Bearchild v. Cobban et al

Filing 47

ORDER denying 39 Motion for TRO and for Preliminary Injunction; granting 41 'Request to Allow to be Excused for Lack of Adequate Copies of Affidavits, due to Lack of Funds to Make Copies'; denying as moot 42 Request to the Court to not be required to post security in regard to motion for a TRO and preliminary injunction ; denying 41 'Request for Immediate Help from this Court.' Signed by Judge Dana L. Christensen on 10/23/2015. Mailed to Bearchild. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

FILED
OCT 2 3 2015
Clb~t l:J.S. District Court
net.Of Montana

Missoula

DEWAYNE BEARCHILD,

CV 14-00012-H-DLC-JTJ

Plaintiff,
vs.

ORDER

KRISTY COBBAN, SGT. PASHA,
SAM JOVANOVICH, TOM BLAZ,
DAN JOHNSON and C/O
SHASHLINGE,
Defendants.
Plaintiff Dewayne Bearchild is a prisoner proceeding in forma pauperis and
without counsel. He has filed three motions: (1) a "Motion for Temporary
Restraining Order and Preliminary Injunction" (Doc. 39); (2) a "Request to Allow
to be Excused, for Lack of Adequate Copies of Affidavits, due to Lack of Funds to
Make Copies and Request for Immediate Help from this Court" (Doc. 41 ); and (3)
a "Request to the Court that he should not be required to post security in regard to
his motion for a TRO and preliminary injunction against Defendants" (Doc. 42).
The Motion for Temporary Restraining Order and Preliminary Injunction
will be denied, the Motion to be Excused from Servicing Copies of Affidavits will
be granted but the Request for Immediate Help will be denied. The Motion to not

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be Required to Post Security will be denied as moot.
I. Motion for TRO and Preliminary Injunction

"A preliminary injunction is an extraordinary remedy never awarded as of
right." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008)
(citations omitted). It serves not as a preliminary adjudication on the merits, but as
a tool to preserve the status quo and prevent irreparable loss of rights before
judgment. Textile Unlimited, Inc. v. A .. BMH & Co., Inc., 240 F.3d 781, 786 (9th
Cir. 2001). In reviewing a motion for preliminary injunction, "courts must balance
the competing claims of injury and must consider the effect on each party of the
granting or withholding of the requested relief." Winter, 555 U.S. at 24 (citations
and internal quotation marks omitted). "A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the public interest." Winter,
555 U.S. at 20 (citations omitted). A temporary restraining order, in tum, "is
designed to preserve the status quo until there is an opportunity to hold a hearing
on the application for a preliminary injunction." 1 lA Charles Alan Wright et al.,
Federal Practice and Procedure§ 2951 (3d ed. West 2005).
Winter does not expressly prohibit use of a "sliding scale approach to

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preliminary injunctions" whereby "the elements of the preliminary injunction test
are balanced, so that a stronger showing of one element may offset a weaker
showing of another." Alliance/or the Wild Rockies v. Cottrell, 632 F.3d 1127,
1131 (9th Cir. 2011). The Ninth Circuit recognizes one such "approach under
which a preliminary injunction could issue where the likelihood of success is such
that serious questions going to the merits were raised and the balance of hardships
tips sharply in plaintiffs favor." Id. (citations and internal quotation marks
omitted).
Nevertheless, a preliminary injunction "should not be granted unless the
movant, by a clear showing, carries the burden of persuasion." Lopez v. Brewer,
680 F.3d 1068, 1072 (9th Cir. 2012) (citations omitted, emphasis in original). A
request for a mandatory injunction seeking relief well beyond the status quo is
disfavored and shall not be granted unless the facts and law clearly favor the
moving party. Stanleyv. Univ. ofS. Cal., 13F.3d1313, 1319-20(9thCir.1994).
Mr. Bearchild seeks an order prohibiting Defendants from (1) giving his
mail to other inmates; (2) confiscating his legal documents and mail; (3)
interfering with his access to his job by not opening up his cell door when he is
called out to work; (4) retaliating against him in any way; and (5) requiring
Defendant Pasha to stay away from Mr. Bearchild. (Doc. 39.) He contends these
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actions are being done because he filed and is litigating this lawsuit.
Although Mr. Bearchild has produced evidence that his mail may have been
delivered to other inmates and/or that he may have missed a day of work because
his cell door was not opened, he does not connect those acts with a particular
defendant named in this action and he does not establish that such actions were
done in retaliation for his activities in this lawsuit. Further, he does not explain
when or who may have confiscated his legal documents. While he has presented
evidence that Defendant Pasha may have been looking at him in the dining hall,
there is no evidence that Defendant Pasha is in regular contact with Mr. Bearchild
and Mr. Bearchild no longer works at the dining hall.
Mr. Bearchild has not met his burden of demonstrating that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest. The motion for preliminary injunction will be
denied.
II. Request to Excuse Lack of Adequate Copies

Mr. Bearchild represents that he did not have sufficient funds to provide
copies of the affidavits filed in support of his motion for a preliminary injunction
and TRO to counsel for Defendants. His motion will be granted to the extent it
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pertains to copies of documents filed with the Court.
The motion also contains language which could be construed as an
additional request for a preliminary injunction against Defendant Pasha. That
request has been addressed above and will be denied.

III. Request to Not Post Security
In light of the Court's denial of Mr. Bearchild's motion for preliminary
injunction and TRO, his request to not be required to post security will be denied
as moot.
Based upon the foregoing, the Court issues the following:

ORDER
1. Mr. Bearchild's "Motion for a Temporary Restraining Order and a
Preliminary Injunction" (Doc. 39) is denied.
2. Mr. Bearchild's "Request to Allow to be Excused for Lack of Adequate
Copies of Affidavits, due to Lack of Funds to Make Copies" (Doc. 41) is granted.

Unless Defendants object within seven (7) days of the date of this Order, Mr.
Bearchild need not serve on Defendants' counsel the materials he files with this
Court because Defendants' counsel will be served via the electronic filing system.
Mr. Bearchild will, however, be required to serve all discovery requests and other
documents not filed with the Court upon counsel by first-class mail. Defendants
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must, however, serve on Mr. Bearchild a complete copy of everything it submits to
the Court.
3. Mr. Bearchild's "Request for Immediate Help from this Court" (Doc. 41)
is denied.
4. Mr. Bearchild's "Request to the Court that he should not be required to
post security in regard to his motion for a TRO and preliminary injunction against
Defendants" (Doc. 42) is denied as moot.
5. At all times during the pendency of this action, Mr. Bearchild must
immediately advise the Court and opposing counsel of any change of address and
its effective date. Failure to file a notice of change of address may result in the
dismissal of the action for failure to prosecute pursuant to Federal Rule of Civil
Procedure 41 (b ).
DATED this 23"'iday ofOc

Dana L. Christensen, Chief Judge
United States District Court

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