Pemberton v. Patton et al

Filing 79

OPINION AND ORDER by District Judge James H. Payne : Denying 71 plaintiff's Motion for Preliminary Injunction pending the outcome of his appeal. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
PAUL PEMBERTON,
Plaintiff,
v.
ROBERT PATTON, et al.,
Defendants.

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No. CIV 14-511-JHP-SPS

OPINION AND ORDER
On September 3, 2015, the Court dismissed Plaintiff’s civil rights complaint as
frivolous (Dkt. 56). On September 28, 2015, he filed a motion to alter or amend the
Judgment (Dkt. 58) and a notice of appeal (Dkt. 59). In a detailed Opinion and Order entered
on November 2, 2015, the Court denied the Rule 59(e) motion (Dkt. 68). Plaintiff has
returned to this Court a third time, now requesting a preliminary injunction pending the
outcome of his appeal (Dkt. 71).
Plaintiff is asking the Court to enter the following three orders: (1) an order for the
Department of Corrections (DOC) to cease following OP-030115(IV)(D)(5), which sets forth
the procedures for photocopying services for documents sent to a court; (2) an order for DOC
officials to follow DOC grievance procedures and to add information to rejected grievances
to help inmates know specifically what they must correct to properly exhaust their remedies;
and (3) an order requiring DOC to allow more legal materials and more time with legal
materials. (Dkt. 71 at 8-11).
Ordinarily, a party seeking a preliminary injunction must satisfy a fourfactor test in order to be awarded such temporary relief. The requesting party
must demonstrate (1) that it has a substantial likelihood of prevailing on the
merits; (2) that it will suffer irreparable harm unless the preliminary injunction
is issued; (3) that the threatened injury outweighs the harm the preliminary
injunction might cause the opposing party; and (4) that the preliminary
injunction if issued will not adversely affect the public interest. See Federal
Lands Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir.
1999). . . .

Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001).
Preliminary injunctive relief is “an extraordinary and drastic remedy” that courts
should deny “unless the movant, by a clear showing, carries the burden of persuasion.”
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original). “The purpose of
a preliminary injunction is merely to preserve the relative positions of the parties until a trial
on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).
The movant’s burden is even heavier when the requested relief is disfavored. O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.
2004). The Tenth Circuit recognizes three types of specifically disfavored preliminary
injunctions: “(1) preliminary injunctions that alter the status quo, (2) mandatory preliminary
injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could
recover at the conclusion of a full trial on the merits.” Schrier v. Univ. of Colo. 427 F.3d
1235, 1258-59 (10th Cir. 2005).
The Court finds Plaintiff clearly is requesting a disfavored injunction, because it
would be a mandatory injunction that would alter the status quo. Therefore, the proposed
injunction would not meet the purpose of preserving the relative positions of the parties. The
proposed injunction also is related to issues that were considered and rejected by the Court
in Plaintiff’s civil rights complaint and his Rule 59(e) motion. Consequently, the Court finds
there is not a substantial likelihood of Plaintiff’s prevailing on the merits.
The Court further finds Plaintiff has failed to demonstrate he will suffer irreparable
harm if a preliminary injunction is not issued, or that the threatened injury outweighs the
harm a preliminary injunction might cause the Department of Corrections. In addition, such
an injunction would be contrary to the public interest in the efficient functioning of state
institutions.
ACCORDINGLY, Plaintiff’s motion for a preliminary injunction pending the
outcome of his appeal (Dkt. 71) is DENIED.

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IT IS SO ORDERED this 30th day of September 2016.

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