Torres v. Marcantel et al
ORDER by District Judge Kenneth J. Gonzales denying 13 Motion for Temporary Restraining Order. (tah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GREGG MARCANTEL, Secretary of
Corrections, DWAYNE SANTISTEVAN,
S.T.I.U. Administrator, MAJOR RALPH
LUCERO, C.N.M.C.F. Unit Manager,
TAMARA KING, C.N.M.C.F.
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
This matter is before the Court on Plaintiff Laybe Torres’s Motion For Temporary
Restraining Order, filed on February 7, 2017. [Doc. 13] Plaintiff is incarcerated, appears pro se,
and is proceeding in forma pauperis. For the reasons explained below, Plaintiff’s motion will be
In his motion for temporary restraining order Plaintiff alleges, in relevant part, that when
he arrived at Central New Mexico Correctional Facility (CNMCF) on April 21, 2016 to begin
serving a thirty-month sentence for drunk driving, he was improperly classified as a member of the
prison gang Syndicato Nuevo Mexico (SNM). [Doc. 13 at 6] As a result of this improper
classification, Plaintiff immediately was placed in solitary confinement and, afterward, housed in a
“special housing unit (SHU), Level IV custody status . . . [which] is strictly a unit for validated
S.N.M. prison gang members.” [Doc. 13 at 6-7] Plaintiff alleges that because he “is forced to
live or languish with violent prison gang members,” he is exposed to “substantial risk of serious
harm, such as assaults or even death.” [Doc. 13 at 9] Plaintiff asks this Court to “issue an
injunction order demanding that prison officials remove Plaintiff’s name from the suspected
security threat group list and to order prison officials to stop locking Plaintiff in solitary
confinement with validated S.N.M. prison gang members.” [Doc. 13 at 11] Plaintiff further asks
the Court to order Defendants “to remove the Plaintiff from his current housing condition and
release the Plaintiff into General population lower custody status.” [Doc. 13 at 11]
Federal Rule of Civil Procedure 65(b)(1) provides that:
The court may issue a temporary restraining order without written or
oral notice to the adverse party or its attorney only if . . . specific
facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition; and . . .
the movant’s attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1).
There is no indication in the record that Plaintiff has provided
Defendants with written or oral notice of his motion for a temporary restraining order and Plaintiff
has failed to provide the Court with an affidavit or verified complaint supporting his factual
allegations. Because Plaintiff has failed to comply with Rule 65(b)(1), his motion for temporary
restraining order may be denied summarily. See Bradenburg v. Beaman, 632 F.2d 120, 122 (10th
Cir. 1980) (“It is incumbent on litigants, even those proceeding pro se, to follow the federal rules
Nonetheless, the Court will address the merits of Plaintiff’s motion.
To obtain a
temporary restraining order under Rule 65(b), “the moving party must demonstrate four factors:
(1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable
harm in the absence of preliminary relief; (3) that the balance of the equities tips in the movants
favor; and (4) that the injunction is in the public interest.” RoDa Drilling Co. v. Siegal, 552 F.3d
1203, 1208 (10th Cir. 2009). The United States Court of Appeals for the Tenth Circuit has stated
that “courts should be especially cautious when granting an injunction that requires the nonmoving
party to take affirmative action—a mandatory preliminary injunction—before a trial on the
merits,” because “the primary goal of a preliminary injunction is to preserve the pre-trial status
quo.” Id. Since such preliminary injunctive relief is “traditionally disfavored,” the moving party
“seeking such an injunction [must] make a heightened showing of the four factors.” Id. at 1209.
Plaintiff is proceeding pro se and, therefore, the Court must construe his filings liberally
and hold them “to a less stringent standard.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, it is not “the proper function of the district court to assume the role of advocate
for the pro se litigant.” Id. Furthermore, pro se status “does not relieve the plaintiff of the
burden of alleging sufficient facts on which a recognized legal claim could be based.” Id.
Likelihood of Success
In Sparks v. Foster, 241 F. App’x 467 (10th Cir. 2007) (unpublished), the United States
Court of Appeals for the Tenth Circuit considered whether the improper classification of the
plaintiff as a prison gang member in a Security Threat Group (STG) violated the plaintiff’s rights
under the due process clause of the Fourteenth Amendment. The Court noted that “[c]hanging a
prisoner’s classification generally does not deprive him of liberty under the due process clause
alone,” because a prisoner does not have a liberty interest in his or her classification. Id. at 471.
The Court held that, since “[c]lassification decisions are within the discretion of the Department of
Corrections,” the plaintiff did “not have a liberty interest in a particular classification, be it a gang
member or within an STG, [and] he [could not] maintain an action based on the classification
under the Fourteenth Amendment.” Id.; see also Templeman v. Gunter, 16 F.3d 367, 369 (10th
Cir. 1994) (“Changing an inmate’s prison classification ordinarily does not deprive him of liberty,
because he is not entitled to a particular degree of liberty in prison.”). On the basis of the
foregoing, the Court concludes that Plaintiff is unlikely to succeed on the merits of his Fourteenth
Amendment due process claim.
