, M.J.) (Report & Recommendation) (explaining that

the reason pro se prisoners are generally prohibited from bringing class actions is because they

are unable to “adequately to represent the interests of the class”), adopted, 2013 WL 1281887

(S.D. Ohio Mar. 27, 2013) (Smith, J.); Brown v. Collins, No. 2:07-cv-826, 2008 WL 818793, at

*2 (S.D. Ohio Mar. 24, 2008) (Kemp, M.J.; Frost, J.) (citing Palasty v. Hawk, 15 F. App’x 197,

200 (6th Cir. 2001)) (same); Marcum v. Jones, No. 1:06-cv-108, 2006 WL 543714, at *1 (S.D.

Ohio Mar. 3, 2006) (Dlott, J.) (and cases cited therein) (holding that the pro se inmate “may

bring his own claims to federal court without counsel, but not the claims of others”). Therefore

the complaint should be limited to alleged violations of plaintiffs’ own federal rights. Cf.

Dodson, 304 F. App’x at 438. See also Bradbury v. ODRC, Case No. 2:23-cv-2355, 2023 WL

6997143, at *1 (Morrison, J.; Deavers, M.J.) (S.D. Ohio Oct. 24, 2023) (finding that the plaintiff

“cannot bring class action litigation pro se” in a case with similar factual allegations).

Accordingly, plaintiff’s motion for class certification should be denied and the complaint limited

to alleged violations of plaintiff’s own rights.3

To the extent that plaintiff brings this action under 42 U.S.C. § 1985, his allegations are

insufficient to state an actionable claim. To plead a cause of action under § 1985, plaintiff must

allege that the defendants conspired together for the purpose of depriving plaintiff of the equal

protection of the laws; that the defendants committed an act in furtherance of the conspiracy that

caused injury to plaintiff; and that the conspiracy was motivated by a racial, or other class-based,

discriminatory animus. See Bruggeman v. Paxton, 15 F. App’x 202, 205 (6th Cir. 2001); see

also Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003) (and cases cited therein). “The

complaint thus must ‘allege both a conspiracy and some class-based discriminatory animus

behind the conspirators’ action.’” Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 367-68

(6th Cir. 2012) (quoting Newell v. Brown, 981 F.2d 880, 886 (6th Cir. 1992), in turn quoting

Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). In addition, conspiracy claims must be pled

with specificity; “vague and conclusory allegations unsupported by material facts will not be

sufficient to state such a claim.” Id. at 368 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39

3 Plaintiff’s motion also includes a request for the appointment of counsel, which should also be denied. The law does

not require the appointment of counsel for indigent plaintiffs in cases such as this, see Lavado v. Keohane, 992 F.2d

601, 604-05 (6th Cir. 1993), nor has Congress provided funds with which to compensate lawyers who might agree to

represent those plaintiffs. The appointment of counsel in a civil proceeding is not a constitutional right and is justified

only by exceptional circumstances. Id. at 605-06. See also Lanier v. Bryant, 332 F.3d 999, 1006 (6th Cir. 2003).

Moreover, there are not enough lawyers who can absorb the costs of representing persons on a voluntary basis to

permit the Court to appoint counsel for all who file cases on their own behalf. The Court makes every effort to appoint

counsel in those cases which proceed to trial, and in exceptional circumstances will attempt to appoint counsel at an

earlier stage of the litigation. No such circumstances appear in this case.

(6th Cir. 1987)). Here, plaintiff has not pleaded that any of the defendants were motivated by a

racial or class-based discriminatory animus. Moreover, plaintiff’s allegations are insufficient to

support any inference that the defendants were involved in a conspiracy, or in other words, that

the defendants “shared a common discriminatory objective.” See id. (citing Hinkle v. City of

Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996)). In the absence of any factual allegations

to support his vague and conclusory conspiracy claim, plaintiff fails to state a claim upon which

relief may be granted under § 1985.

To the extent that plaintiff alleges that the deprivation of his private property amounted to

a violation of his federal due process rights under 42 U.S.C. § 1983, this claim should also be

dismissed. In order to state a claim based on the loss of property, plaintiff must first “plead . . .

that state remedies for redressing the wrong are inadequate.” Vicory v. Walton, 721 F.2d 1062,

1066 (6th Cir. 1983). See also Hudson v. Palmer, 468 U.S. 517 (1984). “If satisfactory state

procedures are provided in a procedural due process case, then no constitutional deprivation has

occurred despite the injury.” Jefferson v. Jefferson County Pub. Sch. Sys., 360 F.3d 583, 587-88

(6th Cir. 2004). Accordingly, in order to state a procedural due process claim under section 1983

“the plaintiff must attack the state’s corrective procedure as well as the substantive wrong.”

Meyers v. City of Cincinnati, 934 F.2d 726, 731 (6th Cir. 1991) (quoting Vicory, 721 F.2d at

1066). A plaintiff “may not seek relief under Section 1983 without first pleading and proving

the inadequacy of state or administrative processes and remedies to redress [his] due process

violations.” Jefferson, 360 F.3d at 588.

Plaintiff has not alleged any facts even remotely indicating that his remedies under Ohio

law to redress the wrong of which he complains are inadequate. Plaintiff’s complaint fails to

explain why a state tort remedy for conversion would not suffice to address his claims. See Fox

v. Van Oosterum, 176 F.3d 342, 349 (6th Cir. 1999). See, e.g., Bradbury v. ODRC, Case No.

2:23-cv-2355, 2023 WL 6997143, at *1 (Morrison, J.; Deavers, M.J.) (S.D. Ohio Oct. 24, 2023)

(dismissing due process claim where JPay tablets were confiscated where plaintiff failed to

allege that Ohio’s post-deprivation tort remedies are inadequate). Therefore, plaintiff fails to

state a due process claim that is actionable in this § 1983 proceeding.4

Plaintiff’s claim that the tablet phase-out violated the Takings Clause of the Fifth

Amendment should also be dismissed. The Takings Clause, which is applicable to the states

through the Fourteenth Amendment, provides that “private property [shall not] be taken for

public use, without just compensation.” U.S. Const. Amend. V. See Brown v. Legal Found. of

Washington, 538 U.S. 216, 231-32 (2003) (“While it confirms the State’s authority to confiscate

private property, the text of the Fifth Amendment imposes two conditions on the exercise of such

authority: the taking must be for a ‘public use’ and ‘just compensation’ must be paid to the

owner.”). In this case, plaintiff has not made any allegation plausibly suggesting that his

property was taken for a public use. To the contrary, plaintiff alleges that the JPay tablets were

to be traded in or sent home due to a change in ODRC policy and service/media provider.

Absent any allegation plausibly suggesting plaintiff’s property was taken for a public use,

plaintiff’s Fifth Amendment takings claim should be dismissed. See, e.g., Neives v. Allison, Case

4 Plaintiff has also failed to state a claim upon which relief may be granted to the extent that he claims that defendants

violated ODRC policy in failing to allow prisoner to retain both JPay and ViaPath tablets. (See Doc. 3-3, Complaint

at PageID 29). An alleged failure to comply with an administrative rule or prison policy does not itself give rise to a

§ 1983 claim. See Hursey v. Anderson, No. 16-1146, 2017 WL 3528206, at *2 (6th Cir. Mar. 31, 2017) (“claims

related to violations of prison policies do not state a constitutional violation”).

The complaint also includes allegations that the tablet policies were not grievable. (Doc. 3-3, Complaint at PageID

30). However, to the extent that he may allege that defendants interfered with the exhaustion of his claims, plaintiff

fails to state a claim upon which relief may be granted. While the Prison Litigation Reform Act’s exhaustion

requirement is “mandatory,” with steps to exhaustion defined by the prison’s grievance process, Jones v. Bock, 549

U.S. 199, 211 (2007), an inmate need only exhaust “available” remedies under the statute, not unavailable ones, Ross

v. Blake, 136 S. Ct. 1850, 1858 (2016). See also Paolone v. Altiere, No. 4:12CV1344, 2012 WL 5463871, at *3 (N.D.

Ohio Nov. 8, 2012) (“A corrections officer therefore cannot prevent an inmate from proceeding to court by refusing

to accept a grievance or an appeal.”).

No. 1:22-cv-1020, 2023 WL 5956981, at *3 (E.D. Cal. Sept. 13, 2023) (finding that plaintiff’s

allegation of a takings clause violation for confiscation of JPay tablets insufficient to state a

claim for relief where the plaintiff did not allege the deprivation was for public use) (Report and

Recommendation) (pending); Peterka v. Dixon, No. 4:21-cv-367, 2023 WL 3402613, at *6 (N.D.

Fla. Mar. 17, 2023) (finding that a shared profit between the Florida Department of Corrections

and JPay itself to be insufficient to show a taking for public use) (Report and Recommendation),

adopted, 2023 WL 3124718 (N.D. Fla. Apr. 27, 2023).

