United States District Court, D. New Jersey
MEMORANDUM AND ORDER
MCNULTY UNITED STATES DISTRICT JUDGE
pro se, Gregory Perry, a state prisoner presently residing at
Delaney Hall in Newark, New Jersey, seeks to commence a civil
rights action under 42 U.S.C. § 1983. Mr. Perry alleges
that staff members of the reentry program in which he is
participating retaliated against him for filing a grievance
by unlawfully searching his living space, which resulted in
the confiscation of $400 and a punitive program assignment
for breaking rules regarding possession of currency. (ECF No.
1 ¶¶ 8-13.) Mr. Perry's complaint includes
claims against the chairperson of the New Jersey State Parole
Board, as well as various staff members of the reentry
program, for retaliation, unlawful search and seizure, and
due-process violations. (Id., ¶¶ 19-24.)
with his complaint, Mr. Perry filed a motion for a temporary
restraining order. (ECF No. 2.) The sole thrust of this
motion is Mr. Perry's statement that "[t]he
individual and collective defendants have exhibited a
heightened disdain and indifference to plaintiffs civil and
constitutional rightsf;] it is necessary for this Court to
enter a temporary restraining order enjoining defendants from
retaliating against him." (Id. ¶ 3.) Mr.
Perry also asks for the appointment of pro bono counsel to
represent him in this action. (Id. ¶ 5.)
justify the extraordinary relief of a preliminary injunction,
a plaintiff must demonstrate (1) a likelihood of success on
the merits, (2) that denial would cause irreparable harm to
the plaintiff, (3) that granting the injunction would not
cause irreparable harm to the defendant, and (4) that the
injunction would be in the public interest. See Maldonado
v. Houston, 157 F.3d 179, 184 (3d Cir. 1988). The same
standard applies to temporary restraining orders. See
Ballas v. Tedesco, 41 F.Supp.2d 531, 537 (D.N.J. 1999).
A plaintiff must show that all four factors weigh in favor of
an injunction or temporary restraining order. See
Opticians Ass'n of Am. v. Indep. Opticians of Am.,
920 F.2d 187, 192 (3d Cir, 1990), Such preliminary relief is
an "extraordinary remedy, which should be granted only
in limited circumstances." Ferring Pharm., Inc. v.
Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014)
(internal quotation marks omitted).
Mr. Perry has not met his burden to demonstrate that a
temporary restraining order is warranted. In particular, he
has not shown that he will suffer irreparable harm in the
absence of a temporary restraining order. His sole assertion
in this regard is that the defendants have disregarded his
civil rights and that Mr. Perry wants an injunction barring
them from doing so in the future. (See ECF No. 2
¶ 3.) It is not clear what type of harm Mr. Perry
anticipates may occur without an injunction, must less that
it would likely be irreparable. Accordingly, the temporary
restraining order will be denied.
a civil complaint must generally include either a $400.00 fee
(a $350.00 filing fee plus a $50.00 administrative fee) or an
application to proceed in forma pauperis. 28 U.S.C.
§§ 1914(a), 1915(a). Mr. Perry's complaint
includes neither. Accordingly, the Clerk of the Court will be
ordered to administratively close the case. Mr. Perry may
reopen this action by either paying the filing fee or
submitting a complete in forma pauperis application.
Perry's request for appointment of pro bono counsel will
also be denied at this time. A finding of potential merit of
the applicant's claims is a threshold determination that
for considering appointment of pro bono counsel. See
Prudential Ins. Co. of Am. v. Dobson, No. 08-3951, 2009
WL 115966, at *2 (D.N.J. Jan. 16, 2009);
Protameen Chems., Inc. v. Chinchilla, No. 05-3383,
2007 WL 174163, at *1 (D.N.J. Jan. 22, 2007). As the case is
being administratively terminated, there are presently no
active, potentially meritorious claims.
IT IS this 2d day of July 2018
that Plaintiffs motion for a temporary restraining order is
DENIED; and it is further
that Plaintiffs motion for appointment of pro bono counsel is
DENIED WITHOUT PREJUDICE; and it is further
that the Clerk of the Court shall administratively terminate
this case; and it is further
that, if petitioner wishes to reopen this case, he shall so
notify the Court, in writing addressed to the Clerk of the
Court, Martin Luther King Jr. Federal Building and U.S.
Courthouse, 50 Walnut Street, Newark, New Jersey, 07101;
petitioner's writing shall include either the $400.00
filing fee or a complete application to proceed in forma
pauperis; and it is further
that, upon receipt of a writing from petitioner stating that
he wishes to reopen this case and either the filing fee or a
complete application to proceed in forma pauperis,
the Clerk of the Court will be directed to reopen this case;
and it is finally
that the Clerk shall serve upon petitioner by regular U.S.
mail (1) a copy of this Memorandum and Order and (2) a blank
form Application to Proceed in Forma Pauperis in a ...