Plaintiff’s motion for temporary restraining order also alleges that the conditions of his
confinement violate his right to be free from cruel and unusual punishment under the Eighth
Amendment. [Doc. 13 at 10] “The Constitution . . . does not mandate comfortable prisons . . .
and only those deprivations denying the minimal civilized measures of life’s necessities . . . are
sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Seiter, 501
U.S. 294, 298 (10th Cir. 1991) (internal quotation marks and citation omitted.) The minimal
civilized measures of life’s necessities include “adequate food, clothing, shelter, sanitation, and
medical care, and reasonable safety from serious bodily harm.” Tafoya v. Salazar, 516 F.3d 912,
916 (10th Cir. 2008). “To prevail on a ‘conditions of confinement’ claim under the Eighth
Amendment, an inmate must establish that (1) the condition complained of is sufficiently serious
to implicate constitutional protection, and (2) prison officials acted with deliberate indifference to
inmate health and safety.” DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001) (internal
quotation marks and citation omitted).
Plaintiff fails to allege, with any particularity, that he has been deprived of the minimal
civilized measures of life’s necessities. Although Plaintiff alleges, in a conclusory fashion, that
he is exposed to a risk of serious harm because he is housed with “violent validated SNM prison
gang members,” [Doc. 13 at 10], he fails to identify any specific and credible threats to his health
or safety. See Riddle v. Mondragon, 83 F.3d 1197, 1205 (10th Cir. 199) (holding that a plaintiff
raising a failure-to-protect claim under the Eighth Amendment must “furnish more than a
conclusory claim of being afraid and aggravated”); Hall, 935 F.3d at 1110 (“[C]onclusory
allegations without supporting factual averments are insufficient to state a claim on which relief
can be based.”). Additionally, Plaintiff fails to allege that Defendants acted with deliberate
indifference because they were aware of, and disregarded, specific and credible threats to his
health or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that “a prison official
cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official know of and disregards an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference”). Therefore, the Court concludes
that Plaintiff is unlikely to succeed on the merits of his Eighth Amendment claim.
“To constitute irreparable harm, an injury must be certain, great, actual and not
theoretical.” Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (internal
quotation marks and citation omitted). “Irreparable harm is not harm that is merely serious or
substantial,” rather it is harm of “such imminence that there is a clear and present need for
equitable relief.” Id. (internal quotation marks and citation omitted; emphasis in original). For
the reasons discussed above, Plaintiff’s alleged harm of serious injury from other inmates is
speculative and “purely speculative harm does not amount to irreparable injury.” Greater
Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1259 (10th Cir. 2003).
Balance of the Equities and Public Interest
The balance of the equities and the public interest also do not support the issuance of a
temporary restraining order. The Prison Litigation Reform Act provides, in relevant part, that:
In any civil action with respect to prison conditions, to the extent
otherwise authorized by law, the court may enter a temporary
restraining order or an order for preliminary injunctive relief.
Preliminary injunctive relief must be narrowly drawn, extend no
further than necessary to correct the harm the court finds requires
preliminary relief, and be the least intrusive means necessary to
correct that harm. The court shall give substantial weight to any
adverse impact on public safety or the operation of the criminal
justice system caused by the preliminary relief and shall respect the
principles of comity set out in paragraph (1)(B) in tailoring any
preliminary relief. Preliminary injunctive relief shall automatically
expire on the date that is 90 days after its entry, unless the court
makes the findings required under subsection (a)(1) for the entry of
prospective relief and makes the order final before the expiration of
the 90-day period.
18 U.S.C. § 3626(a)(2). As the United States Supreme Court has recognized, “courts are ill
equipped to deal with the increasingly urgent problems of prison administration and reform.”
Turner v. Safley, 482 U.S. 78, 84 (1987). Indeed, “[r]unning a prison is an inordinately difficult
task that requires expertise, planning, and the commitment of resources, all of which are peculiarly
within the province of the legislative and executive branches of government..” Id. at 84-85.
Therefore, “separation of powers concerns counsel a policy of judicial restraint.” Id. at 85; see
Meachum v. Fano, 427 U.S. 215, 228-29 (1976) (holding that the federal courts should not become
involved in “the day-to-day function of state prisons”). Neither the balance of the equities nor the
public interest would be served by the issuance of a temporary restraining order that involves the
Court in the day-to-day management of prison life.
For the foregoing reasons, the Court concludes that Plaintiff has failed to demonstrate that
he is entitled to a temporary restraining order under Fed. R. Civ. P. 65(b)(1)(A). Therefore,
Plaintiff’s Motion For Temporary Restraining Order will be denied.
IT IS THEREFORE ORDERED that Plaintiff’s Motion For Temporary Restraining Order
[Doc. 13] is DENIED.
UNITED STATES DISTRICT JUDGE
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