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COVINGTON v. SMITH

December 16, 2005.

JOHN E. COVINGTON, Plaintiff,
v.
JIM SMITH, Defendant.



The opinion of the court was delivered by: JOE McDADE, Chief Judge

ORDER

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.

I.

  BACKGROUND

  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.

  II.

  LEGAL STANDARD

  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 five-part test.
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.

  III.

  ANALYSIS

  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 ...


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