Bacon v. Reyes

Filing 29

ORDER Denying 27 Motion for Temporary Restraining Order. Signed by Judge James C. Mahan on 11/8/2012. (Copies have been distributed pursuant to the NEF - SLR)

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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).

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ORDER

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Presently before the court is plaintiff, appearing pro se, Percy Lavae Bacon’s motion for a

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temporary restraining order. (Doc. # 27). This is the third temporary restraining order filed by this

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plaintiff in this case.

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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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James C. Mahan
U.S. District Judge

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

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Plaintiff cites “the deprivation of toilet paper” as the basis of this temporary restraining order.

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(Doc. # 27, at 1). The Southern Desert Correctional Center provides prisoners with one free roll of

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toilet paper per week. (See id. at 2). A prisoner may purchase additional rolls at the prison. (See

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id. at 3-4). Plaintiff alleges cruel and unusual punishment against the prison and prison officials for

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not providing more than one roll of toilet paper per week. (See id. at 4).

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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. Temporary restraining orders are mechanism for the court to deal with real, immediate, and

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

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that there is not a high enough likelihood of success on the merits to grant 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 toilet paper policies. (See doc. # 27). However, plaintiff also filed the exact same motion seeking

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a permanent injunction. (Doc. # 28). The court finds it appropriate to permit the prison to respond

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to these allegations via the normal briefing schedule of a permanent injunction.

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James C. Mahan
U.S. District Judge

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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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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. # 27) be, and the same hereby is, DENIED.
DATED November 8, 2012.

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

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