Waterman v. Board of Commissioners of Columbus, Kansas et al

Filing 14

ORDER ENTERED: The court denies without prejudice plaintiff's motion 7 for preliminary injunction and plaintiff's motion 12 for appointment of counsel. Signed by U.S. District Senior Judge Sam A. Crow on 06/27/18. Mailed to pro se party Brian Michael Waterman by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,
Plaintiff,
vs.

Case No. 18-3135-SAC

BOARD OF COMMISSIONERS, et al.,
Defendants.

O R D E R
This case is before the court upon plaintiff’s motion for a
preliminary injunction (Doc. No. 7) and plaintiff’s motion for
appointment of counsel (Doc. No. 12).

Plaintiff is a pretrial

detainee at the Cherokee County Jail.

He is proceeding pro se.

The court gives his pleadings a liberal interpretation.
I. Motion for preliminary injunction
A. Plaintiff’s allegations
Plaintiff alleges that, as a pretrial detainee at the Cherokee
County Jail, in June 2017 he was placed on a medical diet because
he had lost significant weight.
pounds.

At that time he weighed 151

Plaintiff left the Cherokee County Jail on November 28,

2017 weighing approximately 181 pounds and returned on February 1,
2018 weighing 171 pounds.

Plaintiff claims that he lost five

pounds during his first week back and that by May 31, 2018, he
weighed 149 pounds.

Plaintiff further asserts that defendant

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Kristin Wagner, a nurse who attends to the jail, has followed a
policy since plaintiff’s return which does not permit a medical
diet

(in

other

words,

increased

food

portions)

as

plaintiff’s body mass index (“BMI”) is 18 or more.

long

as

Plaintiff

alleges that he also has a staph infection and that he had to file
a grievance to get antibiotics from Wagner.
is

retaliating

against

plaintiff

because

He asserts that she
plaintiff

has

filed

grievances, registered complaints with oversight agencies, and
contacted government officials to object.
B. Preliminary injunction standards
The standards for a preliminary injunction are the same as
the standards for a temporary restraining order.1
of the Army, 755 F.Supp. 362, 364 (D.Kan. 1991).

Pruner v. Dept.
A preliminary

injunction order is an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing,
carries the burden of persuasion.

See Heideman v. S. Salt Lake

City, 348 F.3d 1182, 1188 (10th Cir. 2003).

To prevail on the

motion, a plaintiff must establish: (1) that irreparable injury
will result unless the order is issued; (2) the threatened injury
outweighs whatever damage the proposed restraining order may cause
the defendants; (3) the restraining order, if issued, will not be
adverse to the public interest; and (4) a substantial likelihood

1

Plaintiff sought and was denied a temporary restraining order recently in
another case he has filed regarding his treatment in the Cherokee County Jail.
See Case No. 18-3092, Doc. No. 11).

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of success on the merits. Id. Where the movant decidedly prevails
on the first three factors, he or she may establish a “likelihood
of success” by showing questions going to the merits so serious,
substantial, difficult, and doubtful as to make them ripe for
litigation.
injunction

Id. at 1189.
which

would

Plaintiff appears to be seeking an
alter

the

status

quo.

In

these

circumstances, plaintiff must make a strong showing of a likelihood
of success on the merits and that the balance of harms is in his
favor.

O

Centro

Espirita

Beneficiente

Uniao

Do

Vegetal

v.

Ashcroft, 389 F.3d 973, 975-76 (10th Cir. 2004).
Federal statutory law requires that “[t]he court shall not
grant or approve any prospective relief unless the court finds
that such relief is narrowly drawn, extends no further than
necessary to correct the violation of the Federal right, and is
the least intrusive means necessary to correct the violation of
the Federal right.”

18 U.S.C. § 3626(a)(1)(A).

The Federal Rules

of Civil Procedure also mandate reasonable specificity in the scope
of an injunctive order.

FED.R.CIV.P. 65(d)(1) provides that any

order granting an injunction or restraining order “describe in
reasonable detail . . . the act or acts restrained or required.”
B. Analysis
1. Irreparable harm
This

is

the

most

important

prerequisite

to

preliminary injunction or temporary restraining order.
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obtain

a

See New

Mexico Dept. of Game and Fish v. U.S. Dept. of Interior, 854 F.3d
1236, 1249 (10th Cir. 2017).

