Smith v. Hogan

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GERALD K. SMITH, : Case No. 2:24-cv-02620

:

Plaintiff, : District Judge Michael H. Watson

: Magistrate Judge Caroline H. Gentry

vs. :

:

D. HOGAN, et. al., :

:

Defendants. :

REPORT AND RECOMMENDATION

This civil rights case is before the Court on Plaintiff Smith’s recent Motion asking

this Court to issue a temporary restraining order (“TRO”) or preliminary injunction to

London Correctional Institution (“LCI”) and/or the Ohio Department of Rehabilitation &

Correction (“ODRC”). (Doc. No. 46.) In the Motion, Plaintiff expresses concern about

how mail to him from the Court is being handled at LCI under a new ODRC policy

affecting legal mail. (Id.)

Specifically, Plaintiff complains about a policy that requires incoming legal mail

to be treated in a new way at certain institutions. He attaches a document containing the

following policy language:

VI.B Legal Mail Procedures

1. Legal mail will be opened in the presence of the Incarcerated Person by

a mailroom staff member or warden’s designee in the designated legal

mail area.

2. If anything is found to be suspicious, or needs further investigation, the

entire document and the envelope will be confiscated. See section C for

procedures concerning suspected contraband.

3. If the legal mail does not appear suspicious, or does not need further

investigation, a designate staff member will proceed as follows:

i. The staff member will copy the document in the presence of the

Incarcerated Person using the designated legal mail copier with

no memory capability and allow the Incarcerated Person to

review the copy to ensure it contains the same number of pages

as the original document.

ii. If the Incarcerated Person acknowledges that the copy contains

the correct number of pages and is legible, the Incarcerated

Person shall sign the Legal Mail Log (DRC2632) acknowledging

that they were shown the original legal mail [and] took

possession of the copy. No additional copies will be made.

iii. Once the Incarcerated Person accepts the copy, the original

document will be shredded in the presence of the Incarcerated

Person using the designated legal mail shredding equipment.

iv. If the Incarcerated Person disputes that the copy matches the

original, staff will check to see if an error was made, and if so,

correct it.

v. If the Incarcerated Person refuses to sign and acknowledge

accepting the copy of the legal mail after any corrections have

been made, the copy shall be shredded, and the original legal

mail confiscated. The confiscated legal mail shall be returned to

sender with “refused to accept delivery” placed on the outside of

the envelope.

(Doc. No. 46 at PageID 253-254.)1

1 Much of this language appears to have been included in ODRC Policy No. 75-MAL-03, titled

Incarcerated Population Legal Mail, effective September 23, 2025. A copy is currently available online at

https://drc.ohio.gov/about/resource/policies-and-procedures/75-mal-incarcerated-person-mail-and-

printed-materials/incarcerated-population-legal-mail (last visited September 29, 2025). Notably, this

Policy also states that: “All mail bearing a valid return address of a federal court shall be treated as legal

mail. Federal court mail does not need a control number to be processed as legal mail.”

Instead of receiving a copy, as required by the new policy, Plaintiff wants to

receive the original legal mail or have the option to send it home. (Doc. No. 46 at PageID

249.) Plaintiff asks that the Court order “ODRC to stop hindering Plaintiff from receiving

Legal Mail” and to “please issue another Order regarding legal mail, stating that my

Matrix/original documents should not be destroyed and that I should be allowed to have

them and or if copied, I should be able to keep them after inspection.” (Id. at PageID

250.) For the following reasons, the undersigned Magistrate Judge RECOMMENDS that

the Court DENY Plaintiff’s Motion.

First, this case, Case No. 2:24-cv-02620, does not concern legal mail. This case

concerns Plaintiff’s allegations that he was repeatedly denied access to toilets and

washbasins. (See Second Amended Complaint, Doc. No. 21.) A TRO or preliminary

injunction is generally not appropriate to address issues unrelated to the facts and claims

alleged in the complaint:

“[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). This is because “[t]he purpose of interim equitable relief is

to protect the movant, during the pendency of the action, from being

harmed or further harmed in the manner in which the movant contends [he]

was or will be harmed through the illegality alleged in the complaint.”

Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th

Cir. 1997).

Berryman v. Stephenson, No. 2:21-cv-10925, 2023 WL 8788785, at *6 (E.D. Mich. Aug.

30, 2023), report and recommendation adopted, 2025 WL 2496393 (E.D. Mich. Aug. 29,

2025) (denying TRO in part “because his complaint made no mention of withholding of

medical treatment for his eye, he cannot use a PI or TRO as a mechanism to obtain relief”

on that issue).

Here, Plaintiff’s Second Amended Complaint does not address how legal mail is

treated under ODRC policy. (See Doc. No. 21.) It is not clear that the policy Plaintiff

challenges even existed at the time that complaint was submitted. (Compare id. at PageID

137 [complaint verified on March 14, 2025] with TRO Motion, Doc. No. 46 at PageID

252 [attaching ODRC policy variance request, effective June 1, 2025].) Even if the policy

did exist, there is no apparent link between the issue raised in the Motion and the

question of whether Defendants violated Plaintiff’s rights by refusing him access to

restrooms.

Second, neither LCI nor ODRC—the entities that Plaintiff wants to enjoin—are

parties to this case. While an injunction may bind persons other than parties in some

instances, see Fed. R. Civ. P. 65(d)(2), it “ordinarily cannot be imposed on a non-party

that has not had the opportunity to contest its liability.” Dates v. HSBC, 721 F. Supp. 3d

616, 625 (S.D. Ohio 2024) (quoting Terves LLC v. Yueyang Aerospace New Materials

Co., No. 1:19-cv-1611, 2022 WL 2834743, at *3 (N.D. Ohio July 20, 2022)). Here,

nothing in Plaintiff’s Motion provides any justification for granting a TRO or injunction

against non-parties.

Third, Plaintiff has not shown he is entitled to the extraordinary relief of a

TRO/preliminary injunction under the relevant standards. See Stinson’s Indus. Maint.,

Inc. v. PMC Grp. N.A., Inc., No. 2:22-cv-2253, 2022 WL 1509134, at *2 (W.D. Tenn.

May 12, 2022) (quoting Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566,

573 (6th Cir. 2002)) (“Like a preliminary injunction, a TRO ‘is an extraordinary remedy

which should be granted only if the movant carries his or her burden of proving that the

circumstances clearly demand it.’”). Plaintiff has not substantively dealt with the relevant

factors to be balanced2 beyond a cursory nod to them. (Doc. No. 46 at PageID 250

[alleging “immediate and irreparable injury, loss, and damage” and asserting that it would

cost the ODRC nothing to allow legal mail into LCI].) And entering another order about

court mail would change, rather than maintain, the status quo. Procter & Gamble Co. v.

Bankers Tr. Co., 78 F.3d 219, 226 (6th Cir. 1996) (noting that the purpose of a TRO is

“to preserve the status quo so that a reasoned resolution of a dispute may be had.”).

Fourth, Plaintiff appears to be contributing to the injury he complains about. He

asserts in his Motion that the ODRC is “hindering [him] from receiving Legal Mail” and

that he needs to know what is happening in this case. (Doc. No. 46 at PageID 248, 250.)

