United States District Court, W.D. New York
June 13, 2005.
CHRISTOPHER MOORE, Plaintiff,
OFFICER J. CASSELBERRY, OFFICER M. VANDERGRIFT, NURSE KAREN DYAL, SERGEANT PORTER, OFFICER MARSHAL, OFFICER SCOTT and OFFICER WORLE. Defendants.
The opinion of the court was delivered by: JOHN T. ELFVIN, Senior District Judge
MEMORANDUM and ORDER
Plaintiff, who is incarcerated in the Southport Correctional
Facility Correctional Facility, has requested permission to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and
has both met the statutory requirements and furnished the Court
with a signed Authorization. Accordingly, plaintiff's request to
proceed as a poor person is hereby granted. In addition,
plaintiff's complaint has been screened by the Court with respect
to the 28 U.S.C. §§ 1915(e) and 1915A criteria.
The Clerk of the Court is directed to file plaintiff's papers,
and to cause the United States Marshal to serve copies of the
Summons, Complaint, and this Order upon the named defendants
without plaintiff's payment therefor, unpaid fees to be
recoverable if this action terminates by monetary award in
Plaintiff has also moved for a temporary restraining order
pursuant to Federal Rule of Civil Procedure 65.
A temporary restraining order may be granted without
written or oral notice to the adverse party . . .
only if (1) it clearly appears from specific facts
shown by affidavit or by the verified complaint that immediate and irreparable injury,
loss, or damage will result to the applicant before
the adverse party . . . can be heard in opposition,
and (2) the applicant's attorney certified to the
court in writing the efforts, if any, which have been
made to give the notice and the reasons supporting
the claim that notice should not be required.
Fed R.Civ.P. 65(b). Plaintiff's papers do not comply with either
prong of the rule. Plaintiff does not describe any effort to
notify opposing parties of his motion for injunctive relief, and
his papers neither (1) demonstrate a likelihood of success on the
merits and irreparable injury, nor (2) raise serious questions
going to the merits, with the balance of hardship tipping in the
plaintiff's favor. Abdul Wali v. Coughlin, 754 F.2d 1015
(2d Cir. 1985), Paulsen v. County of Nassau, 925 F.2d 65
(2d Cir. 1991).
However, in view of the serious nature of plaintiff's
allegations, the Court will afford plaintiff an opportunity to
move for a preliminary injunction after the complaint has been
served. Defendants are specifically directly to address
plaintiff's motion for injunctive relief in their answer.
The Clerk of the Court is directed to ensure that all necessary paperwork
is submitted to the U.S. Marshal without delay, and the U.S. Marshal is
directed to serve the papers on defendants without delay.
Pursuant to 42 U.S.C. § 1997e(g)(2), the defendants are
directed to answer the complaint.
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