Akers et al v. Keszei et al

Filing 312

ORDER Denying 310 Motion for Temporary Restraining Order and Denying 311 Motion for Evidentiary Hearing. Signed by Judge James C. Mahan on 8/30/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MONTGOMERY CARL AKERS, et al.,

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Plaintiffs,
v.
JAMES KESZEI, et al.,
Defendants.

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2:07-CV-00572-JCM-GWF
ORDER

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Presently before the court is plaintiff Akers’ renewed pro se motion for a temporary

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restraining order (“TRO”). (Doc. #310). Plaintiff has also filed a motion for an evidentiary hearing

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for a permanent injunction. (Doc. #311).

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Pursuant to Federal Rule of Civil Procedure 65, a court may issue a temporary restraining

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order when the moving party provides specific facts showing that immediate and irreparable injury,

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loss, or damage will result before the adverse party’s opposition to a motion for preliminary

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injunction can be heard. The Supreme Court has stated that courts must consider the following

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factors in determining whether to issue a temporary restraining order and preliminary injunction:

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(1) a likelihood of success on the merits; (2) likelihood of irreparable injury if preliminary relief is

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not granted; (3) balance of hardships; and (4) advancement of the public interest. Winter v.

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N.R.D.C., 555 U.S. 7, 20 (2008).

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On August 5, 2011, the court denied substantially similar TRO and evidentiary hearing

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motions filed by the plaintiff. (Doc. #300). In its order, the court noted that plaintiff failed to

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request specific relief and that plaintiff had not demonstrated a likelihood of success on the merits

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or a likelihood of irreparable injury. (Doc. #300). Plaintiff’s appeal of this order is currently

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pending at the Ninth Circuit. (Doc. #303).

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Plaintiff has now filed the instant motion, including changes intended to address the

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deficiencies identified in his earlier motion. (See Doc. #310). Plaintiff has attached several

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documents that purportedly substantiate his claims. (Doc. #310). Further, he has included three

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requests for specific relief: (1) a TRO preventing the Federal Bureau of Prisons from wrongfully

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interfering with his financial communications, (2) an order for the Federal Bureau of Prisons to

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show cause for its alleged interference, and (3) an evidentiary hearing for a proposed permanent

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injunction. (Doc. #310).

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Plaintiff alleges that the Federal Bureau of Prisons is interfering with his financial

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communications. (Doc. #310). Specifically, plaintiff asserts that prison authorities are intercepting

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plaintiff’s outgoing mail to Wachovia/Wells Fargo. (Doc. #310). Plaintiff argues that this

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interference has prevented him from retaining the attorney of his choice. (Doc. #310). Plaintiff also

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asserts that an unknown agent has removed $140,000 from his account since he arrived at prison.

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(Doc. #310). Plaintiff has not connected this allegation to any conduct by the prison authorities,

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and the issue is apparently unrelated to the instant motion.

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The crux of plaintiff’s argument is that he does not have access to his existing bank account

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to pay the retainer fee for the attorney of his choice. However, all of the exhibits provided by

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plaintiff refer to payments into plaintiff’s bank account, not payments from the account. In other

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words, plaintiff has not shown that he has made any attempt to make payments from his bank

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account to retain the lawyer; he has only attempted to get deposits into his account. This fact

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supports the Federal Bureau of Prisons’ stated reason for its refusal to deliver plaintiff’s mail:

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“[i]nmates are precluded from starting, operating or participating in a business while incarcerated.”

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(Doc. #310, Ex. #1). Therefore, plaintiff has not demonstrated a likelihood of success on the

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merits. See Winter, 555 U.S. at 20.

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Further, even assuming that plaintiff is attempting to organize payments into his account for

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the sole purpose of paying the attorney retainer fee, plaintiff has not demonstrated a likelihood of

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irreparable injury. See id. If plaintiff actually has a source of funds ready, willing, and able to

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contribute to plaintiff’s retainer payment, there is no reason the funds have to go through plaintiff’s

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bank account. The source could pay the retainer fee directly to the attorney on plaintiff’s behalf.

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Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s renewed
motion for TRO (doc. #310) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for an evidentiary hearing for a
permanent injunction (doc. #311) be, and the same hereby is, DENIED.

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DATED: August 30, 2011.

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UNITED STATES DISTRICT JUDGE
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