The opinion of the court was delivered by: JOE McDADE, Chief Judge
Before the Court is Plaintiff John E. Covington's Motion for
Temporary Restraining Order and/or Preliminary Injunction [Doc.
#19]; and his Further Motion for Temporary Restraining Order
and/or Preliminary Injunction [Doc. #21]. For the reasons that
follow, Plaintiff's Motions are denied.
On July 28, 2005, Plaintiff filed a complaint against the
United States Department of Justice ("DOJ") and Officer Jim Smith
raising constitutional claims under 42 U.S.C. § 1983 and Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971). With
permission of the Court, Plaintiff amended his complaint dropping
the DOJ as a defendant but reasserting his claims against Officer
Smith. On November 10, 2005, Plaintiff filed the instant Motion
seeking a temporary restraining order ("TRO") and/or a
preliminary injunction against Officer Smith. In support of his Motion, Plaintiff alleges that Defendant
engaged in the following acts while searching for his 23 year-old
fugitive son: (1) arrested Plaintiff for outstanding warrants
after illegally entering his home on May 5, 2003; (2) harassed
Plaintiff after attempting to enter his home on November 1, 2004;
(3) arrested Plaintiff for traffic violations and obstructing the
police after illegally entering his home without a warrant on
October 8, 2004; (4) harassed Plaintiff on or about July 8, 2005;
and (5) harassed Plaintiff on October 1, 2005, by lurking in his
neighborhood in an unmarked police car. Based on these events,
Plaintiff seeks to enjoin Defendant and all others acting in
concert with him from: (1) further deprivations of his civil
rights; (2) entering his home (with the exception of an emergency
response); (3) further threats of harassment; and (4) whatever
else the Court deems just and proper.
As a threshold matter, a court may not grant a TRO absent the
submission of an affidavit or verified complaint pointing to
specific facts which clearly indicate that the applicant will
suffer immediate and irreparable harm prior to the adverse party
receiving notice and an opportunity to be heard. See
Fed.R.Civ.P. 65(b). Plaintiff in the instant matter has neither filed an affidavit nor a verified complaint with the Court.
Furthermore, the adverse party has already received notice of
Plaintiff's Motion, and has responded. See Def. Resp. [Doc
#20]. Therefore, the instant Motion will be viewed simply as a
motion for preliminary injunction.*fn1 See Levas v. Vill.
of Antiotch, 684 F.2d 446, 448 (7th Cir. 1982) (holding that a
court should treat a TRO as one for preliminary injunction when
the adverse party has notice and an opportunity to be heard).
"Preliminary injunctive relief is an extraordinary remedy and
should be granted only in limited circumstances." Kos Pharms.,
Inc. v. Andrx Corp., 369 F.3d 700
, 708 (7th Cir. 2004) (internal
quotations omitted). To help the district courts determine which
circumstances warrant such relief, the Seventh Circuit
articulated a five-part test:
A party seeking a preliminary injunction must
demonstrate that (1) the moving party has a
reasonable likelihood of success on the merits; (2)
no adequate remedy at law exists; (3) the moving
party will suffer irreparable harm without injunctive
relief; (4) the irreparable harm suffered without
injunctive relief outweighs the irreparable harm the
defendant will suffer if the injunction is granted; and (5) the injunction will
not harm the public interest. In order to prevail,
the plaintiff must satisfy each element of this
Rust Env't & Infrastructure v. Teunissen, 131 F.3d 1210, 1213
(7th Cir. 1997) (citations omitted).
A preliminary injunction will not issue, unless a plaintiff can
first demonstrate that he has a reasonable likelihood of
succeeding on the merits of his case. This threshold, however, is
low. See Roland Mach. Co. v. Dresser Indus., Inc.,
749 F.2d 380, 387 (7th Cir. 1984). In fact, a plaintiff need only show
"that [he] has a better than negligible chance of succeeding on
the merits." Meridian Mut. Ins. Co. v. Meridian Ins. Group,
128 F.3d 1111, 1114 (7th Cir. 1997); see also Barbecue Marx,
Inc. v. 551 Ogden, Inc., 235 F.3d 1041, 1043 (7th Cir. 2000).
In addition to demonstrating a likelihood of success on the
merits, a plaintiff must also show that he has no adequate remedy
at law and will suffer irreparable harm absent injunctive relief.
Roland Mach., 749 F.2d at 386. But "[w]here the only remedy
sought at trial is damages, the two requirements irreparable
harm, and no adequate remedy at law merge. The question is then
whether the plaintiff will be made whole if he prevails on the
merits and is awarded damages." Id. "Only if he will suffer
irreparable harm in the interim that is, harm that cannot be
prevented or fully rectified by the final judgment after trial can he get a preliminary injunction."
Id. In essence, "the plaintiff must show that an award of
damages at the end of trial will be inadequate," that is, an
award of damages is "seriously deficient as a remedy for the harm
suffered." Id. Moreover, if the plaintiff "can easily wait till
the end of trial to get [his] relief[,]" he has suffered no
irreparable harm. Id.
Once the plaintiff clears these three hurdles, the court must
then weigh the amount of irreparable harm that the defendant can
show he will suffer if the injunction is granted versus the
amount of irreparable harm that the plaintiff will suffer if the
preliminary injunction is denied. Roland Mach.,
749 F.2d at 387. Finally, if granting or denying a preliminary injunction
will have consequences beyond the immediate parties, the Court
must then consider the possible effect its decision will have on
the "public interest" at stake. Id. at 388.
The Court first cautions that the legal analysis to follow is
tentative because the purpose of a preliminary injunction is to
preserve the status quo until the merits of the case have been
determined; it is not to serve as the last word on factual and
legal disputes between the parties. See Teunissen,
131 F.3d at 1213; Indianapolis Colts v. Metro. Baltimore Football Club Ltd. P'ship, 34 F.3d 410, 412 (7th Cir. 1994); Office Mates 5,
North Shore, Inc. v. Hazen, 234 Ill. App. 3d 557, 567-68
(1st Dist. 1992). With this in mind, the Court will now turn
to the merits of Plaintiff's constitutional claims under § 1983
and Bivens before addressing the remainder of the preliminary
injunction factors. See Meridian Mut., 128 F.3d at 1121
(emphasizing that district courts should examine, if only
briefly, each of the preliminary injunction factors).
A. Reasonable Likelihood of Success on the Merits
In his Motion, Plaintiff contends that as far back as May 2003
and as recent as October 2005, Defendant has engaged in acts
which violate his civil rights. However, the civil rights
violations alleged in Plaintiff's amended complaint relate only
to the events that took place on October 8, 2004, at his home on
716 E. Wilcox. As a result, this ...