Bacon v. Reyes

Filing 25

ORDER Denying 22 Plaintiff's Motion for Temporary Restraining Order. Signed by Judge James C. Mahan on 10/16/2012. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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PERCY LAVAE BACON,

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2:12-CV-1222 JCM (VCF)

Plaintiff(s),

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v.
OSWALD REYES,

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Defendant(s).
ORDER
Presently before the court is plaintiff, appearing pro se, Percy Lavae Bacon’s motion for a
temporary restraining order. (Doc. # 22). Defendants have not filed a response.

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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.” Miller v. Rufion,

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No. 08-1233, 2009 WL 348176, at *1 (E.D. Cal. Feb. 11, 2009) (citing Sierra On-Line, Inc. v.

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

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

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

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

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James C. Mahan
U.S. District Judge

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In plaintiff’s motion, he alleges that his constitutional rights have been violated because he

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can no longer personally microwave his own food. (See doc. # 22). The new policy appears to be

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that the prison utilizes “microwave porters” to heat up food for the prisoners. (See id.). The old

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policy apparently allowed inmates to personally microwave their own food. (See id.). Plaintiff seeks

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this temporary restraining order because of the alleged threat of unsanitary and disease carrying

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porters. (See id.). Plaintiff alleges this new policy is “cruel and unusual,” an “equal protection

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violation,” and violates “the protection[s] of the United States Constitution.” (See id.).

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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 restraining

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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

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its microwave regulations. (See doc. # 22). However, plaintiff also filed the exact same motion

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seeking a permanent injunction. (Doc. # 23). The court finds it appropriate to permit the prison to

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respond to these allegations via the normal briefing schedule of a permanent 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. # 22) be, and the same hereby is, DENIED.
DATED October 16, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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