Plaintiff’s conclusory allegations are also insufficient to state a claim for relief under the

Equal Protection Clause. (See Doc. 3-3, Complaint at PageID 27, 28). “The Equal Protection

Clause prohibits discrimination by government which either burdens a fundamental right, targets

a suspect class, or intentionally treats one differently than others similarly situated without any

rational basis for the difference.” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681-82

(6th Cir. 2011) (citing Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005)).

To state a claim for discrimination under the equal protection clause, plaintiff must allege

sufficient facts to show that a state actor intentionally discriminated against him because of his

membership in a protected class. Simpson v. Ameji, 57 F. App’x 238, 239 (6th Cir. 2003) (citing

Henry v. Metropolitan Sewer Dist., 922 F.2d 332, 341 (6th Cir. 1990)). Plaintiff has failed to

allege any facts whatsoever showing that defendants treated plaintiff differently or denied him

any rights because of his membership in a protected class. Nor has plaintiff alleged any facts

that permit an inference that defendants acted with animus or ill will. Finally, plaintiff has not

alleged any facts that show he was treated differently than any other person under similar

circumstances. To the contrary, the complaint and attachments indicate that the JPay tablet

phase-out applied uniformly to all ODRC prisoners. For these reasons, plaintiff has failed to

state a claim for a violation of his equal protection rights under the Fourteenth Amendment.

Plaintiff has also failed to state an actionable First Amendment claim. (See Doc. 3-3,

Complaint at PageID 32). To the extent that plaintiff alleges that he is being denied protected

free speech, an exhibit attached to the complaint indicates that “[a]ll content (EXCEPT for

games) will transfer from JPay to ViaPath[.]” (Doc. 3-3, Complaint at PageID 48).

Additionally, even assuming that video games are protected by the First Amendment, see Brown

v. Entertainment Merchants Ass’n, 564 U.S. 786, 790 (2011), plaintiff does not allege that he is

prohibited from playing video games on the new device. Cf. Printup v. IDOC, No.

222CV00235, 2023 WL 2093733, at *2 (S.D. Ind. Jan. 26, 2023) (finding that requirement that

inmates pay for replacement tablet did not violate First Amendment). Indeed, the exhibits

attached to the complaint indicate that inmates would receive “FREE ViaPath games for a Year”

as part of the JPay tablet phase-out. (See Doc. 3-3, Complaint at PageID 46, 48). Plaintiff

essentially alleges that defendants are depriving him of previously purchased video games—a

claim that sounds in Fourteenth Amendment due process. However, as discussed above, plaintiff

has failed to state a due process claim in connection with the deprivation of his property.

Finally, plaintiff’s claims brought under 28 U.S.C. §§ 2201, 2202, 2283, and 2284, as

well as the Interstate Commerce Clause, should also be dismissed. 28 U.S.C. §§ 2201 and 2202

do not provide plaintiff with a private cause of action.5 28 U.S.C. §§ 2283 and 2284 do not

5 The Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, does not confer an individual cause of action and instead

“is an ‘enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant’ to have a

case heard in federal court.” Childress v. Skaggs, No. 1:13-CV-115-M, 2013 WL 6633959, at *3 n.3 (W.D. Ky. Dec.

17, 2013) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (quoting Pub. Serv. Comm’n v. Wycoff Co.,

344 U.S. 237, 241 (1952))). As such, no cause of action exists under 2201 or 2202.

apply to the case at hand.6 Finally, plaintiff has failed to allege any facts to plausibly suggest a

violation of the Interstate Commerce Clause (see Doc. 3-3, Complaint at PageID 32), which

provides the United States Congress with the power “[t]o regulate commerce with foreign

Nations, and among the several States, and with the Indian Tribes.” Art. 1, Sect. 8, Clause 3 of

the U.S. Constitution. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

Accordingly, in sum, the complaint should be dismissed for failure to state a claim upon

which relief may be granted.

D. Preliminary Injunction Motion

Plaintiff has also filed a motion for a preliminary injunction. (Doc. 1). Plaintiff asks the

Court “to force the Defendants to Cease and Desist all actions whereby they are attempting to

confiscate and/or force prisoners to send home personal property (JPay tablets).” (Id. at PageID

1).

