Bell v. Voight et al

Filing 68

ORDER denying 65 Motion to Allow Contact with the FBI; denying 67 Motion for TRO. Signed by US Magistrate Judge Veronica L. Duffy on 7/6/2015. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SHANE DOUGLAS BELL,

4:14-CV-04111-LLP

Plaintiff,
vs.
WILLIAM VOIGHT, CORRECTIONS
OFFICER AT SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; JEREMY
WENDLING, CORRECTIONS OFFICER
SGT. AT SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; SAMUEL YOST,
CORRECTIONS OFFICER, CPL. AT
SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; JESSICA COOK,
UNIT MANAGER AT SOUTH DAKOTA
STATE PENITENTIARY, INDIVIDUAL
AND OFFICIAL CAPACITY; JOHN DOE
#1, CORRECTIONS OFFICER AT
SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; DARIN YOUNG,
WARDEN AT SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY; AND JOHN DOE
#2, CORRECTIONS OFFICER AT
SOUTH DAKOTA STATE
PENITENTIARY, INDIVIDUAL AND
OFFICIAL CAPACITY;

ORDER ON PLAINTIFF’S MOTIONS:
MOTION FOR TEMPORARY
RESTRAINING ORDER (DOC. 67)
AND
MOTION FOR ORDER ALLOWING
CONTACT WITH THE FBI (DOC. 65)

Defendants.

INTRODUCTION
Plaintiff, Shane D. Bell (“Bell”) filed a pro se lawsuit pursuant to 42
U.S.C. § 1983. Bell alleges the defendants have violated his Constitutional
rights in various ways. In Count I, he alleges the defendants violated the

Eighth Amendment prohibition against cruel and unusual punishment.
Specifically, Bell alleges he was assaulted by a fellow inmate and that, although
he eventually had surgery for his injuries, the defendants ignored his serious
medical need for eight days before he received treatment.
In Count II, Bell alleges another violation of the Eighth Amendment
prohibition against cruel and unusual punishment. Specifically, he alleges the
defendants retaliated against him when they subjected him to chain restraints
while in the infirmary and did not allow him to use the toilet for long periods of
time, causing him pain and sometimes causing him to soil himself. He also
alleges the defendants took and read his legal journal. Defendants have filed a
motion for summary judgment on the issue of qualified immunity. See Docket
No. 44. The court entered an order staying all discovery until that motion is
determined. See Docket No. 40. This order addresses two other motions filed
by Mr. Bell.
PENDING MOTIONS
A.

Motion for Temporary Restraining Order (Doc. 67)
Previously, Mr. Bell filed a motion for a preliminary injunction which the

court denied. The court likewise denies Mr. Bell’s motion for a temporary
restraining order (“TRO”).
Rule 65 of the Federal Rules of Civil Procedure governs the issuance of
preliminary injunctive relief and temporary restraining orders. That rule
provides in pertinent part as follows:

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(a) Preliminary Injunction
(1) Notice. The court may issue a preliminary injunction only
on notice to the adverse party.
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(b) Temporary Restraining Order
(1) Issuing Without Notice. The court may issue a temporary
restraining order without written or oral notice to the adverse party
or its attorney only if:
(A) 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
(B) the movant’s attorney certifies in writing any efforts
made to give notice and the reasons why it should not be required.
See FED. R. CIV. P. 65. TROs are limited to a maximum of 14 days’ duration.
Id. at (b)(2). A party moving for a TRO must give monetary security in an
amount sufficient to pay the costs and damages to any party later found to
have been wrongfully enjoined or restrained. Id. at (c).
In order to obtain preliminary injunctive relief, Mr. Bell is required to
show (1) a likelihood of success on the merits, (2) that he will suffer irreparable
harm in the absence of preliminary injunctive relief, (3) that the balance of
equities tips in his favor, and (4) an injunction is in the public interest. Winter
v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Applying
Rule 65 and the Winter factors, it is clear that Mr. Bell has not shown an
entitlement to either form of preliminary relief.
First, Mr. Bell has not shown that he will be irreparably injured absent
the issuance of a TRO. The court will decide the merits of Mr. Bell’s complaint
as outlined in defendants’ motion for summary judgment. Mr. Bell fails to
allege how or why that procedure is insufficient to protect him from irreparable
harm—how the harm to him will be different or greater if relief is not accorded
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now as opposed to later. The second reason Mr. Bell’s motion fails is that he
has not posted monetary security as required by Rule 65. Accordingly, the
court denies Mr. Bell’s motion for a TRO.
B.

Motion to Allow Unmonitored Letters to the FBI
Mr. Bell moves the court for an order requiring prison officials to allow

him to write letters to the Federal Bureau of Investigations without prison
officials opening the letters first to see what is contained in the envelope. See
Docket No. 65. Mr. Bell alleges he wishes to contact the FBI to ask them to
investigate alleged abuses at the prison.
Mr. Bell encloses a copy of prison regulations indicating that letters to
law enforcement, including presumably the FBI, are not considered by the
prison to be “privileged” mail. Because his letters to the FBI are not
“privileged,” Mr. Bell suggests that the letters will be opened and the
information in them disseminated by the letter openers.
Prison officials have good reasons for limiting the definition of privileged
mail. Chief among these reasons are preventing contraband from entering the
prison and preventing situations from developing that may pose a threat to
security within the prison. The court will not enter an order contrary to prison
regulations based on the meagre showing by Mr. Bell in support of this motion.

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CONCLUSION
For the reasons more fully explained above, it is hereby
ORDERED that plaintiff Shane Bell’s Motion for a TRO [Docket No. 67]
and his Motion for an Order as to FBI correspondence [Docket No. 65] are all
denied.
DATED July 6, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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