Gordon v. Sequeira et al

Filing 53

ORDER Denying Motion For Preliminary Injunction and Protective Order re 44 . Signed by JUDGE DERRICK K. WATSON on 11/5/2018. (cib, )COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
Case No. 17-cv-00541-DKW-RLP

SCOTT LEE GORDON,
Plaintiff,

ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION AND
PROTECTIVE ORDER

vs.
PAUL NIESEN, et al.,
Defendants.

On August 30, 2018, pro se Plaintiff Scott Lee Gordon filed a Motion for
Preliminary Injunction and Protective Order. Dkt. No. 44. In the motion, Gordon
requests an order that he remain at Saguaro Correctional Center (SCC) until the date
of his scheduled trial on July 1, 2019. Gordon also requests a restraining order
against an inmate, Shalom Tuimalealiifano, and his known associates and/or fellow
gang members, as well as a restraining order against all defendants in this case. On
September 28, 2018, Defendants Paul Niesen and Keone Morreira filed an
opposition to the motion. Dkt. No. 50. On October 15, 2018, Gordon filed a reply.
Dkt. No. 51. Because Gordon fails to show he is likely to suffer irreparable injury,
the Motion for Preliminary Injunction and Protective Order is DENIED.1

1

In an EO setting the briefing schedule on the instant motion, the Court stated it would determine
whether to hold a hearing after briefing concluded. Dkt. No. 46. Pursuant to Local Rule 7.2(d),
the Court now finds the instant motion is suitable for disposition without a hearing.
1

PROCEDURAL BACKGROUND
On June 25, 2018, Gordon filed a Second Amended Complaint (SAC) against
Niesen, Morreira, Thomas Craig III, and Does 1 and 2 (collectively, “Defendants”).
Dkt. No. 34. Shortly thereafter, the Magistrate Judge found that the SAC stated a
claim against the Defendants, ordered Niesen and Morreira to answer the same, and
ordered Gordon to identify Does 1 and 2 and provide a current address for Craig.
Dkt. No. 35. Niesen and Morreira filed an answer to the SAC on July 12, 2018.
Dkt. No. 38.
On August 30, 2018, Gordon filed the instant motion. Dkt. No. 44. Soon
after filing the motion, Gordon filed a letter, stating that he “wanted to make sure it’s
clear what I was trying to say” in the motion. Dkt. No. 48. In the letter, Gordon
reiterated that he wanted to “remain” at SCC until July 1, 2019. Niesen and
Morreira then filed a response to the motion, Dkt. No. 50, and Gordon filed a reply,
Dkt. No. 51. As of the date of this Order, Does 1 and 2 have not been identified,
and Craig has not been served.2
LEGAL STANDARD
The Court liberally construes Gordon’s pro se motion. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). However, the Court cannot act as counsel for a pro

2

In that regard, on August 7, 2018, Gordon informed the Court that he would seek to identify
Does 1 and 2 through discovery. Dkt. No. 40. As for Craig, while Gordon has provided two
potential addresses for him, see id., the record does not reflect that Craig has been served.
2

se litigant or supply the essential elements of a claim. Pliler v. Ford, 542 U.S. 225,
231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.
1982).
“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. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).
DISCUSSION
In the motion, Gordon requests three forms of injunctive relief: (1) an order
that he remain at SCC until July 1, 2019; (2) a restraining order against
Tuimalealiifano; and (3) a restraining order against the Defendants. The Court
addresses each request, focusing upon whether Gordon has shown a likelihood of
irreparable injury.
Remaining at SCC
In the motion, Gordon states that he should remain at SCC “for reasons of
[his] safety and security.” However, other than stating that the events in this case
occurred at a different prison, Halawa Correctional Facility (HCF), and he is not in
fear at SCC, Gordon provides no explanation for why it is likely he will suffer
irreparable injury if he does not remain at SCC or why it is likely that he will be
3

removed from SCC.
In his letter, Gordon goes a little further, stating that he does not want to return
to HCF because he does not feel safe and is “in fear of retaliation from Halawa
staff.” However, even if the Court were to accept that Gordon has a subjective fear
of retaliation, there is no evidence to suggest that any staff at HCF would retaliate
against Gordon if he was returned there. Similarly, although, in light of the
allegations in the SAC, the Court can certainly accept that Gordon would feel unsafe
if he was returned to HCF, that does not mean that he will be returned to HCF before
July 1, 2019 or, even if he was returned, that irreparable injury would be likely.
In reply, Gordon adds further detail on past events at HCF in which he alleges
he suffered injuries and his safety was “breached.” Whether the alleged events
demonstrate Gordon will suffer irreparable injury if he is returned to HCF is
doubtful.3 Nevertheless, the Court need not resolve that issue because the events do
not demonstrate that Gordon is under any threat or likelihood of being removed from
SCC prior to July 1, 2019. Because there is no evidence that Gordon will be
removed from SCC, he cannot show a likelihood of irreparable injury if an order is
not issued requiring he remain there.4
Restraining Order against Tuimalealiifano and Other Inmates

