Litschewski v. Kaemingk et al

Filing 38

ORDER denying 34 Motion for TRO; denying 34 Motion for Preliminary Injunction. Signed by U.S. District Judge Roberto A. Lange on 7/21/17. (DJP)

UNITED STATES DISTRICT COURT

filed
JUL 21 2017

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

RICHARD VIRGIL LITSCHEWSKI,

4:I6-CV-04I40-RAL

Plaintiff,
ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER

AND PRELIMINARY INJUNCTION

DENNIS

KAEMINGK,

Secretary

of

Corrections; ROBERT DOOLEY, Warden;
JENNIFER STANWICK-KLEMIK, Deputy
Warden,
Defendants.

Last year. Plaintiff Richard Virgil Litschewski filed a Complaint in this case, together
with a request for a temporary restraining order and preliminary injunction. Doc. I. On
November 10, 2016, this Court entered an Order Dismissing Complaint in Part and Directing

Service. Doc. II. In that Order, among other things, this Court denied Litschewski's request for

a temporary restraining order or preliminary injunction. Doc. 11 at 13-14. That Order screened
the complaint, dismissed certain claims, allowed other claims to continue, and directed service.
Doc. 11. The Court is awaiting responses presently to its Scheduling Request. Doc. 30.

On July 20, 2017, Litschewski filed a Motion for Temporary Restraining Order, Doc. 34,
and Memorandum of Law, Doc. 35, in support thereof. Litschewski seeks to have this Court

grant a temporary restraining order(TRO)and preliminary injunction to enjoin the Mike Durfee
State Prison firom implementing a policy change set to oceur on July 24, 2017, stating "all
materials previously accessed in the law library are available on your tablets. The only exception
is the SD Jurors instructions. Inmates who need access to the SD Jurors instructions can send a

kite to the education department to request a time to review this material." Doc. 35-1. The
policy also provides to inmates information on computer availability, how to request computer
time, and printing. Doc. 35-1.

Litschewski characterizes this aetion as closing the law library and denying access to a

law library to inmates. Litsehewski's eomplaint does not frame this partieular issue, but the
Court will address the issue for purposes of this Order only. Otherwise, Litschewski to raise this
issue will need to seek leave to amend his eomplaint.

Rule 65(b) of the Federal Rules of Civil Procedure governs issuance of TROs:
The eourt 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 eomplaint
elearly 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.

Fed. R. Civ. P. 65(b). Rule 65 also addresses preliminary injunetion issuanee. "A preliminary

injunetion is an extraordinary remedy . .. ." Roudaehevski v. Ail-American Care Centers. Inc..
648 F.3d 701, 705 (8th Cir. 2011); see also Hughbanks v. Doolev. 788 F. Supp. 2d 988, 992

(D.S.D. 2011)("[In the prison setting, a request for a preliminary injunction 'must always be
viewed with great caution because judicial restraint is especially called for in dealing with the

eomplex and intraetable problems of prison administration.'" (quoting Goff v. Haroer. 60 F.3d
518, 520 (8th Cir. 1995))). "The burden of proving that a preliminary injunetion should be
issued rests entirely with the movant." Goff. 60 F.3d at 520. To determine whether the issuance

of a preliminary injunction is appropriate, the Court considers the following factors:
(1)the threat ofirreparable harm to the movant;

(2) the state of balanee between this harm and the injury that granting the injunction will
inflict on other parties litigant;
(3)the probability that movant will sueeeed on the merits; and
(4)the public interest.
Dataphase Svs.. Ine. v. C L Svs.. Inc.. 640 F.2d 109,114(8th Cir. 1981).

Litschewski did not eertify in writing his efforts to notify Defendants of the TRO filing,

although the filing of the Motion and Memorandum in the CM/ECF system would make those
available to defense counsel. There appears not to be the necessary irreparable harm for a TRO,
as the new policy makes the same law library materials available to Litsehewski through his
tablet, except for South Dakota pattern jury instruetions, whieh are available upon request. See

Doe. 35-1. Similarly, and preliminarily as the Court has limited information at this time, under

the Dataphase factors, there appears to be no threat of irreparable harm because the law library
materials are available electronically to inmates, and indeed that should provide more ready
access to inmates. With there being an absence of apparent irreparable harm to Litschewski, the

balance-of-harms factor appears to weigh for Defendants who have a plan in place announced to
inmates earlier in July regarding access to law materials by tablets and requests for computer
time. This Court doubts that Litschewski would succeed on the merits because the policy may

well give wider access to law materials by use of tablets, except for South Dakota pattern jury
instructions which need to be requested. The public interest likely weighs in favor of Defendants

because it is in the public interest to allow prisons to provide inmates access to legal resources in
a cost-effective and efficient manner.

Therefore, it is

ORDERED that the Motion for Temporary Restraining Order and Order for Preliminary
Injunction, Doc. 34, is denied.
DATED this

day of July, 2017.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE