United States District Court, D. New Jersey
AKINTOYE O. LAOYE, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
Michael A. Shipp United States District Judge.
matter comes before the Court on Plaintiff Akintoye
Laoye's ("Plaintiff) ex parte application for a
temporary restraining order ("TRO"). (ECF No. 18.)
Plaintiff seeks an order from the Court requiring Defendant
the United States of America ("Defendant") to
refrain from: (1) "detaining [Plaintiff] without any
concrete reasons like violation of ICE ATD (Alternative to
Detention)"; or (2) attempting to remove or relocate
Plaintiff during the duration of Plaintiffs pending lawsuit,
which alleges violations of the Federal Tort Claims Act
("FTCA").(TRO Appl. ¶ 2.) The Court has
carefully considered Plaintiffs submission and decides the
matter without oral argument pursuant to Local Civil Rule
Supreme Court [has] held that [a] [TRO] should be treated as
a preliminary injunction." NutraSweet Co. v. Vit-Mar
Enters., Inc., 112 F.3d 689, 693 (3d Cir. 1997). Because
the grant of injunctive relief is "an extraordinary
remedy[, ]" a temporary restraining order "should
be granted only in limited circumstances." Kos
Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.
2004) (citation omitted). This remedy "should be granted
only if '(1) the plaintiff is likely to succeed on the
merits; (2) denial will result in irreparable harm to the
plaintiff; (3) granting the injunction will not result in
irreparable harm to the defendant; and (4) granting the
injunction is in the public interest.'" M(?m5weer
Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d
Cir. 1999) (quoting Maldonado v. Houstoun, 157 F.3d
179, 184 (3d Cir, 1998)).
Third Circuit has further instructed that a party seeking a
temporary restraining order must meet all four factors, as a
movant's "failure to establish any element in its
favor renders [this remedy] inappropriate." Id.
A movant has the burden of establishing a "clear
showing of immediate irreparable injury or presently existing
actual threat." Louis v. Bledsoe, 438
F.App'x 129, 131 (3d Cir. 2011) (citing Cont'l
Grp., Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359 (3d
Cir. 1980)). "Establishing a risk of irreparable harm is
not enough." ECRI v. McGraw-Hill, Inc., 809
F.2d 223, 226 (3d Cir. 1987).
Plaintiff fails to establish that the factors weigh in favor
of granting a temporary restraining order. Specifically,
Plaintiff fails to show immediate irreparable harm. Plaintiff
claims that "any attempt at this time by [D]efendant
to retaliate or attempt to remove [P]laintiff would be a
gross manifest injustice" because Plaintiff (1) may be
able to successfully argue his FTCA claims and (2)
"[D]efendant[']s agents have denied him medical
care[, ] an issue that has caused [P]laintiff continuous
psychological and physical pain." (TRO Appl. ¶1.5.)
Plaintiff asserts that if his TRO application is denied, he
will be unable to undergo dental surgery because
"Nigeria .. . lack[s] [the] proper medical facilities
for the kind of surgery he has to have done." (TRO Appl.
¶ 5.) At bottom, Plaintiff requests that the Court
prohibit Immigration and Customs Enforcement
("ICE") from lawfully removing him from this
country. Plaintiff, however, proffers no evidence showing
that Defendant is seeking to remove or relocate Plaintiff, or
that Defendant is interfering with Plaintiff receiving dental
surgery. (TRO Appl. ¶ 5.) "[I]njunctions will not
be issued merely to allay the fears and apprehensions or to
soothe the anxieties of the parties. Nor will an injunction
be issued 'to restrain one from doing what he is not
attempting and does not intend to do.'" Campbell
Soup Co, v. ConAgra, Inc., 911 F.2d 86, 92 (3d Cir.
1992) (quoting Cont'l Grp., Inc., 614 F.2d at
359). The Court finds that Plaintiff fails to establish a
"clear showing of immediate irreparable injury, "
and only alleges a risk of harm. Louis. 438
F.App'x at 131 see ECRI, 809 F.2d at 226. Based
upon Plaintiffs submission, the Court concludes that
Plaintiff has failed to demonstrate that he will suffer
immediate irreparable injury absent a temporary restraining
for the reasons set forth above, and other good cause shown,
IT IS on this 14th day of July 2017, ORDERED that Plaintiffs
ex parte TRO application (ECF No. 18) is DENIED.
 Plaintiff alleges Defendant acted
negligently "in regard[ ] to [a] medical procedure by
ignor[ing] [a] medical request letter by [his] doctor."
(TRO Appl. ¶ 1.)
The Court finds that the alleged
harm is based on underlying factual allegations that give
rise to Plaintiffs FTCA claims. (See ECF Nos. 1, 13,
14.) In other words, Plaintiff alleges past harm, which is
insufficient to establish irreparable harm. See Talben v.
Corizon Med., 605 F.App'x 86, 87 (3d Cir. 2015)
("[I]njunctive relief is appropriate only when there is
a . . . 'presently existing actual threat.'"