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Zivkovic v. Hood

United States District Court, D. Utah, Central Division

March 13, 2017

DAVID ZIVKOVIC, Plaintiff,
v.
KIMBERLY HOOD AND ROBERT JOHNSON, Defendants.

          MEMORANDUM DECISION AND ORDER

          DAVID NUFFER UNITED STATES DISTRICT JUDGE.

         Before the court is Plaintiff David Zivkovic's Motion for Preliminary Injunction or Restraining Order.[1] Having reviewed Zivkovic's brief and the relevant law, the Motion is DENIED.

         BACKGROUND

         On January 26, 2017, Zivkovic filed the above captioned lawsuit alleging several causes of action in relation to the garnishment of his income tax returns.[2] Zivkovic alleges that Defendant Kimberly Hood, in her capacity as Executive Director of the Utah Department of Administrative Services, and Defendant Robert Johnson, in his capacity as the Manager of the Utah Office of State Debt Collection (collectively “defendants”), have improperly garnished Plaintiff's tax returns to satisfy a state criminal restitution order.[3]

         On January 27, 2017, Zivkovic motioned official service of process pursuant to 28 U.S.C. § 1915(d).[4] Pursuant to 28 U.S.C. § 1915(e)(2)(B), Chief Magistrate Judge Paul M. Warner denied Zivkovic's motion until the court could screen Zivkovic's complaint.[5] Subsequently, over Zivkovic's objections, the court affirmed Chief Magistrate Judge Warner's denial of service.[6]

         On March 8, 2017, Zivkovic filed a Motion for a Preliminary Injunction or Restraining Order.[7] Zivkovic's motion requests that the court enter an ex parte Temporary Restraining Order or Preliminary Injunction enjoining Defendants from “garnishment and/or confiscation of [Plaintiff's] 2016 state income tax refund.”[8]

         DISCUSSION

         At the outset, the court recognizes that Zivkovic is proceeding pro se.[9] Therefore, the court will “construe his pleadings liberally and hold the pleadings to a less stringent standard than formal pleadings drafted by lawyers.”[10] However, Zivkovic's pro se status does not discharge him from complying with the court's rules and procedures, and the court will not assume an advocacy role on Zivkovic's behalf.[11]

         Under Rule 65 of the Federal Rules of Civil Procedure, a temporary restraining order or preliminary injunction may issue if the court finds:

(1) [a] substantial likelihood that the movant will eventually prevail on the merits;
(2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.[12]

         The moving party has the “burden to establish that each of these factors tips in his or her favor.”[13] Importantly, a “preliminary injunction is an extraordinary remedy, ” which should be treated as “the exception rather than the rule.”[14]

         Zivkovic's scant motion makes no attempt to satisfy Rule 65. For example, apart from conclusory allegations, Zivkovic offers no argument that he is likely to succeed on the merits or that his threatened injury outweighs any harm Defendants might suffer should the court issue an injunction.

         Zivkovic's imprecise pleadings aside, the court finds that Zivkovic's motion fails to assert that he is likely to suffer irreparable harm. Zivkovic argues that he will suffer irreparable harm of “loss of income” if the court does not immediately enjoin the Defendants from garnishing his 2016 income tax return.[15] “To constitute irreparable harm, an injury must be certain, great, actual and not theoretical.”[16] “[T]he party seeking injunctive relief must show that the injury complained of is of such imminence that there is a clear and present need for equitable relief to prevent ...


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