Swift v. Cohart et al

Filing 58

MEMORANDUM AND ORDER - Swift's motion for preliminary injunction/temporary restraining order (filing 51 ) is denied. Swift's motion for preliminary injunction/temporary restraining order (filing 52 ) is denied. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CHARLES SWIFT,
Plaintiff,

8:14-CV-243

vs.
MEMORANDUM AND ORDER
RICHARD KYLER,
Defendant.
This matter is before the Court on two motions for preliminary
injunction and temporary restraining order filed by the plaintiff, Charles
Swift (filings 51 and 52). Those motions will be denied.
Ordinarily, when deciding whether to issue a temporary restraining
order or preliminary injunction, the Court begins with the four Dataphase
factors: (1) the threat of irreparable harm to the movant; (2) the state of the
balance between this harm and the injury that granting the injunction will
inflict on other parties; (3) the probability that the movant will succeed on the
merits; and (4) the public interest. Johnson v. Minneapolis Park & Recreation
Bd., 729 F.3d 1094, 1098 (8th Cir. 2013); (citing Dataphase Sys., Inc. v. C L
Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc)). But in this case, there
is a preliminary matter that must be addressed: the relationship between
Swift's motions and the subject matter of his complaint.
The purpose of a preliminary injunction is "to preserve the status quo
and prevent irreparable harm until the court has an opportunity to rule on
the lawsuit's merits." Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994).
Thus, the movant must "establish a relationship between the injury claimed
in the party's motion and the conduct asserted in the complaint." Id.; see
Owens v. Severin, 293 F. App'x 425, 425 (8th Cir. 2008). And in this case, that
relationship is lacking. Swift's motions for preliminary injunction ask the
Court to enjoin the City of Omaha from allegedly pursuing a policy of illegally
arresting citizens without probable cause. See, filings 51 and 52. The only
claim still pending in this case, however, is Swift's 42 U.S.C. § 1983 claim
against Richard Kyler, in his individual capacity, for the alleged violation of
Swift's Fourth Amendment rights. See filing 8. For that claim, there is no
status quo to preserve: the injury Swift alleges has already been inflicted.
Swift may, or may not, be entitled to damages for Kyler's alleged wrongdoing,
but there is nothing to enjoin.

Furthermore, the general rule is that injunctions may not be enforced
against nonparties. See Nat'l Spiritual Assembly of Bahá'ís of U.S. Under
Hereditary Guardianship, Inc. v. Nat'l Spiritual Assembly of Bahá'ís of U.S.,
Inc., 628 F.3d 837, 848 (7th Cir. 2010). And the City of Omaha is not a party
to this lawsuit, because the Court found that Swift did not successfully state
a claim for relief against the City. See filing 8. In asking for the Court to
enjoin the City from acting on its purported policy, Swift is asking the Court
for relief that cannot be enforced.
But even if the Dataphase factors are employed, the Court finds that
injunctive relief is unwarranted. A preliminary injunction is an extraordinary
remedy, and the movant bears the burden of establishing its propriety.
Roudachevski v. All-Am. Care Centers, Inc., 648 F.3d 701, 705 (8th Cir. 2011);
see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). And
Swift has presented no evidence in support of his motions. A preliminary
injunction is customarily granted on the basis of procedures that are less
formal and evidence that is less complete than in a trial on the merits. Olin
Water Servs. v. Midland Research Labs., Inc., 774 F.2d 303, 308 (8th Cir.
1985). But an injunction cannot be based on the allegations of the complaint
and the assertions of the movant: there must be "competent, material, and
credible evidence[,]" because "[f]acts, not conclusions or opinions, must be
stated upon which the court may base its judgment, according to established
principles governing equitable relief by injunction." Guar. Trust Co. of New
York v. Henwood, 86 F.2d 347, 354 (8th Cir. 1936).
There is no such evidence here. Accordingly, Swift has not shown that
he is likely to suffer irreparable harm, and it was his burden to "demonstrate
that irreparable injury is likely in the absence of an injunction." Winter, 555
U.S. at 22; see Minn. Bearing Co. v. White Motor Corp., 470 F.2d 1323, 1326
(8th Cir. 1973). Even if Swift had a likelihood of success on the merits of his
remaining claim—a matter the Court does not address—a preliminary
injunction cannot issue without a showing of irreparable harm. Dataphase,
640 F.2d at 114 n.9. Such a showing requires evidence that has not been
presented to the Court.
Finally, the Court notes that an injunction must "state its terms
specifically" and "describe in reasonable detail . . . the act or acts restrained
or required." Fed. R. Civ. P. 65(d)(1). But Swift's motions ask only that the
City be "estopp[ed] [and] enjoin[ed]" from arresting citizens "bogusly" as was
allegedly done to Swift, or that the City should be "estopp[ed] [and]
enjoin[ed]" from "further arressting [sic] illegally." See, filings 51 and 52.
Thus, even if Swift's motions for injunctive relief related to his remaining
claim for relief, which they don't, and even if the Court could enjoin the nonparty City of Omaha, which it can't, and even if Swift had proven the factors
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necessary to establish an entitlement to injunctive relief, which he hasn't:
Swift's requested injunction does not meet the requirements of Rule 65(d)(1).
IT IS ORDERED:
1.

Swift's motion for preliminary injunction/temporary
restraining order (filing 51) is denied.

2.

Swift's motion for preliminary injunction/temporary
restraining order (filing 52) is denied.

Dated this 14th day of September, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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