3

This is especially so given that it appears that neither Tuimalealiifano nor another inmate Gordon
identifies, John Talo, are currently housed at HCF.
4
In other words, any such order would be far too speculative at this juncture.
4

In the motion, Gordon requests a restraining order against Tuimalealiifano
and his known associates and/or fellow gang members. Although the motion does
not explain why Gordon wishes such an order, in light of the record as a whole, it is
clear why he does: according to Gordon, Tuimalealiifano and his associates, which
appear to include another inmate Gordon identifies, John Talo, “brutally assaulted”
him.
The problem, at least in the context of the likelihood of irreparable injury, is
Gordon appears to state in his reply that both Tuimalealiifano and Talo are currently
housed at SCC. Tuimalealiifano certainly appears to be housed at SCC, given that
Gordon alleges in the SAC that that is the case. See SAC ¶ 25. As for Talo, there
is no such definitive allegation from Gordon, but an inmate request form he attaches
to his reply suggests that Talo and Gordon arrived at SCC on the same plane. See
8/2/17 Inmate Request Form, Dkt. No. 51-4. In any event, to the extent Talo is not
currently at SCC, given that Gordon is there, Gordon cannot show it is likely he will
suffer irreparable injury. To the extent Tuimalealiifano and Talo are currently at
SCC, although Gordon states that he has “come close to both,” he cannot show
irreparable injury is likely in light of his repeated assertions that he is “safe here at
Saguaro Correctional Center” and wants to remain there. The same is, thus, true of
any other associates or fellow gang members of Tuimalealiifano and Talo.

5

Finally, in this regard, Gordon acknowledges that he has “separatee” forms in
place with respect to Tuimalealiifano and Talo.5 In light of Gordon’s assertions that
he is safe at SCC, those separatee forms are evidently working. It is through the
prison-issued separatee forms, not a court-issued restraining order against inmates
who are not parties to this litigation, that Gordon should seek to maintain his safety.
Restraining Orders against Defendants
In the motion, Gordon requests a restraining order against all defendants “due
to fear of being retaliated against.” Gordon also states in the motion, however, that
he is “at SCC in Arizona away from all Defendants, causing no harm to any of the
defendants.” It is, thus, not easy to discern, even liberally construing the motion,
how it is likely that any Defendant will be able to retaliate against Gordon
(assuming, of course, any Defendant would be predisposed to do so). In reply,
Gordon provides little clarity in this regard, asserting only that a “stigma remains”
due to this litigation.
Adding to the uncertainty is that, at no point, does Gordon explain what it is
he wants the Court to restrain the Defendants from doing. Conceivably, given
Gordon’s principal request, he may want Defendants to be restrained from bringing
him back to HCF. But, as Niesen and Morreira state in declarations opposing the

5

As the name implies, “separatee” forms are meant to keep one inmate separate from another.
6

motion, they have no authority to make that happen. See 9/27/18 Decl. of Keone
Morreira at ¶ 5, Dkt. No. 50-1; 9/27/18 Decl. of Paul Niesen at ¶ 5, Dkt. No. 50-2.6
In light of all the foregoing, even liberally construing the record, given that
Gordon is presently housed at SCC, which, he says, is “away from all Defendants,”
the Court cannot find that Gordon has shown any likelihood of irreparable injury
should the Court not issue an order restraining Defendants from doing some
unidentified act(s).7 As a result, this request must be denied as well.
In sum, although there may be other deficiencies with the relief Gordon seeks
in the motion, because he has failed to show that it is likely he will be irreparably
injured should an injunction not be issued, the motion must be denied. See Winter,
555 U.S. at 22 (“Our frequently reiterated standard requires plaintiffs seeking
preliminary relief to demonstrate that irreparable injury is likely in the absence of an
injunction.”) (emphasis omitted).
CONCLUSION
Based upon the foregoing, Gordon’s Motion for Preliminary Injunction and
Protective Order, Dkt. No. 44, is DENIED.

6

The same is undoubtedly true of Craig, given that he is no longer an employee at the Department
of Public Safety. See Dkt. No. 42.
7
The Court notes that, in his reply, Gordon states that: “Action is being taken so the staff of
Department of Public Safety will look and act in a certain way towards the plaintiff ….” Apart
from having nothing to do with a likelihood of irreparable injury, restraining Defendants from
looking or acting in a certain way toward Gordon is unlikely to have any desired effect given that
none of the Defendants work at SCC.
7

IT IS SO ORDERED.
Dated: November 5, 2018 at Honolulu, Hawai‘i.

8