Eastman v. Swanson et al

Filing 11

ORDER re 10 Affidavit/Declaration filed by Franklin Corbin Eastman. Mr. Eastman's Declaration and proposed Order, to the extent they can be construed as a Motion for a Temporary Restraining Order and Preliminary Injunction, are DENIED. Signed by Judge Donald W. Molloy on 4/18/2012. Mailed to Eastman. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA

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FRANKLIN CORBIN EASTMAN,

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Cause No. CV 11-00073-H-DWM-RKS

Plaintiff,

vs.

ORDER

ROSS SWANSON, et aI.,

Defendants.

Plaintiff Franklin Eastman filed a declaration and a proposed order "to show
cause for a preliminary injunction and a temporary restraining order." (Dkt. 10).
These documents have been construed as a motion for a preliminary injunction
and a temporary restraining order and as such will be denied.

Mr. Eastman's Complaint, filed December 12, 2011, raises allegations of
discrimination, harassment, and deliberate indifference on the basis of Mr.
Eastman's transgender status. It appears from the proposed order that Mr. Eastman
is seeking a preliminary injunction and restraining order prohibiting Defendants
and all other persons acting in concert with and in participation with them from
threatening, harassing, punishing, intimidating and retaliating against him. (Dkt.
10-1, pp. 3).

Mr. Eastman has not complied with the notice provisions of Rule 65 of the
Federal Rules of Civil Procedure. A preliminary injunction may only be issued on
notice to the adverse party. Fed.R.Civ.P.65(a)(l). A temporary restraining order
may be granted without written or oral notice to the adverse party or that party's
attorney if: (I) it clearly appears from specific facts shown by affidavit or by the
verified complaint that immediate and irreparable injury, loss or damage will result
to the applicant before the adverse party or the party's attorney can be heard in
opposition, and (2) the applicant's attorney (plaintiff himself in this case, as he
proceeds pro se) certifies in writing the efforts, if any, which have been made to
give notice and the reasons supporting the claim that notice should not be
required. Fed.R.Civ.P. 65(b). Mr. Eastman has not satisfied either requirement.
"The purpose of a preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be held." Unjv. of Texas v.
Camenisch, 451 U.S. 390,395 (1981). A party seeking a preliminary injunction
must either establish a likelihood of success on the merits, a likelihood of
irreparable injury if injunctive reliefis not granted, a balance of hardships favoring
the movant, and an advancement of the public interest, Winter v. Natural Res. Def.
Council, 555 U.S. 7, 20 (2008) (internal citations omitted), or demonstrate that
"serious questions going to the merits were raised and the balance of hardships
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tips sharply in the plaintiff's favor." Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1134 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981,
987 (9th Cir. 2008).

In addition, the Prison Litigation Refonn Act requires that,
In any civil action with respect to prison conditions, to the extent
otherwise authorized by law, the court may enter a temporary
restraining order or an order for preliminary injunctive relief.
Preliminary injunctive relief must be narrowly drawn, extend no
further than necessary to correct the hann the court finds requires
preliminary relief, and be the least intrusive means necessary to
correct that hann. The court shall give substantial weight to any
adverse impact on public safety or the operation of a criminal justice
system caused by the preliminary relief ...
18 U.S.C. § 3626(a)(2).
Mr. Eastman makes conclusory statements that he will suffer irreparable
injury and is likely to succeed at trial. But factually he only provides a list of
actions by prison officials which he contends are illegaVunconstitutional acts or
practices including: (I) an allegation his legal paperwork was seized from another
inmate whom Mr. Eastman was having find an envelope for him and the other
inmate was disciplined; (2) an allegation that he was advised by prison staffthat
he is being monitored; (3) a complaint that his mail was misdirected to the
infinnary; (4) an allegation that he missed a mental health appointment when he
was improperly sent to another unit; (5) a complaint that his room has been "shook
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down" six times since February 25, 2012; and (6) an allegation that when he
requests "OSR kites" Sgt. Miller refers to them as "rat kites." In addition, Mr.
Eastman complains about two disciplinary acts taken against him-one for not
having his hair up in a hair tie and the second one for going to his case manager's
office without being called.
Most of the incidents alleged seem to involve disciplinary issues within the
prison. None seem to be causing Mr. Eastman irreparable injury. The Court will
not interfere, at this early stage of the ligation, with the everyday interworkings at
the prison. This case is still in the prescreening stage and as such Mr. Eastman has
not yet made a sufficient showing that he is likely to succeed on the merits ofhis
claims.
Accordingly, Mr. Eastman's Declaration and proposed Order (Dkt. 10) to
the extent they can be construed as a Motion for a Temporary Restraining Order
and Preliminary Injunction are DENIED.
Dated this

J1r'day of April, 2012.

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