United States District Court, D. South Dakota, Southern Division
LANCE G. OWEN, Plaintiff,
DARIN YOUNG, TROY PONTO, JAN WAGNER, ALLCOCK AW at SDSP, Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION, DENYING MOTION FOR PRELIMINARY INJUNCTION, DENYING MOTION TO STRIKE, AND DENYING MOTION TO APPOINT COUNSEL
KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE
Plaintiff, Lance G. Owen, filed this lawsuit pursuant to 42 U.S.C. § 1983, naming Darin Young, Troy Ponto, Jan Wagner, and “Allcock (AW at SDSP)” as defendants. Docket 1. Owen now moves for a preliminary injunction. Docket 21. This matter was referred to Magistrate Judge Veronica L. Duffy to handle pretrial matters under 28 U.S.C. § 636(b)(1) and this court’s standing order of October 16, 2014. Magistrate Judge Duffy recommends his motion for preliminary injunction be denied, Docket 23, and Owen objects. Docket 26. For the reasons stated below, the report and recommendation is adopted, Owen’s motion for preliminary injunction is denied, defendants’ motion to strike is denied, and Owen’s motion to appoint counsel is denied.
Owen filed a complaint on March 19, 2015, alleging defendants denied him equal protection because, although he is a “lifer” at the South Dakota State Penitentiary, he was not given permission to transfer funds from his “frozen” prison account to (1) his other prison sub-accounts; or (2) outside the prison to his relatives. Docket 1. Magistrate Judge Duffy recommends that his complaint be dismissed for failure to state a claim upon which relief may be granted. Docket 8.
On June 11, 2015, Owen filed a “Supplement, ” which the court construed as an amended complaint. Docket 9. In this amended complaint, Owen alleged that defendants violated his constitutional rights by increasing his debt accrued under the Prison Litigation Reform Act. Id. The amended complaint was served, and defendants answered. Docket 16. Owen filed an objection to defendants’ answer, Docket 18, and defendants moved to strike this objection. Docket 19.
On February 10, 2016, Owen filed a motion for preliminary injunction. Docket 21. In this motion, he raises new claims that defendants are retaliating against him and sexually discriminating against him because of his claims concerning his prison bank account. Id.; Docket 26. The motion was referred to Magistrate Judge Duffy. She recommends that it be denied because the issues Owen raises in the motion for preliminary injunction bear no relation to the issues in his amended complaint. Docket 23 at 3.
Owen objects to this recommendation. Docket 26. He does not directly respond to Magistrate Judge Duffy’s findings. He does, however, argue that he should be able to amend his complaint, that defendants are punishing him in order to avoid litigation in the matter, and that he is not attempting to change the factual basis of his complaint but point out that defendants have a “conflict of interest.” Id. at 4.
Review of a magistrate judge’s report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. Under 28 U.S.C. § 636(b)(1), the court reviews de novo any objections that are timely made and specific. See Fed. R. Civ. P. 72(b) (“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to”).
I. Preliminary Injunction
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981).
The report and recommendation explains that “implicit in the above definitions and law-explicit in the first Winter factor-is the idea that a court ruling on a motion for preliminary injunction is giving an early ruling on the merits of the case.” Docket 23 at 3. Because “Owen’s motion for preliminary injunction has nothing to do with the merits of his amended complaint” Magistrate Judge Duffy recommends denial of this motion. Id. The court agrees.
Owen first argues that he should not be required to provide security or collateral to pay defendants’ costs and damages in the event that the injunction is wrongfully issued. Docket 26 at 3-4. This is not the reason Magistrate Judge ...