Adkins v. Robinson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION ASHLAND CARL ADKINS, ) ) Plaintiff, ) Civil No. 0:22-cv-00008-GFVT ) v. ) ) JUSTIN ROBINSON, et al., ) ORDER ) Defendants. ) *** *** *** *** This matter is before the Court on Judge Atkins’s Report and Recommendation, which recommends that the Court deny Mr. Adkins’s Motion for Temporary Restraining Order and Motion to Stay. [R. 56; R. 48; R. 55.] Mr. Adkins, proceeding pro se, filed this action alleging various civil rights violations during his incarceration at the Eastern Kentucky Correctional Complex. [R. 1.] Over a year into the litigation, he filed a motion seeking a temporary restraining order and preliminary injunction. [R. 48.] He seeks an order requiring the institution at which he is currently incarcerated to provide specific medical care, which he alleges is being withheld in retaliation for filing this action. See id. at 1-3. Mr. Adkins is now in Kentucky State Police custody and is no longer housed at the Eastern Kentucky Correctional Complex. See id. at 2. The institution at which he is currently incarcerated is not a defendant to this action. [See id.; R. 1.]

After the Defendants responded, Mr. Adkins filed a motion asking the Court to stay its ruling on his motion for temporary restraining order and preliminary injunction. [R. 55.] He states that the Defendants “made some valid claims,” including their argument that Mr. Adkins did not establish that the alleged injury is sufficiently related to this action. Id. at 1. He asks that the Court withhold ruling on the motion while he amends his complaint to include the proper defendants. Id. at 1-2.

Judge Atkins issued a Report and Recommendation addressing both motions. [R. 56.]

He found that Mr. Adkins “makes clear that he agrees with the Defendants that the injunctive relief he seeks can’t be provided by the Defendants.” Id. at 1. Mr. Adkins is no longer incarcerated by the Defendants, so they cannot provide him the care he seeks. [See R. 55 at 1.]

He “concedes” that he must amend his complaint to get relief from the appropriate party. [R. 56 at 1.] Accordingly, Judge Atkins recommends that the Court deny the motion for temporary restraining order and deny as moot the motion to stay. Id. at 2.

Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service of the Report and Recommendation to file any objections or else he waives his right to appeal. In order to receive de novo review by this Court, any objection to the recommended disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection must “explain and cite specific portions of the report which [the petitioner] deem[s] problematic.” Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (internal quotations and citations omitted).

Mr. Adkins timely filed an objection to the Report and Recommendation. [R. 57.] He argues that the Court should have stayed its decision, pursuant to his motion to stay, because he was in the process of amending his complaint to include the appropriate defendants. Id. at 2.

Mr. Adkins’s motion reads as if he would not be permitted to re-file his motion seeking injunctive relief after amending his complaint. This is not the case. If he is allowed to amend his complaint, he would be permitted to re-file his motion.

Further, the Court has not yet permitted Mr. Adkins to amend his complaint. If the Court does not permit Mr. Adkins to amend his complaint, then it will not be able to grant his requested injunctive relief because the parties able to provide that relief are not Defendants in this action. [See R. 1; R. 48.] Mr. Adkins recognizes as such. [See R. 55.] The proper procedure is to deny his motion for injunctive relief and permit him to re-file it if appropriate and he is permitted to amend his complaint. This approach moots his motion to stay consideration of the motion for injunctive relief.

Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED as follows: 1. Mr. Adkins’s objection [R. 57] is OVERRULED; 2. Judge Atkins’s Report and Recommendation [R. 56] is ADOPTED as and for the opinion of the Court; 3. Mr. Adkins’s Motion for Temporary Restraining Order [R. 48] is DENIED; and, 4. Mr. Adkins’s Motion to Stay [R. 55] is DENIED AS MOOT.

This the 23rd day of August, 2023.

ae Nal 44 icy Gregory F*Van Tatenhove United States District Judge