Butler (ID 103518) v. Schnurr et al

Filing 12

MEMORANDUM AND ORDER ENTERED: Plaintiff's motions for restraining order and immediate transfer 4 & 10 are denied. Signed by U.S. Senior District Judge Sam A. Crow on 11/22/17. Mailed to pro se party D'Shaun Jamar Butler by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D’SHAUN JAMAR BUTLER,
Plaintiff,
v.

CASE NO. 17-3138-SAC

(FNU) SCHNURR, et al.,
Defendants.
MEMORANDUM AND ORDER
This civil rights complaint was filed pursuant to 42 U.S.C. § 1983 by a prisoner confined at the
Hutchinson Correctional Facility in Hutchinson, Kansas. Plaintiff proceeds pro se and in forma pauperis
in this matter, which is before the court on plaintiff’s motions seeking a restraining order and immediate
transfer (Docs. 4 & 10). In his motions, plaintiff seeks a restraining order immediately transferring him
from Hutchinson Correctional Facility. In the first motion, plaintiff conclusorily alleges that he is
“continually” being harassed, threatened, and subjected to cruel and unusual punishment; that he was told
if he filed a lawsuit he would be retaliated against and killed; and that he knows defendants will retaliate
against him (Doc. 4). In the second motion, plaintiff alleges that (1) unidentified staff members threaten
and harass him daily and have threatened to have him hung in his cell; (2) Captain Tiggins (who is not a
named defendant) assaulted him with a Taser; (3) he is being housed in a cell covered by a fiberglass cage
and without a working toilet, (4) he is being subjected to psychological torture; and (5) Master Sergeant
Cullins (who is not a named defendant) has threatened to have him killed (Doc. 10).
It is well-settled that to obtain a preliminary injunction, the moving party must demonstrate four
things: (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 interest. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). The
movant must also show a relationship between the injury claimed in his motion and the conduct alleged in
the complaint. Id. Finally, a mandatory preliminary injunction such as the one plaintiff seeks, which

requires the non-moving party to take affirmative action, is disfavored as an “extraordinary remedy”. Id.
Plaintiff must therefore make a heightened showing of the four factors. Id.
After reviewing plaintiff’s motions and complaint, the court finds that plaintiff fails to satisfy
these requirements, and finds persuasive the reasoning in Escobar v. Jones, 2011 WL 1642429 (D. Colo.
Jan. 10, 2011). In Escobar, the plaintiff prisoner alleged threatened physical injury by other inmates and
defendants and sought transfer to another prison facility. In denying plaintiff’s motion for injunctive
relief, the court found that conclusory allegations of verbal harassment and threats of physical injury,
without evidentiary support, do not establish a risk of irreparable harm. Id. at *3. Similarly, Mr. Butler
complains that he has been verbally harassed and threatened with physical injury, but the court cannot
conclude, based upon these allegations, that such threats credibly demonstrate a risk of harm that is
“certain, great, actual, and not theoretical.” Id. (quoting Heideman v. S. Salt Lake City, 348 F.3d 1182,
1189 (10th Cir. 2003). The court further finds plaintiff’s bare allegations about the Taser and the
conditions of his cell insufficient to show a risk of future irreparable harm. Accordingly, plaintiff has not
met his burden and the court therefore denies plaintiff’s motions.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff’s motions for restraining
order and immediate transfer (Docs. 4 and 10) are denied.
IT IS SO ORDERED.
Dated this 22nd day of November, 2017, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge