Downing v. Graves et al

Filing 34

ORDER Denying 28 Plaintiff's Motion for Temporary Restraining Order. Signed by Judge James C. Mahan on 10/04/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CURTIS L. DOWNING,
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Plaintiff,
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vs.
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JOHNNIE GRAVES, et al.,
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Defendants.
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2:12-cv-00332-JCM-CWH
ORDER

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Presently before the court is pro se plaintiff Curtis L. Downing’s motion for a temporary
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restraining order. (Doc. # 28).
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I.

Background

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Plaintiff is a prisoner currently in custody at the Southern Desert Correctional Center.
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Plaintiff, a self-described “jailhouse lawyer”, alleges that he is the subject of a conspiracy between
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the law library supervisor, Rashonda Smith, and correctional officer “Mesa” (no first name given).
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Plaintiff maintains that Smith and Mesa have conspired in an effort to prevent him from assisting
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fellow inmates in filing lawsuits challenging their convictions, in violation of his and others’ First
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Amendment rights. More specifically, plaintiff alleges that Smith and Mesa have intentionally

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arranged the law library scheduling sessions in a manner that makes it impossible for plaintiff to

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meet with the inmates he is assisting, and that they have confiscated various legal materials

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belonging to plaintiff and the inmates he is assisting.

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II.

Legal Standard

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According 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. Fed. R. Civ. P.65. “The purpose of a temporary restraining order is to

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preserve the status quo before a preliminary injunction hearing may be held; its provisional remedial

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nature is designed merely to prevent irreparable loss of rights prior to judgment.” Estes v. Gaston,

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no. 2:12-cv-1853-JCM-VCF, 2012 WL 5839490, at *2 (D. Nev. Nov. 16, 2012) (citing Sierra On-

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Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)). “Thus, in seeking a

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temporary restraining order, the movant must demonstrate that the denial of relief will expose him to

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some significant risk of irreparable injury.” Id. (quoting Associated Gen. Contractors of California

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v. Coalition of Economic Equity, 950 F.2d 1401, 1410 (9th Cir. 1991).1

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III.

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Discussion
Plaintiff moves the court to require the Southern Desert Correctional Center to return the

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allegedly confiscated materials, and seeks a determination that the prison’s policies regarding library

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access and legal materials serve no legitimate penological purpose, and are instead intended to make

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it more difficult for prisoners to access the courts. Plaintiff essentially seeks a court order requiring

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that the prison make it easier for him to assist other inmates in the research, drafting, and filing of

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lawsuits.

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...

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The Supreme Court has stated that courts must consider the following factors in determining whether to issue a
temporary restraining order and preliminary injunction: (1) a likelihood of success on the merits; (2) likelihood of irreparable
injury if preliminary relief is not granted; (3) balance of hardships; and (4) advancement of the public interest. Winter v.
N.R.D.C., 129 S. Ct. 365, 374–76 (2008).

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Plaintiff must establish real and immediate irreparable harm before this court may grant a

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temporary restraining order. Plaintiff has not met that high burden. Based on the facts presented,

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plaintiff’s alleged injuries do not establish the requisite immediacy to warrant a temporary

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restraining order. Temporary restraining orders are a mechanism for the court to deal with real,

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immediate, and serious risks and injuries. This motion simply does not rise to that level, and the

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court further finds that there is not a high enough likelihood of success on the merits to grant a

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temporary restraining order.

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When considering penological interests, the court should first determine the reasonableness

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of the regulation. See Turner v. Safely, 482 U.S. 78, 89-90 (1987). Because plaintiff filed the instant

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motion seeking a temporary restraining order, the prison has not yet had the opportunity to justify its

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policies regarding the scheduling of library sessions or the possession of other inmates’ legal

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materials. However, plaintiff also filed the exact same motion seeking a preliminary injunction.

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(See doc. # 29). The court finds it appropriate to permit the prison to respond to these allegations via

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the normal briefing schedule of a preliminary injunction.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for a

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temporary restraining order (doc. # 28) be, and the same hereby is, DENIED.
Dated October 4, 2013.

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UNITED STATES DISTRICT JUDGE
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