Smith v. State of Montana et al

Filing 21

ORDER denying without prejudice 14 Motion for Protection as construed as a Motion for Temporary Restraining Order and Preliminary Injunction. Signed by Judge Dana L. Christensen on 4/30/2015. Mailed to Smith. (TAG, )

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

FILED
APR 3 0 2015
Cler!<. l:J.S District Court
D1stnct. Of Montana
Missoula

CV 14-00062-H-DLC-JTJ

BENJAMIN KARL SMITH,
Plaintiff,
vs.

ORDER

WARDENKIRKEGARD, SGT.
POSTMA, OFFICER DAVID AUGUST
(BOGUT), and CAPTAIN SCOTT
CLARK 1
'
Defendants.

Pending is Plaintiff Benjamin Smith's Motion to Seek Protection by the
Court from the Defendants (Doc. 14) which the Court has construed as a Motion
for temporary restraining order and/or preliminary injunction.
The Court does not have jurisdiction to decide Mr. Smith's motion because
he requests relief from individuals who have not filed an appearance in this matter
and he seeks to enjoin conduct which is unrelated to the present lawsuit. In
addition, he has not met the standard for issuance of a temporary restraining order

1

The case style has been amended to reflect the dismissal of Defendants
State of Montana, Montana State Prison, and the Montana Department of
Corrections. See April 23, 2015 Order adopting Findings and Recommendations
(Doc. 19.)
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or preliminary injunction. His motion will be denied.

I. Background
A. Plaintiff's Complaint
Mr. Smith alleges Defendants violated his First and Eighth Amendment
rights under the United States Constitution by interfering with his ability to
practice his religion during the holy month of Ramadan. The Complaint seeks
"any injunctive relief the Court deems necessary" and compensatory, and punitive
damages. (Complaint, Doc. 2 at 9.)
On initial screening, United States Magistrate Judge Johnston required
Defendants Kirkegard, Postma, August (Bogut), and Clark to respond to the
Complaint but recommended the dismissal of Defendants State of Montana,
Montana State Prison, and the Montana Department of Corrections. (Doc. 11.)
Defendants State of Montana, Montana State Prison, and the Montana Department
of Corrections were dismissed on April 23, 2015. (Doc. 19.) Defendants Postma,
Clark, Bogut, and Kirkegard filed a Waiver of Service on March 30, 2015 (Doc.
10) but have not yet filed a responsive pleading.

B. Mr. Smith's Motion
Mr. Smith seeks an order from the Court to protect him from the Defendants
and their associates. He alleges that as recently as March 9, 2015, he has been
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subjected to harassment, threats, racial and derogatory language, and mistreatment
from Montana State Prison staff. In addition, he alleges Defendant Clark refused
to investigate an incident involving racial language in December 2014. Mr. Smith
alleges that he has been harassed and denied vital legal materials since the filing of
this case. He strongly feels that his safety is at issue and asks the Court to order
Defendants to cease and desist the illegal actions taken. (Doc. 14.)
In response to Mr. Smith's Motion, Defendants argue that the motion should
be denied because: (1) Mr. Smith did not comply with the notice provisions of
Fed.R.Civ.P. 65(b); (2) Mr. Smith has not met the standards for a temporary
restraining order or a preliminary injunction; and (3) Mr. Smith failed to comply
with Local Rule 7.l(c)(l).
Mr. Smith did not file a Reply to Defendants' Response.
II. Legal Standard
"A preliminary injunction is 'an extraordinary and drastic remedy, one that
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) (quoting

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); see also Winter v.
Natural Res. Def Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted) ("[a]
preliminary injunction is an extraordinary remedy never awarded as of right"). A
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plaintiff seeking a preliminary injunction must show that ( 1) he is likely to
succeed on the merits, (2) he is likely to suffer irreparable harm without an
injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in
the public interest. Winter, 555 U.S. at 20. "But if a plaintiff can only show that
there are 'serious questions going to the merits '-a lesser showing than likelihood
of success on the merits-then a preliminary injunction may still issue if the
'balance of hardships tips sharply in the plaintiffs favor,' and the other two Winter
factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281,
1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011 )). Under this serious questions variant of the Winter
test, "[t]he elements ... must be balanced, so that a stronger showing of one
element may offset a weaker showing of another." Lopez, 680 F .3d at 1072.
The Prison Litigation Reform Act ("PLRA") imposes additional
requirements on prisoner litigants who seek preliminary injunctive relief against
prison officials and requires that any injunctive relief be narrowly drawn and the
least intrusive means necessary to correct the harm. 18 U.S.C. § 3626(a)(2); see
Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000).

