Brakeall v. Kaemingk et al
ORDER denying 27 Motion for TRO; denying 27 Motion for Preliminary Injunction. Signed by U.S. District Judge Karen E. Schreier on 10/17/2016. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WINSTON GREY BRAKEALL,
DERRICK BIEBER, TIM MEIROSE,
LANA JACKSON, WILLIAM ALLEN,
UNKNOWN DEPARTMENT OF
ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
Plaintiff, Winston Grey Brakeall, is an inmate at the South Dakota State
Penitentiary (SDSP) in Sioux Falls. He filed a pro se civil rights lawsuit under
42 U.S.C. ' 1983. Docket 1. The court screened this complaint and dismissed
the majority of the claims. Docket 16. Brakeall moved to amend his complaint,
Docket 24, and the court has not yet screened his amended complaint under
28 U.S.C. § 1915A. Brakeall now moves the court to grant him a temporary
restraining order and preliminary injunction. Docket 27.
The four factors the court considers in determining whether to grant
preliminary injunctive relief are: “ ‘(1) the threat of irreparable harm to the
movant; (2) the state of balance between this harm and the injury that
granting the injunction will inflict on other parties litigant; (3) the probability
that movant will succeed on the merits; and (4) the public interest.’ ” Barrett v.
Claycomb, 705 F.3d 315, 320 (8th Cir. 2013) (quoting Dataphase Sys., Inc. v.
C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981)). Since Dataphase, the Eighth
Circuit Court of Appeals has “observed that the ‘likelihood of success on the
merits is most significant.’ ” Id. (quoting S.J.W. ex rel. Wilson v. Lee's Summit
R-7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012)).
Brakeall cannot show that he is likely to succeed on the merits. Most of
the claims in his original complaint were dismissed by this court after
screening under § 1915A. Docket 16. His amended complaint has not been
screened. Defendants have not been served and will not be served unless
Brakeall properly raises claims in his amended complaint.
Brakeall’s motion for a temporary restraining order and preliminary
injunction concerns his claim that his Fifth Amendment rights were violated
when he was incarcerated because of the results of a polygraph exam he was
given while on parole. Docket 28. The court dismissed this claim after
screening Brakeall’s original complaint. Docket 16 at 31-32. Brakeall bases
his argument on United States v. Von Behren, 822 F.3d 1139 (10th Cir. 2016),
a Tenth Circuit case that may be persuasive but is not binding on this court.
The issue of whether defendants violated Brakeall’s Fifth Amendment rights
will be determined during § 1915A screening. At this point, Brakeall cannot
show he is likely to succeed on the merits.
Thus, it is
ORDERED that Brakeall’s motion for temporary restraining order and
preliminary injunction (Docket 27) is denied.
Dated October 17, 2016.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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