Strahan v. OReilly et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Richard Maximus Strahan
v. 	Case No. 22-cv-52-LM
Sean O’Reilly, Patrick Costin,
Joseph Digregorio, James Decker,
and Cheri Patterson
REPORT AND RECOMMENDATION
Pro se plaintiff Richard Maximus Strahan has moved for a
temporary restraining order (TRO) (Doc. No. 4) against several
New Hampshire state and local police officers and an official of
the New Hampshire Fish and Game Department. See Fed. R. Civ. P.
65. 	He seeks to have the defendants enjoined from
“[i]nterfering further is [sic] his ability to be a licensed
driver in New Hampshire” or “[a]rresting him for any violation
associated with his having a lawful” New Hampshire driver’s
license, without prior court approval. Pltff. Mot. (Doc. No. 4)
¶¶ 1-2. 	Mr. Strahan’s motion was referred to the undersigned
Magistrate Judge for proposed findings and recommendations. 	See
February 9, 2022, Endorsed Order; 28 U.S.C. § 636(b)(1)(B). The
defendant has not been served in this case, as preliminary
review has yet to be completed. 	See 28 U.S.C. 1915(e)(2); LR
4.3(2). 	As set forth in more detail below, plaintiff’s motion
should be denied without prejudice.
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Background
According to the complaint (Doc. No. 1), to which the
plaintiff refers the court for the factual allegations
supporting his motion, defendants Decker, Digregorio and
Patterson unlawfully commanded the New Hampshire Department of
Motor Vehicles to revoke plaintiff’s driver’s license and
suspend his vehicle registration in 2019. Plaintiff was not
notified of the suspension or revocation. 	In February 2019,
plaintiff was arrested by defendants O’Reilly and Costin for
driving an unregistered car without a license. The charges were
nol prossed and in April 2019, Mr. Strahan’s license and vehicle
registration were restored.
Mr. Strahan claims that Decker, Digregorio, and Patterson
were retaliating against him for filing a suit against the State
of New Hampshire under the Endangered Species Act. 	He asserts
that Patterson and Digregorio began plotting in 2017, conspiring
to get Mr. Strahan expelled from the University of New
Hampshire, to have his commercial fishing license revoked, and
eventually soliciting Decker to file false criminal motor
vehicle charges against him.
Discussion
Pursuant to Fed. R. Civ. P. 65, the court may issue a TRO
without written or oral notice to the adverse party or its
attorney only if:
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(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 [or the movant proceeding
pro se] certifies in writing any efforts made to give
notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). 	“‘[T]he requirements of Rule 65(b)(1)
are not mere technicalities but establish minimum due process.
Thus, [t]o obtain ex parte relief, a party must strictly comply
with those requirements.” 	Woodard-CM, LLC v. Sunlord Leisure
Prods., Inc., Case No. 20-23104-CIV-WILLIAMS, 2020 U.S. Dist.
LEXIS 173105, at *2, 2020 WL 5547917, at *1 (S.D. Fla. July 29,
2020).
In this case, the plaintiff has failed to satisfy either
requirement of Rule 65. 	First, Mr. Strahan has failed to
demonstrate that “immediate and irreparable injury, loss, or
damage will result to [him] before the adverse part[ies] can be
heard in opposition,” as required by Fed. R. Civ. P.
65(b)(1)(A). 	The complaint indicates that Mr. Strahan’s license
and registration were restored in April 2019. 	In addition, the
most recent allegation against any defendant is that “DiGregorio
personally sought Strahan out on several occasions . . .
continually through 2020.” Compl. (Doc. No. 1) ¶ 18. 	Nothing in
these allegations suggests the immediacy necessary to support
Mr. Strahan’s request for ex parte relief.
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As to the second requirement for a TRO, Mr. Strahan has
given no indication that he has attempted to give notice to the
defendants or why such notice should not be required. 	See Fed.
R. Civ. P. 65(b)(1)(B).
Conclusion
For the foregoing reasons, plaintiff’s motion for a TRO
(Doc. No. 4) should be denied. 	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
Natl 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
February 16, 2022
cc: 	Richard M. Strahan, pro se
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