A plaintiff must show a significant

risk that he will be harmed in a manner that cannot be compensated
after the fact by money damages.

Id. at 1250 (quoting Fish v.

Kobach, 840 F.3d 710, 751-52 (10th Cir. 2016)).

The harm must not

be not speculative; a significant risk of irreparable harm must be
demonstrated.

Id.

(interior

quotation

omitted).

Here,

plaintiff’s allegations leave the court to speculate as to whether
there

is

an

imminent

risk

of

a

physical

injury

and

whether

defendant’s actions are chilling plaintiff’s exercise of his First
Amendment rights.

There is no strong showing of either in the

facts plaintiff has alleged.

Moreover, plaintiff does not allege

facts establishing that defendant Wagner’s actions are motivated
to retaliate against plaintiff.

Without such a showing, the court

cannot conclude that plaintiff will likely suffer a constitutional
injury.
2. Public interest
The Supreme Court and the Tenth Circuit have frequently
recognized that it is in the public’s interest to afford deference
to jail officials in managing the day-to-day operations of a jail
given the unique nature, needs and concerns in the prison or jail
environment.

See Doe v. Heil, 533 Fed.Appx. 831, 843-44 (10th Cir.

2013)(citing multiple Supreme Court cases and a Tenth Circuit
case).

The court has relied upon this factor as partial grounds
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to

deny

other

administrators.

motions

for

injunctive

relief

against

prison

See Cox v. Denning, 2013 WL 1687094 *2 (D.Kan.

4/18/2013); Heistand v. Coleman, 2008 WL 5427772, at *6 (D. Kan.
Dec. 31, 2008).
3. Likelihood of success on the merits
Because plaintiff has failed to allege facts demonstrating a
retaliatory motive in his motion, the court finds that plaintiff
has not established a likelihood of success on the merits.
4. Vagueness
Plaintiff’s

motion

seeks

“a

preliminary

injunction

and

temporary restraining order against [defendant] Wagner at the
Cherokee County Jail for his immediate health and safety.”
No. 7, pp. 3-4.

Doc.

This vaguely described relief is not consistent

with the requirements of 18 U.S.C. § 3626(a)(1)(A) and Rule
65(d)(1)(C).

The vagueness also impedes the court’s ability to

balance the benefits and harms of any injunctive relief.
5. Summary
Upon review of the relevant legal factors and the facts
alleged in plaintiff’s motion, the court shall deny plaintiff’s
motion for a temporary restraining order.
II. Plaintiff’s motion for appointment of counsel
Plaintiff’s
denied.

motion

for

appointment

of

counsel

shall

be

The court’s position is the same as the court explained

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in another of plaintiff’s cases, Waterman v. Crawford County Jail,
Case No. 18-3035, Doc. No. 24.

There the court stated:

This case is before the court upon plaintiff’s motion
for appointment of counsel.
In deciding whether to
appoint counsel, the district court should consider “the
merits of the prisoner’s claims, the nature and
complexity of the factual and legal issues, and the
prisoner’s ability to investigate the facts and present
his claims.” Hill v. SmithKline Beecham Corp., 393 F.3d
1111, 1115 (10th Cir. 2004).
“It is not enough ‘that
having counsel appointed would have assisted [the
prisoner] in presenting his strongest possible case,
[as] the same could be said in any case.’” Steffey v.
Orman, 461 F.3d 1218, 1223 (10th Cir. 2006)(quoting Rucks
v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).
The court understands that plaintiff faces obstacles in
presenting the facts and law concerning his case. But,
the screening process has not been completed in this
case. At this stage, plaintiff should be able to address
the issues regarding whether a claim for relief has been
stated and whether he disputes the policies and
procedures and other facts alleged in the Martinez
report. Considering all of the circumstances, including
that the merits of the case are unclear, the court shall
deny plaintiff’s motion for appointment of counsel
without prejudice to plaintiff renewing his request at
a later point in this litigation.
III. Conclusion
For the above-stated reasons the court shall deny without
prejudice plaintiff’s motion for preliminary injunction (Doc. No.
7) and plaintiff’s motion for appointment of counsel (Doc. No.
12).

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IT IS SO ORDERED.
Dated this 27th day of June, 2018, at Topeka, Kansas.

s/Sam A. Crow __________________________
Sam A. Crow, U.S. District Senior Judge

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