Johnson v. Western State Colorado University et al

Filing 37

ORDER granting Plaintiff's Motion for Temporary Restraining Order 23 . Plaintiff's Motion for Temporary Restraining Order is effective until November 4, 2013. Defendants have up to and including Wednesday, October 23, 2013 to supplement their response to the Motion. The briefing schedule in (ECF No. 10) is MODIFIED to reflect that Plaintiff has up to and including October 30, 2013 to file his Reply in support of his Motion. This Order shall expire no later than 14 days from today, October 21, 2013, except for good cause shown by Plaintiff. Persons bound by this Order include any parties who receive actual notice of it by personal service or otherwise, pursuant to Rule 65(d)(2). SO ORDERED by Judge William J. Martinez on 10/21/2013. Text Only Entry (wjmsec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2747-WJM-KMT
KEIFER JOHNSON,
Plaintiff,
v.
WESTERN STATE COLORADO UNIVERSITY,
BRAD BACA, in his official capacity as president of Western State Colorado University,
GARY PIERSON, in his official capacity as Vice President Student Affairs & Dean of
Students, and
SARA PHILLIPS, individually, and in her official capacity as Title IX Coordinator,
Defendants.

ORDER GRANTING PLAINTIFF'S EMERGENCY
MOTION FOR TEMPORARY RESTRAINING ORDER

THE COURT, having considered Plaintiff's Emergency Motion For Temporary
Restraining Order, having considered the pleadings previously submitted, and having
reviewed the Orders previously entered in this matter, hereby grants Plaintiff's
Emergency Motion for Temporary Restraining Order.
For the period of time during which this Order is in effect, Defendants are
restrained from conducting any disciplinary hearing or taking any further administrative
actions against Plaintiff regarding the issues involved in this lawsuit. There are two
bases that support Plaintiff’s relief.
1.

Court Scheduling Order

On October 8, 2013, Plaintiff filed a Motion for Preliminary Injunction and
Temporary Restraining Order (ECF No. 2). The Court issued the following Order:

This matter is before the Court on Plaintiff's [2] Motion for Preliminary
Injunction and Request for Forthwith Hearing. As the Plaintiff has not
alleged any immediate harm or requested that the Court act before
Defendants have an opportunity to be heard, the Court considers the
Motion to be a request pursuant to Fed. R. Civ. P. 65(a). The Court
ORDERS that Defendant file an answer and opposition to the Motion for
Preliminary Injunction no later than 7 days after service of the same.
Plaintiff may file a reply to the Motion with 7 days of service of the
opposition. After the briefing is complete, the Court will review the papers
and determine whether a hearing on the Motion is necessary.
See, ECF No. 10.
On October 17, 2013, the Plaintiff filed a further Emergency Motion for
Temporary Restraining Order. (ECF No. 10.) That Motion informed the Court that
Defendants were intending to proceed with a disciplinary hearing of Plaintiff before a
university tribunal on October 22, 2013. (Id.)
The Court FINDS that Defendants’ action in proceeding to schedule said hearing
is contrary to the spirit if not the letter of this Court’s Order ECF No. 10. The Court
issued that Order on the basis that the status quo ante would be preserved until after
the briefing on the preliminary injunction had become ripe. The Court is puzzled as to
how Defendants could have read this Order any other way. As the Parties were well
aware, the status quo ante at the time at the time ECF No. 10 was issued was that no
diciplinary hearing had been scheduled for Plaintiff. Indeed, it was stated in that Order
that there was no “immediate harm” to Plaintiff at that time to warrant the need for a
temporary restraining order. (Id.)
As a consequence, the Court grants Plaintiff’s relief directing that Defendants be
restrained from conducting any disciplinary hearing or taking any further administrative
actions against Plaintiff regarding the issues involved in this lawsuit during the pendency
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of the effective term of this Order. Such relief is sourced from those powers necessary
for the courts to adjudicate cases in an orderly and efficacious manner. Eash v. Riggins
Trucking, Inc., 757 F.2d 562-64 (3d Cir. 1985).
2.

Temporary Restraining Order (“TRO”) – F.R.Civ.P. 65(b)(1)

The Court also finds the requirements of F.R.Civ.P. 65(b)(1) have been met.
The Court makes specific reference to the need to maintain the status quo ante
and prevent irreparable harm. Specifically, a party, such as the Plaintiff here, 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 irreparable harm. Heideman
v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003); Freshpack Produce, Inc.
v. VM Wellington, LLC, 2013 WL 50433 (D. Colo., Jan. 3, 2013).
The Court finds that Plaintiff will likely suffer irreparable harm if the relief is not
granted and the status quo ante maintained. In his complaint, Plaintiff challenges the
constitutional adequacy of Defendants’ disciplinary proceedings. To allow Defendants
to move forward with these disciplinary proceedings at this time, without the Court
having the opportunity to consider the merits of Plaintiff’s contentions, may subject
Plaintiff to irreparable harm at this time. The Court finds that such possible harm can at
this juncture of the litigation be avoided by ordering the maintenance of the status quo
ante until the merits (if any there be) of Plaintiff’s arguments can be evaluated and ruled
upon. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); United States v.
Adler’s Creamery, 107 F.2d 987, 990 (2d Cir. 1939) (holding that its function is to
“preserve the status quo ante . . . upon a showing that there would otherwise be danger
of irreparable injury.”); Freshpack, 2013 WL 50433; SIFMA v. Garfield, 469 F. Supp. 2d
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25 (D. Conn. 2007).
Given the briefing schedule that has been put in place below, along with the need
for Defendants to outline the scope and contours of the disciplinary proceedings in
supplemental briefing, the Court finds that this approach guards against any possible
harm to Plaintiff’s rights.
Accordingly, Plaintiff is at high risk of suffering immediate and irreparable injury
without intervention of the Court, warranting the need for the Court to grant the relief
sought by Plaintiff in his Motion. (ECF No. 23 at 7.)
Conclusion
For the reasons set forth below, Plaintiff’s Motion at ECF No. 23 is GRANTED.
The Court therefore ORDERS as follows:
1.

Plaintiff's Motion for Temporary Restraining Order (ECF NO. 23) is GRANTED,
effective until November 4, 2013.

2.

Defendants have up to and including Wednesday, October 23, 2013 to
supplement their response to the motion for preliminary injunction with
declarations by three individuals, Chris Luekenga, Gary Pierson and Sara
Phillips. The supplement shall be limited to addressing in detail the scope and
contours of Defendants’ proposed disciplinary hearing.

3.

The briefing schedule in ECF No. 10 is MODIFIED. Plaintiff has up to and
including October 30, 2013 to file his reply in support of his motion for a
preliminary injunction, specifically addressing therein the need for an evidentiary
hearing on the his motion for preliminary injunction.

4.

This Order shall expire no later than 14 days from today, except for good cause
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shown by Plaintiff, given which this Order may ne extended for an additional like
period of time. Further orders on Plaintiff’s Motion for Preliminary Injunction may
supersede this or any other Order entered pursuant to the Motion for Temporary
Restraining Order. Persons bound by this Order include any parties who receive
actual notice of it by personal service or otherwise, pursuant to Rule 65(d)(2).
Dated this 21st day of October, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

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