But Plaintiff also admits that he has refused to accept such mail from the Court, because

he would prefer to have originals rather than copies. (See id. at PageID 249 [“The

Warden then said he would check to see if I could at least send my original documents

home, but to follow the new procedure for now. So I did and refused to accept the legal

2 In determining whether to grant or deny injunctive relief, the Court must consider four factors: (1)

whether the movant has shown a strong or substantial likelihood of success on the merits; (2) whether the

movant will suffer irreparable injury without an injunction; (3) whether issuance of an injunction would

cause substantial harm to others; and (4) whether the public interest would be served by issuance of an

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

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

F.3d 729, 736 (6th Cir. 2000)). “These factors are not prerequisites which must be met, but are

interrelated considerations that must be balanced together.” Northeast Ohio Coal. for Homeless, 467 F.3d

at 1010 (quoting Mich. Coal of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th

Cir. 1991)).

mail on the condition that they would shred it once copied.”]; see also Doc. Nos. 45, 48,

49, 50 [reflecting that mail from the Court to Plaintiff was returned because it was

“Refused by Inmate”].) It thus appears that Plaintiff’s refusal to accept copies of mail

from this Court is the primary reason he lacks information about the status of the case.

(See Doc. No. 46 at PageID 250.)

Finally, although Plaintiff purports to be seeking injunctive relief, he may simply

be seeking to enforce an Order issued earlier in this case, which he says conflicts with the

new policy. (Doc. No. 46 at PageID 250 [“this is contradictory to your initial Order . .

.”].) In October 2024, the undersigned ordered that mail from this Court to this Plaintiff

in this case be treated as legal mail:

In order to manage the case in a timely and efficient manner, the undersigned

United States Magistrate Judge hereby ORDERS that mail from this Court

addressed to Plaintiff in this case is legal mail under Sallier v. Brooks, 343

F.3d 868, 877 (6th Cir. 2003). See generally Vinson v. Brown, No. 2:23-cv-

80, 2024 U.S. Dist. LEXIS 4128 (S.D. Ohio Jan. 8, 2024) (discussing the

“legal mail” issue). The Ohio Department of Rehabilitation and Correction

is ORDERED to treat the Court’s mail to Plaintiff in this case as legal mail

regardless of whether it bears a “control number.”

(Doc. No. 5 at PageID 53.) This Order does not differentiate between copies and originals

of documents. (Id.)

Because the earlier Order does not specifically address the original/copies issue

Plaintiff has raised; because the merits of the new policy are not before the Court in this

case; because there has been no briefing on the substance of the policy or argument on

the relevant factors under Rule 65; because the LCI and ODRC are not parties to this

action, and for the other reasons cited above, the undersigned Magistrate Judge concludes

that the requested extraordinary relief should not be granted. The undersigned therefore

RECOMMENDS that the Court DENY Plaintiff’s Motion for a TRO or preliminary

injunction. (Doc. No. 46.)

The Clerk of Court is DIRECTED to mail to Plaintiff a copy of the following

documents, which his Motion suggests he may not have received:

1. ORDER CONCERNING MAIL FROM THIS COURT, Doc. No. 5;

2. ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE

SURREPLY TO DEFENDANTS’ MOTIONS TO DISMISS, Doc. No. 41;

3. ORDER, Doc. No. 42; and

4. A print-out of the docket.

Plaintiff may file objections to this Report and Recommendation in the manner

described at the end of this opinion. He is ADVISED that he must keep this Court

informed of his address while this case is pending and promptly file a Notice of New

Address if he is transferred or released.

IT IS SO RECOMMENDED.

/s/ Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge

Notice Regarding Objections to this Report and Recommendations

If any party objects to this Report and Recommendations (“R&R”), the party may

serve and file specific, written objections to it within fourteen (14) days after being

served with a copy thereof. Fed. R. Civ. P. 72(b). 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. The Court may extend the fourteen-day objections period if a

timely motion for an extension of time is filed.

A District Judge of this Court will make a de novo determination of those portions

of the R&R to which objection is made. Upon proper objection, a District Judge of this

Court may accept, reject, or modify, in whole or in part, the findings or recommendations

made herein, may receive further evidence or may recommit this matter to the Magistrate

Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the R&R will result in

a waiver of the right to have the District Judge review the R&R de novo, and will also

operate as a waiver of the right to appeal the decision of the District Court adopting the

R&R. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981).