United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
Jeffery S. Frensley, United States Magistrate Judge.
before the Court is a document filed by the pro se Plaintiff
titled “Plaintiff's Supplemental Pleading, Request
for Restraining Order Against Marlene Kelley & Request to
Subpoena Defendant's February 5, 2019, Map Room Computer
Log Records.” Docket No. 12. Defendant has filed a
response. Docket No. 16. Plaintiff has filed a reply. Docket
No. 18. For the reasons stated herein, the undersigned
recommends that Plaintiff's supplement pleading be
an employment discrimination action filed by the pro se
Plaintiff filed against the Defendants alleging violation of
Title VII of the Civil Rights Act of 1964, the American with
Disabilities Act, and Prohibited Personnel Practices 5 U.S.C.
§ 2302. Docket No. 1. Plaintiff also alleged state law
claims of defamation and intentional infliction of emotional
distress against Defendant Kelley.
February 19, 2019, Plaintiff filed the instant supplemental
pleading in which she seeks to amend her Complaint to add
allegations “as Count VII of the Complaint, ”
request a restraining order against Marlene Kelley and seeks
a subpoena for “map room computer log records.”
Docket No. 12.
Defendant filed a response arguing that any supplemental
pleadings to amend the complaint in this matter should be
consistent with the requirements of Rule 15 of the Federal
Rules of Civil Procedure and Defendants oppose her request to
amend any allegations that have not been administratively
exhausted. Docket No. 16. Defendants oppose Plaintiff's
request for restraining order against Marlene Kelley on the
grounds that Plaintiff has not established any criteria that
would justify a restraining order under Fed.R.Civ.P. Rule 65
and that she cannot show immediate and irreparable injury
requiring the issuance of a restraining order. Id.
Finally, Defendants submit a request for subpoena for records
is premature in that the Plaintiff could seek the requested
information within the scope of allowable discovery.
filed a reply in which she withdraws her request to amend the
Complaint. Docket No. 18. With respect to her request for a
restraining order Plaintiff contends that by providing
Defendants notice of the request for restraining order and
Defendants filing a response to the request for a restraining
order they have been “allowed to defend against her
allegations.” Docket No. 18. She further argues that
she has made a successful showing of a need for a restraining
order based upon exhibits attached to her Complaint
documenting what she asserts are “years of emotional
abuse from the Defendant” and retaliation. Id.
She argues that Defendants' assertion that she has not
shown immediate and irreparable injury is conclusory, that
her request for a restraining order is not unreasonable and
that she has been the consistent target of false allegations,
threats and other abuse which she can no longer endure.
Id. With respect to the subpoena, Plaintiff
indicates that she is not opposed to obtaining the requested
information through discovery and “will respectfully
withdraw her request for subpoena for the map room records
and list of names.”. Id.
upon the reply filed by Plaintiff in this matter the only
remaining issue for the Court to resolve is her request for a
restraining order. The moving party has the burden of proving
that the circumstances “clearly demand” a TRO or
a Preliminary Injunction. Overstreet v. Lexington-Fayette
Urban Cnty. Gov't., 305 F.3d 566, 573
(6th Cir. 2002). The court must balance four
factors in deciding whether to issue a preliminary injunction
or TRO “(1) whether the movant has a strong likelihood
of success on the merits; (2) whether the movant would suffer
irreparable injury without the injunction; (3) whether
issuance of the injunction would cause substantial harm to
others; and (4) whether the public interest would be served
by issuance of the injunction.” City of Pontiac
Retied Employees Ass'n. v. Schimmel, 751 F.3d 427,
430 (6th Cir. 2014)(en banc)(internal
quotation marks omitted).
four factors are “factors to be balanced, not
prerequisites that must be met.” Michael v.
Futhey, 2009 WL 4981688, at *17 (6th Cir.,
December 17, 2009)(quoting Six Clinics Holding Corp., II
v. Cafcomp Systems, 119 F.3d 393, 400 (6th
Cir. 1997)). Nonetheless, it remains that the hallmark of
injunctive relief is the likelihood of irreparable harm.
Patio Enclosures, Inc. v. Herbst, 39 Fed.Appx. 964,
967 (6th Cir. 2002)(“[t]he demonstration of
some irreparable injury is a sine qua non for
issuance of an injunction.”); see also Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7,
22-23, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)(rejecting the
notion that a mere “possibility” of irreparable
injury was sufficient for a preliminary injunction and
holding that “plaintiffs seeking preliminary relief
[are required] to demonstrate that irreparable injury is
likely in the absence of an
injunction”)(emphasis in original). “A finding
that there is simply no likelihood of success on the merits
is usually fatal.” Gonzalez v. National Board of
Medical Examiners, 225 F.3d 620, 625 (6th
plaintiff bears the burden of demonstrating her entitlement
to a preliminary injunction, and her burden is a heavy one.
Injunctive relief is “an extraordinary remedy which
should be granted only if the movant carries his or her
burden of proving that the circumstances clearly demand
it.” Overstreet v. Lexington-Fayette Urban Cnty.
Gov't., 305 F.3d 566, 573 (6th Cir.
Dowell seeks by her motion is not maintenance of the status
quo pending trial. Instead, she asks the Court for an Order
“to enjoin Marlene Kelley from having direct,
unsupervised verbal or written contact with the Plaintiff, in
order to mitigate the irreparable emotional injury cause by
the Defendant.” Docket No. 12, p. 4. Dowell's
motion thus falls into the category of “particularly
disfavored” requests for injunctive relief and is
subject to the Court's high scrutiny. Schrier v.
University of Colorado, 427 F.3d at 1253, 1259
(10th Cir. 2005).
has failed to provide any analysis related to the four
factors the Court must consider. While Plaintiff has pointed
to numerous instances she alleged constitute discriminatory
and harassing treatment, Plaintiff's pleadings alone are
not sufficient to demonstrate a likelihood of success on the
merits at this juncture. The Plaintiff has likewise failed to
plead with any specificity, much less by clear and convincing
evidence, actual irreparable harm or the existence of actual
threat of such injury. Further, Plaintiff's harm from the
denial of an injunction is irreparable only if it is not
fully compensable by monetary damages. Overstreet v.
Lexington-Fayette Urban Cnty. Gov't., 305 F.3d 566,
578 (6th Cir. 2002). While the information
presented by Plaintiff offers general descriptions of the
conditions she alleges, she does not offer evidence that
suggests she will suffer specific, immediate and irreparable
harm if she does not obtain injunctive relief.
neither party argues the element of harm to others and the
public, Plaintiff seeks a form of relief that would prevent
her supervisor from having any contact with her. No. doubt,
the public has an interest in the efficient operation of a
government workplace. Preventing a supervisor from speaking
with an employee would not promote the public interest and
Dowell has not made enough showing to overcome that interest
at this stage of the litigation.
four factors the Court must consider in determining whether
to order injunctive relief all weigh against granting
Dowell's Motion. As a result, the undersigned recommends