Pierce v. Thomas

Filing 7

ORDER: Petitioner's motion for temporary restraining order and preliminary injunction 3 is DENIED. IT IS FURTHER ORDERED that petitioners motion for appointment of counsel 4 is DENIED, with leave to renew after respondent is served a nd files his responsive brief. Petitioner shall pay the requisite filing fee within 30 days of the date of this order. Failure to do so shall result in the dismissal of this proceeding. IT IS SO ORDERED. Signed on 10/24/2011 by Judge Garr M. King. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
CLAUDE PIERCE,

03:11-cv-1250-KI
Petitioner,

ORDER

v.
J.E. THOMAS,
Respondent.
KING, Judge
Petitioner, an inmate at FCI Sheridan, brings this habeas
corpus proceeding pursuant to 28 U.S.C. § 2241. Petitioner alleges
that a correctional official issued an incident report in violation
of

petitioner's

due

process

and

first

amendment

rights.

A

disciplinary hearing concerning the incident has yet to occur.
Currently before the court is petitioner's motion for temporary
restraining order and preliminary injunction.
A litigant seeking a preliminary injunction must demonstrate
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that

1 -- ORDER

the balance of equities tips in his favor, and that an injunction
is in the public interest.

Winter v. Natural Res. Def. Council,

Inc., 555 U.S. 7, 20-21 (2008).

Petitioner fails to satisfy the

foregoing standard because he has (1) yet to be subjected to a
disciplinary hearing and, therefore, has failed to exhaust his
administrative remedies; (2) failed to demonstrate that exhaustion
of

administrative

remedies

would

be

futile;

(3)

failed

to

demonstrate a likelihood of success on the merits on his procedural
and substantive due process claims; and (4) failed to demonstrate
a likelihood of success on the merits of his retaliation claim.
See

Martinez

v.

Roberts,

804

F.2d

570,

571

(9th

Cir.

1986)(exhaustion); Superintendent v. Hill, 472 U.S. 445, 454-55
(1985) (substantive due process); Wolff v. McDonnell, 418 U.S. 539,
563-67 (1974) (procedural due process); Silva v. Di Vittorio, 2011
WL 4436248 *10 (9th Cir. Sept. 26, 2011) (retaliation).

For all of

these reasons, his motion for TRO/Preliminary Injunction (#3) is
DENIED.
CONCLUSION
Petitioner's

motion

for

temporary

preliminary injunction (#3) is DENIED.

restraining

order

and

IT IS FURTHER ORDERED that

petitioner’s motion for appointment of counsel (#4) is DENIED, with
leave to renew after respondent is served and files his responsive
brief.

Petitioner shall pay the requisite filing fee within 30

2 -- ORDER

days of the date of this order.

Failure to do so shall result in

the dismissal of this proceeding.1
IT IS SO ORDERED.
DATED this

24th

day of October, 2011.
/s/ Garr M. King
Garr M. King
United States District Judge

1

Petitioner has yet to pay the requisite $5.00 filing fee,
but has submitted a declaration providing that he requested
prison officials to withdraw the fee from his trust account and
forward it to the court. I addresses the propriety of injunctive
relief in this order. However, petitioner must pay the filing
fee before this court will order the petition to be served upon
respondent.

3 -- ORDER