Opinion
4:22-cv-00613 DPM-PSH
09-28-2022
RODERICK WHITE ADC #092057 PLAINTIFF v. LERIZZA NUNAG, et al. DEFENDANTS
ORDER
Pending before the Court is a motion for temporary restraining order filed by Plaintiff Roderick White (Doc. No. 5) and a response filed by the defendants Lerizza Nunag and Rose Newby (the “Defendants”) (Doc. No. 12). Because the Defendants were notified of White's motion and have responded, White's motion for a temporary restraining order is construed as a motion for preliminary injunction. See Fed. R. Civ. P. 65(b) (providing for ex parte temporary restraining orders of limited duration).
Based on a review of the pleadings, the Court believes that an evidentiary hearing on the motion would be beneficial. However, before setting a hearing, the Court needs to know whether the Defendants intend to pursue a defense that White failed to exhaust his administrative remedies before filing this lawsuit. In order to succeed on his motion, White must prove that he is likely to succeed on the merits of this case; if he has not exhausted his available administrative remedies, he cannot do so. See e.g., Gakuba v. Jeffreys, No. 19-CV-01081-SMY, 2020 WL 1248295, at *2 (S.D. Ill. Mar. 16, 2020) (finding that plaintiff was not entitled to a preliminary injunction because he cannot establish a likelihood of success on his claim if he has not exhausted his available administrative remedies); Endicott v. Allen, No. 2:17-CV-29-DDN, 2019 WL 480014, at *5 (E.D. Mo. Feb. 7, 2019) (finding that plaintiff had not demonstrated a likelihood of success on the merits where it appeared defendants were likely to at least partially succeed with a defense that plaintiff had failed to exhaust his claims).
Defendants must notify the Court within fourteen days from the date of this Order whether or not they intend to pursue a defense that White failed to exhaust his administrative remedies. If they intend to do so, the defense must be raised by motion for summary judgment no later than October 31, 2022.
IT IS ORDERED.