Chavez v. Judd et al

Filing 27

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DENYING 13 MOTION for Order to Cease and Deseast. IT IS ORDERED that Plaintiff Peter T. Chavez's Motion to Cease and Desist is DENIED without prejudice. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PETER T. CHAVEZ,
Plaintiff,
vs.

No. CV 18-00020 MV/JHR

WARDEN BETTY JUDD, ALL OF
HER SECURITY AND MEDICAL STAFF
AS “PERSONS” WHO ARE LIABLE FOR
THEIR ACTIONS,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING
MOTION TO CEASE AND DESIST
THIS MATTER is before the Court on the Plaintiff, Peter T. Chavez’s Motion to Cease
and Desist (Doc. 13). The Court construes Plaintiff’s Motion as a request for a temporary
restraining order and denies Plaintiff’s Motion, without prejudice, on the grounds that Plaintiff
has failed to make the showing required by Fed. R. Civ. P. 65(b) for issuance of a temporary
restraining order.
Plaintiff Peter T. Chavez is a prisoner incarcerated at the Northwestern New Mexico
Correctional Facility. He is proceeding pro se and in forma pauperis.

Plaintiff filed his

Prisoner’s Civil Rights Complaint pursuant to 42 U.S.C. § 1983 on January 8, 2018. (Doc. 1).
Plaintiff’s Complaint asserts claims against Warden Betty Judd and “all of her Security and
Medical Staff as ‘persons’ who are liable for their actions.” (Doc. 1 at 1). He alleges due
process and Eighth Amendment cruel and unusual punishment claims for the alleged wrongful
death of another inmate. (Doc. 1 at 1-3).
On March 23, 2018, Plaintiff filed his Motion to Cease and Desist. (Doc. 13). In his
Motion, Plaintiff relates an incident occurring on March 21, 2018, where he claims that “about
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2:00 pm thru 3:00 pm I was called out of my unit to be interrigated by (3) personal from Core
Civic non-other then to provoke me into getting violant with them.” (Doc. 13 at 1). The Motion
argues that “[t]he courts need to seriously take action because Core Civic is causing to much
stress on inmates as the inmates themselves are ready to take action.” (Doc. 13 at 4). The only
relief requested in the Motion is “that the courts order this motion on my behalf.” (Doc. 13 at 4).
The Motion contains no signature.
The Motion does not clearly specify the relief requested by Plaintiff. However, based on
the title “Cease and Desist,” the Court construes the Motion as a request for a temporary
restraining order (“TRO”). See Wilson v. Bruce, 816 F. Supp. 679, 680 (D. Kan. 1993)
(prisoner’s motion for a temporary restraining order to cease and desist unreasonable time limits
on library usage). Rule 65(b) of the Federal Rules of Civil Procedure addresses the requirements
for a TRO. Rule 65(b) provides:
“A temporary restraining order may be granted without written or oral notice
to the adverse party or that party’s attorney only if (1) it clearly appears from
specific facts shown by affidavit or by the verified complaint that immediate
and irreparable injury, loss, or damage will result to the applicant before the
adverse party or that party’s attorney can be heard in opposition, and (2) the
applicant’s attorney certifies to the court in writing the efforts, if any, which
have been made to give the notice and the reasons supporting the claim that
notice should not be required.”
The Tenth Circuit has adopted four elements for the Court to consider in deciding whether to
grant a TRO under Rule 65(b). Those four elements are: (1) a showing that the movant will
suffer immediate and irreparable injury unless the injunction issues; (2) proof that the threatened
injury to the movant outweighs whatever damage the proposed injunction may cause the
opposing party; (3) a substantial likelihood that the movant will eventually prevail on the merits:
and (4) a showing that the injunction, if issued, would not be adverse to the public interest.
Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980).
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Plaintiff is proceeding pro se in this matter and the Court must liberally construe his
filings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the Court may not assume
the role of advocate for the pro se party and need not accept unsupported conclusory allegations.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A TRO is an extraordinary remedy and,
therefore, a movant’s right to relief must be clear and unequivocal. Kansas Health Care Ass’n,
Inc. v. Kansas Dep’t of Social & Rehabilitation Servs., 31 F.3d 1536, 1543 (10th Cir. 1994).
For issuance of a TRO, Rule 65 requires a factual showing of both immediate and
irreparable injury, loss, or damage made by way of an affidavit or verified complaint.
Fed.R.Civ.P. 65(b)(1)(A). Plaintiff’s current request for a TRO is not sworn or even signed, and
is not supported by an affidavit or verified complaint as required by Rule 65(b)(1)(A). Although
Plaintiff’s motion contains conclusory allegations of “extremely inhumane” punishment (Doc. 13
at 4), it contains no real factual support for any danger of immediate injury to Plaintiff. Absent a
clear and unequivocal factual showing that Plaintiff will suffer immediate and irreparable injury,
Plaintiff’s motion is insufficient to support issuance of a TRO by the Court. Lundgrin, 619 F.2d
at 63; Kansas Health Care Ass’n, 31 F.3d at 1543. Because Plaintiff has not made the threshold
factual showing of immediate and irreparable harm, the Court will not reach the remaining Rule
65(b) elements and will deny Plaintiff’s motion without prejudice to any future request for a
TRO or injunctive relief made on a proper factual showing.
IT IS ORDERED that Plaintiff Peter T. Chavez’s Motion to Cease and Desist is DENIED
without prejudice.

________________________________
UNITED STATES DISTRICT JUDGE

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