ROSS v. MCCORMACK et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
Kevin Lee Ross
v. Case No. 24-cv-014-SDE-AJ
Andrew McCormack, et al.
REPORT AND RECOMMENDATION
Plaintiff Kevin Lee Ross, appearing pro se, is currently
confined in the Somerset County (Me.) Jail. He filed a complaint
(Doc. No. 1), naming as defendants a federal prosecutor and
probation officer, as well as two relatives Presently before the
court is plaintiff’s motion for injunction (Doc. No. 14), which
was referred to the undersigned Magistrate Judge for a report
and recommendation. See 28 U.S.C. § 636(b)(1)(B); LR 72(a). As
explained below, the district judge should deny plaintiff’s
motion because he failed to demonstrate a likelihood of success
on the merits or irreparable harm, and because he seeks relief
against a non-parties.
PRELIMINARY INJUNCTION STANDARD
Injunctive relief is “an extraordinary and drastic remedy
that is never awarded as of right.” Voice of the Arab World,
Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir.
2011) (citations and quotation marks omitted). “To grant a
preliminary injunction, a district court must find the following
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four elements satisfied: (1) a likelihood of success on the
merits, (2) a likelihood of irreparable harm absent interim
relief, (3) a balance of equities in the plaintiff's favor, and
(4) service of the public interest.” Arborjet, Inc. v. Rainbow
Treecare Sci. Advancements, Inc., 794 F.3d 168, 171 (1st Cir.
2015). The likelihood of success and irreparable harm are the
factors that weigh most heavily in the analysis. See Esso Std.
Oil Co. v. Monroig–Zayas, 445 F.3d 13, 18 (1st Cir. 2006). As
the party seeking injunctive relief, the plaintiff bears the
burden of establishing that the factors weigh in their favor.
See Diaz-Carrasquillo v. Garcia-Padilla, 750 F.3d 7, 10 (1st
Cir. 2014); Esso Standard Oil Co., 445 F.3d at 18.
FACTUAL ALLEGATIONS
The incarcerated plaintiff, who asserts that he is
litigating several civil and criminal cases, seeks an injunction
preventing Federal Marshals and federal and state jail personnel
from “separating [him] from [his] personal property and
especially [his] legal work, papers and research . . . .” Pltf.
Mot. (Doc. No. 14) at 1.
DISCUSSION
A. Likelihood of Success on the Merits
Plaintiff’s complaint in this case relates to actions taken
by the defendants in connection with his criminal prosecution.
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As the claims in this case do not involve denial of access to
his personal property or legal materials, this factor weighs
heavily against injunctive relief.
B. Irreparable Harm
“A plaintiff seeking preliminary relief [must] demonstrate
that irreparable injury is likely in the absence of an
injunction.’” Range of Motion Prod. LLC v. Armaid Co. Inc., No.
1:21-CV-00105-JDL, 2021 WL 3476607, at *10 (D. Me. Aug. 6, 2021)
(quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22
(2008)). By its own terms, plaintiff’s relief is contingent is
aimed at some future conduct, which is not alleged to be
imminent. “A finding of irreparable harm must be grounded on
something more than conjecture, surmise, or a party's
unsubstantiated fears of what the future may have in store.” Id.
(quoting Charlesbank Equity Fund II, Ltd. P'ship v. Blinds To
Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004). As the plaintiff
failed to demonstrate irreparable harm, this factor also weighs
against injunctive relief.
C. Enjoining Non-parties
As noted above, the requested injunctive relief targets
non-parties – Marshals and jail or prison personnel. But only
parties or those acting in concert with parties can be bound by
an injunction. See Fed. R. Civ. P. 65(d)(2). As neither the
complaint nor the instant motion suggests any connection between
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these defendants and entities that might be involved in
preventing plaintiff from accessing his belongings, an
injunction cannot issue.
CONCLUSION
Based on the foregoing, the district judge should deny
plaintiff’s motion for preliminary injunction. (Doc. No. 14).
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R. Civ.
P. 72(b)(2). The fourteen-day period may be extended upon
motion. Only those issues raised in the objection(s) to this
Report and Recommendation are subject to review in the district
court. See Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). Any issues not preserved by such
objection(s) are precluded on appeal. See id. Failure to file
any objections within the specified time waives the right to
appeal the district court's Order. See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
___________ ______________
Andrea K. Johnstone
United States Magistrate Judge
Sitting by designation.
August 7, 2024
cc: Kevin Lee Ross, pro se
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