Kirkland v. Drake et al

Filing 33

MEMORANDUM AND ORDER denying 30 Motion for Temporary Restraining Order. Signed by District Judge Julie A. Robinson on 11/16/2011. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WAYLAND DEE KIRKLAND,
Plaintiff,
vs.
DIANE ZADRA DRAKE, et al.,
Defendants.

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Case No. 11-2347-JAR

MEMORANDUM AND ORDER
Plaintiff Wayland Dee Kirkland filed a Motion for Temporary Restraining Order
(Doc. 30); defendants have responded. Because the motion seeks injunctive relief pending the
final resolution of his case, and Plaintiff has not complied with Fed. R. Civ. P. 56(b), the Court
treats the motion as a request for a preliminary injunction. The Court denies the motion because
Plaintiff has failed to specify what relief he is seeking, and has failed to show irreparable harm as
well as the other requisites for obtaining injunctive relief.
Plaintiff filed his motion in this case and in a related case against separate defendants.1
The Defendants in this case are associated with two mental health agencies. The motion seeks
an order “forbidding all defendants and their agents of further adverse or negative actions against
Plaintiff.” The only allegation against the Defendants in this case is set forth in ¶ 2.A. and
alleges that:
Plaintiffs mental health care provider ceased all care and contact with Plaintiff
immediately following filing said case. No reason or explanation despite
continued complaints. This jeopardizes my mental health treatment, housing

1

Case No. 11-2504-EFM-DJW, filed September 6, 2011.

grant.2
The remainder of Plaintiff’s motion addresses actions allegedly done by the defendants in the
other case. In fact, Plaintiff’s prayer for relief asks the Court “to issue a restraining order against
Franklin County Attorney, Franklin County Sheriff, and Franklin County Courts ordering them
to leave Plaintiff alone with regard to defendant G. Jones and Case No. 11-cv-2347 and 11-cv2504.”3 None of the named defendants are parties in the other case. It is unclear exactly what
relief Plaintiff is requesting with regard to the Defendants in this case.
A preliminary injunction is an extraordinary remedy that is granted as the exception
rather than the rule.4 The primary purpose of a preliminary injunction is to preserve the status
quo pending a trial on the merits.5 To obtain a preliminary injunction, the moving party must
show a clear and unequivocal right to relief.6 Plaintiff must show: “(1) a likelihood of success
on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of equities tips in the movant’s favor; and (4) that the
injunction is in the public’s interest.”7 In cases where the movant has prevailed on the other
factors, the Tenth Circuit generally uses a liberal standard for “probability of success on the

2

Doc. 30 at ¶2.A.

3

Id. at 2.

4

Hill’s Pet Nutrition, Inc. v. Nutro Prods., Inc., 258 F. Supp. 2d 1197, 1204 (D. Kan. 2003) (citation

omitted).
5

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004) (en
banc), aff’d, 126 S. Ct. 1211 (2006).
6

SCFC ILC, Inc., v. Visa USA, 936 F.2d 1096, 1098 (10th Cir. 1991).

7

Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1157 (10th Cir. 2011) (citing Chamber of Commerce v.
Edmondson, 594 F.3d 742, 764 (10th Cir. 2010) (internal quotation marks omitted); Fed.R.Civ.P. 65).

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merits,” so the moving party need only raise “questions going to the merits so serious,
substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more
deliberate investigation.”8
There are three types of injunctions that are disfavored in the Tenth Circuit, and thus, are
subjected to a heightened burden. Those injunctions are: (1) preliminary injunctions that alter
the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford
the movant all the relief that it could recover at the conclusion of a full trial on the merits.9 If an
injunction falls into one of these categories, it “must be more closely scrutinized to assure that
the exigencies of the case support the granting of a remedy that is extraordinary even in the
normal course. Furthermore . . . movants seeking such an injunction are not entitled to rely on
this Circuit’s modified-likelihood-of-success-on-the-merits standard.”10
In this case, it is unclear what relief Plaintiff is seeking with regard to these Defendants.
He asserts that they have ceased to provide him care and have ceased contact with him, which he
alleges jeopardizes his mental health treatment and housing grant. If Plaintiff is seeking an order
requiring Defendants to continue to treat him, Plaintiff’s request would be for mandatory relief
which would disturb the status quo, and thus, he bears a heightened burden.
Furthermore, the uncertainty as to what relief Plaintiff is seeking with regard to these
Defendants would prevent the Court from entering an order in compliance with Fed. R. Civ.
P. 65(d)(1). Under Rule 65(d)(1):

8

Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980) (internal quotations omitted).

9

O Centro, 389 F.3d at 975.

10

Id. at 975–76.

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Every order granting an injunction and every restraining order must:
(A) state the reasons why it issued;
(B) state its terms specifically; and
(C) describe in reasonable detail—and not by referring to the complaint or other
document—the act or acts restrained or required.11
Plaintiff has not shown that he will be irreparably harmed by a denial of his request for
injunctive relief. Plaintiff’s allegations suggest that the Defendants in this case no longer have
contact with him. Plaintiff does not address whether or not he is receiving care from another
mental health care provider. Plaintiff’s motion fails to address any of the standards for
injunctive relief and therefore must be denied.
IT IS THEREFORE ORDERED BY THE COURT that plaintiff’s Motion for
Temporary Restraining Order (Doc. 30) is DENIED.
IT IS SO ORDERED.
Dated: November 16, 2011
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

11

Fed. R. Civ. P. 65(d)(1).

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