Schuett v. US Marshal Service et al

Filing 16

ORDER that 12 Motion for Temporary Restraining Order is DENIED. Signed by Judge James C. Mahan on 7/17/13. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CLIFFORD JAMES SCHUETT,

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2:13-CV-1063 JCM (GWF)

Plaintiff(s),
v.
UNITED STATES MARSHAL
SERVICE, et al.,
Defendant(s).

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ORDER
Presently before the court is pro se prisoner plaintiff Clifford James Schuett’s motion for a
temporary restraining order. (Doc. # 12).

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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 has filed the instant temporary restraining order because he alleges that his sleeping

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arrangements are dangerous. He must sleep on a bed with no safety bars and is danger of falling off

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the bed when he sleeps.

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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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the challenged policies. (See doc. # 12). However, plaintiff also filed the exact same motion seeking

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a permanent injunction. (Doc. # 13). 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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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. # 12) be, and the same hereby, is DENIED.
DATED July 17, 2013.

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UNITED STATES DISTRICT JUDGE
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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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