In determining whether to issue a preliminary injunction, this Court must balance the

following factors:

1. Whether the party seeking the injunction has shown a “strong” likelihood

of success on the merits;

2. Whether the party seeking the injunction will suffer irreparable harm

absent the injunction;

3. Whether an injunction will cause others to suffer substantial harm; and

4. Whether the public interest would be served by a preliminary injunction.

6 Section 2284 does not confer plaintiff with a private right of action as it simply allows the district court to convene

a three-judge panel to consider the constitutionality of apportionment of congressional districts or statewide legislative

bodies. See 28 U.S.C. § 2284. This statue is not relevant to any of the plaintiff’s allegations.

Section 2283, referred to as “The Anti-Injunction Act,” is a “general statute, limiting the power of federal courts to

issue injunctions.” N. L. R. B. v. Nash-Finch Co., 404 U.S. 138, 146 (1971). It provides that “[a] court of the United

States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of

Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283.

Here, in the absence of a State court proceeding, Section 2283 does not apply.

Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689-90 (6th Cir. 2014); Overstreet v. Lexington-

Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citing Leary v. Daeschner, 228

F.3d 729, 736 (6th Cir. 2000)). The four factors are not prerequisites but must be balanced as

part of a decision to grant or deny injunctive relief. In re DeLorean Motor Co., 755 F.2d 1223,

1229 (6th Cir. 1985). “[A] district court is not required to make specific findings concerning

each of the four factors used in determining a motion for preliminary injunction if fewer factors

are dispositive of the issue.” Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003),

abrogated on other gds. by Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015).

“The purpose of a preliminary injunction is to preserve the status quo until a trial on the

merits.” S. Glazer’s Distributors of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 848-

49 (6th Cir. 2017) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). When a

prisoner requests an order enjoining a state prison official, the Court must “proceed with caution

and due deference to the unique nature of the prison setting.” White v. Corr. Med. Servs., No.

1:08-cv-277, 2009 WL 529082, at *2 (W.D. Mich. Mar. 2, 2009) (citing Kendrick v. Bland, 740

F.2d 432, 438 n. 3 (6th Cir. 1984); Ward v. Dyke, 58 F.3d 271, 273 (6th Cir. 1995)). In deciding

if a preliminary injunction is warranted, the Court must “weigh carefully the interests on both

sides.” Lang v. Thompson, No. 5:10-cv-379-HRW, 2010 WL 4962933, at *4 (E.D. Ky. Nov. 30,

2010) (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)). A preliminary injunction is

an extraordinary remedy that should only be granted “upon a clear showing that the plaintiff is

entitled to such relief.” S. Glazer’s Distributors of Ohio, LLC, 860 F.3d at 849 (quoting Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)); see also Overstreet, 305 F.3d at 573.

Plaintiff has not alleged facts sufficient to warrant a preliminary injunction in this case.

For the reasons underlying the recommendation that plaintiff’s complaint be dismissed, plaintiff

has failed to demonstrate a strong likelihood of success on the merits. Further, a preliminary

injunction is also not warranted in this case because the purpose of a preliminary injunction—to

preserve the status quo until a trial on the merits can be held, see Southern Milk Sales, Inc. v.

Martin, 924 F.2d 98, 102 (6th Cir. 1991)—would not be served. The remedy plaintiff presently

seeks is more than an injunction maintaining the status quo; he seeks an Order from this Court

requiring the correction of deficiencies yet to be proven. Such affirmative relief is generally

beyond the scope and purpose of preliminary injunctive relief. See id.

Plaintiff’s motion for a preliminary injunction (Doc. 1) should be denied.

IT IS THEREFORE RECOMMENDED THAT:

1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§

1915(e)(2)(B) and 1915A(b)(1).

2. Plaintiff’s pending motion for class certification and the appointment of counsel

(Doc. 4) be DENIED.

3. Plaintiff’s request for a preliminary injunction (see Doc. 1) be DENIED.

4. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an

appeal of any Order adopting this Report and Recommendation would not be taken in

good faith and therefore deny plaintiff leave to appeal in forma pauperis. See

McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).

NOTICE REGARDING OBJECTIONS:

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s) of the

R&R objected to, and shall be accompanied by a memorandum of law in support of the

objections. A party shall respond to an opponent’s objections within FOURTEEN DAYS after

being served with a copy of those objections. Failure to make objections in accordance with this

procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States

v. Walters, 638 F.2d 947 (6th Cir. 1981).

December 18, 2023 Fors A Kethev?,

Karen L. Litkovitz

UNITED STATES MAGISTRATE JUDGE

15