Miller v. Waller, et al

Filing 6

MEMORANDUM AND ORDER denying 4 Motion for TRO. Signed by District Judge Julie A. Robinson on 9/28/2012.Mailed to pro se party Terrell Miller, 550 N Nims, Apt 114, Wichita, KS 67203 by regular mail. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERRELL J. MILLER,
Plaintiff,
vs.
STATE OF KANSAS, et al.,
Defendants.
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Case No. 12-1356-JAR-KMH

MEMORANDUM AND ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER
This lawsuit was filed pro se by Terrell J. Miller,1 under 42 U.S.C. § 1983, stemming
from state criminal charges of indecent liberties with a child pending against him in Sedgwick
County, Kansas District Court. Plaintiff alleges that Defendants, the Honorable Warren Wilbert
and the Honorable Gregory Waller, Sedgwick County Assistant District Attorney Tom Weilert,
and his court-appointed Public Defender Ken Newton, obtained numerous continuances in the
criminal proceedings without his permission, violating his rights under the Speedy Trial Act and
the Fourteenth Amendment.2 On September 26, 2012, Plaintiff filed a Motion for Leave to File
Temporary Restraining Order (Doc. 4) asking this Court to enjoin his criminal trial in Sedgwick
County District Court set to commence on October 1, 2012.3 At the time this motion was filed,
summons had not yet issued to Defendants, and Plaintiff seeks injunctive relief without notice to
Defendants.

1

Plaintiff also seeks leave to proceed in forma pauperis (Doc. 3), which remains pending.

2

Although Plaintiff names the State of Kansas as a defendant, his Complaint identifies the individual
defendants only, alleging that they were acting under the color of state law.
3

Sedgwick County District Court Case No. CR 10-2405.

Under Fed. R. Civ. P. 65(b)(1), the Court may issue a temporary restraining order without
written or oral notice to the adverse party under the following circumstances:
(A) specific facts in an affidavit or a verified complaint clearly
show that immediate and irreparable injury, loss, or damage will
result to the movant before the adverse party can be heard in
opposition; and
(B) the movant’s attorney certifies in writing any efforts made to
give notice and the reasons why it should not be required.
To obtain a temporary restraining order or a preliminary injunction, the moving party
must show a clear and unequivocal right to relief.4 The moving party must establish the
following elements to obtain relief:
(1) a substantial likelihood of success on the merits; (2) a showing
of irreparable injury unless the injunction issues; (3) proof that the
threatened injury to the movant outweighs whatever damage the
proposed injunction may cause the opposing party; and (4) a
showing that the injunction, if issued, would not be adverse to the
public interest.5
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 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.”6
There are three types of injunctions that are disfavored in the Tenth Circuit and are thus
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

4

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

5

Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005).

6

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

2

the movant all the relief that it could recover at the conclusion of a full trial on the merits.7 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.”8
Plaintiff does not cite to nor discuss the elements required for obtaining a temporary
restraining order or why notice of his motion should not be required. Plaintiff has not proffered
any argument or evidence that he is substantially likely to succeed on his § 1983 claims, as the
Younger abstention doctrine likely precludes this Court from enjoining pending state court
criminal proceedings when such relief could adequately be sought before the state court.9
Younger requires a federal court to abstain when “(1) there is an ongoing state criminal, civil or
administrative proceeding, (2) the state court provides an adequate forum to hear the claims
raised in the federal complaint, and (3) the state proceedings ‘involve important state interests,
matters which traditionally look to state law for their resolution or implicate separately
articulated state policies.’”10 Since this case involves ongoing state criminal proceedings in
which the state’s interest in enforcing its criminal statutes is at stake, and Plaintiff has the
opportunity to raise constitutional issues and appeal those issues if he believes they are wrongly
decided, abstention under Younger would appear proper in this case.
The Younger doctrine is not without its own exceptions, as federal courts may “enjoin a
7

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (per
curiam), aff’d, 126 S. Ct. 1211 (2006); see also Schrier, 427 F.3d at 1258–59.
8

Id.

9

Younger v. Harris, 401 U.S. 37 (1971).

10
Amanatullah v. Colo. Bd. of Medical Examiners, 187 F.3d 1160, 1163 (10th Cir. 1999) (quoting Taylor v.
Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997), cert. denied, 523 U.S. 1005 (1998)).

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pending state criminal prosecution provided that it was (1) commenced in bad faith or to harass,
(2) based on a flagrantly and patently unconstitutional statute, or (3) related to any other such
extraordinary circumstance creating a threat of ‘irreparable injury’ both great and immediate.”11
Plaintiff has not alleged, much less shown, that any exceptions to the Younger doctrine are
implicated. Although Plaintiff asserts that the delays in bringing him to trial were done to delay
justice, he does not allege that the prosecution was commenced in bad faith, and his reference to
Jessica’s Law is not in the context of whether it is constitutional, but rather whether the
prosecution’s invocation of the law infringed his right to a speedy trial. Finally, even assuming
that Plaintiff could come forward with the facts necessary to show a substantial likelihood of
success on the merits, he has not alleged or shown that he will suffer the sort of irreparable harm
that would justify granting immediate equitable relief. The state courts appear to provide
Plaintiff with a full and adequate venue for vindicating his asserted rights, and he is clearly
represented by counsel in the state court proceedings. Plaintiff’s motion is denied.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion for
Temporary Restraining Order (Doc. 4) is DENIED.
IT IS SO ORDERED.
Dated: September 28, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

11

Phelps v. Hamilton, 59 F.3d 1058, 1064 (10th Cir. 1995).

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