III. Discussion
The Court's first concern is that it does not yet have jurisdiction over any
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party Mr. Smith is seeking to enjoin. As a general rule, courts are unable to issue
orders against individuals who are not parties to a suit pending before it. Zenith

Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969); Zepeda v. United
States Immigration Service, 753 F.2d 719, 727 (9th Cir. 1985) ("A federal court
may issue an injunction if it has personal jurisdiction over the parties and subject
matter jurisdiction over the claim; it may not attempt to determine the rights of
persons not before the court."). Here, although Defendants have waived service,
they have not yet responded to the Complaint.
Putting aside this technical impediment to the motion, Mr. Smith seems to
be seeking to enjoin conduct which is unrelated to his underlying lawsuit. The
Supreme Court has found that a preliminary injunction is appropriate to grant
relief of the "same character as that which may be granted finally." De Beers

Consol. Mines v. U.S., 325 U.S. 212, 220, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). A
court may not issue an injunction in "a matter lying wholly outside the issues in
the suit." Id. Although the Ninth Circuit has not addressed this issue directly,
other circuits have repeatedly held that a plaintiff seeking injunctive relief must
show "a relationship between the injury claimed in the party's motion and the
conduct asserted in the complaint." Devose v. Herrington, 42 F.3d 470, 471 (8th
Cir. 1994); see Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); Colvin v.
5

Caruso, 605 F.3d 282, 299-300 (6th Cir. 2010) (no preliminary injunction where
motion for relief was based on facts and circumstances entirely different from
initial claim); Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16
(4th Cir. 1997) (same).
Courts use injunctive relief to address issues related to the underlying
violations presented in the complaint. The only issue remaining in this lawsuit is
whether Defendants violated Mr. Smith's First Amendment rights by interfering
with his religious observation of Ramadan. However, in his motion for protection,
Mr. Smith attempts to advance a First Amendment retaliation claim and/or a
harassment claim.
The factual allegations in Mr. Smith's motion are unrelated to the factual
allegations in his Complaint. Mr. Smith makes no showing that the alleged
harassment is in any way connected to the alleged interference with his religious
practice in June/July 2014. This matter was not even served upon Defendants
until March 2, 2015. (Doc. 8.) New, unrelated complaints are properly lodged
using the prison grievance system, and if they remain unresolved, by filing a new
action.
To the extent that any of Mr. Smith's allegations may be related to his
underlying complaint, he has not met the standard for issuance of a temporary
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restraining order or preliminary injunction. He has not submitted any evidence
demonstrating that he is likely to succeed on the merits, there is no indication that
he is likely to suffer irreparable harm without an injunction or that the balance of
equities tips in his favor, and there is not showing that an injunction is in the
public interest.
Mr. Smith has made generalized allegations of harassment, threats, racial
and derogatory language, mistreatment from Montana State Prison staff, and a
refusal to investigate an incident of racial language. These are vague and
conclusory allegations. Mr. Smith has given no specific facts to support his
allegations and they are not directed at specific individuals. In sum, Mr. Smith has
failed to meet his burden on each element of the Winter test.
Based upon the foregoing, the Court issues the following:

ORDER
1. The reference to the Magistrate Judge is withdrawn as to Mr. Smith's

Motion for Protection.
2. Mr. Smith's Motion for Protection as construed as a Motion for
Temporary Restraining Order and Preliminary Injunction (Doc. 14) is denied
without prejudice.
3. At all times during the pendency of this action, Mr. Smith must
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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 Fed.R.Civ.P. 41(b).
DATED this

~d\.--lriday of April, 20

Dana L. Christensen, Chief Jutlge
United States District Court

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