Bell v. Becker-Green et al

Filing 70

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Benjamin H. Settle re 58 Objections to Report and Recommendation filed by Rey Davis Bell. **4 PAGE(S), PRINT ALL**(Rey Bell, Prisoner ID: 854487)(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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REY DAVIS BELL,

CASE NO. C17-5319 BHS-TLF
Plaintiff,

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v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

JODY BECKER-GREEN,

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Defendant.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable Theresa L. Fricke, United States Magistrate Judge (Dkt. 53), and

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Plaintiff’s objections to the R&R (Dkt. #58).

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The factual background of this case is set out in detail in the R&R. See Dkt. 53 at

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1–2. On May 24, 2017, Plaintiff filed his complaint and simultaneously requested an

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emergency temporary restraining order. Dkts. 8–11. On July 25, 2017, Defendants

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responded. Dkt. 25. On August 3, 2017, Plaintiff replied. Dkt. 28.

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On October 11, 2017, Judge Fricke issued the R&R. Dkt. 53. The R&R

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recommends that the Court deny Plaintiff’s motion for a temporary restraining order. Id.

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However, the R&R makes this recommendation subject to a determination by the Court

ORDER - 1

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whether a hearing on the motion with or without an expedited trial on the merits is

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warranted. Dkt. 53 at 9. On October 20, 2017, Plaintiff objected to the R&R. Dkt. 58

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The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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Plaintiff objects to the R&R to the extent that it concludes that the alleged

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violation of his first amendment rights does not constitute irreparable harm. Dkt. 58 at 2;

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see also Dkt. 53 at 4. To support his position, Plaintiff argues that a possible

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constitutional deprivation of a constitutional right constitutes irreparable harm for

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purposes of a preliminary injunction. Dkt. 58 at 1 (citing Jolly v. Coughlin, 76 F.3d 468,

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482 (2d Cir. 1996) (“[I]t is the alleged violation of a constitutional right that triggers a

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finding of irreparable harm.”)).

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While plaintiff is correct that a showing of a substantial likelihood of a

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constitutional violation generally constitutes irreparable harm, “a preliminary injunction

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is an extraordinary and drastic remedy, one that should not be granted unless the movant,

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by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S.

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968, 972 (1997) (emphasis in original; quotation omitted). This suggests that, when a

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plaintiff seeking a preliminary injunction order makes an argument that relies on the

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alleged constitutional deprivation itself to show irreparable injury, the likelihood of

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success element of the applicable standard must establish by a clear showing that the

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Plaintiff is suffering or will imminently suffer a constitutional deprivation.

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In this case, the Court is not convinced that Plaintiff has, at this stage, made a clear

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showing that Defendants are violating his constitutional rights. Accordingly, while the

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R&R has correctly assessed that Plaintiff has shown some likelihood of success on the

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merits, see Dkt. 53 at 5–9, that likelihood of success and the extent of his alleged right to

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use a religious name is not at this stage so clearly shown and defined as to warrant

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preliminary injunctive relief. This is particularly so where the requested injunctive relief

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would upend, rather than preserve, the status quo in the administration of identification

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procedures at the prison where Plaintiff is committed. Accordingly, the Court adopts the

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R&R, denies Plaintiff’s motion for a temporary restraining order and preliminary

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injunction and remands to Judge Fricke for further proceedings including determinations

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on the pending discovery motions and a recommendation on Plaintiff’s pending motions

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to appoint counsel and for summary judgment.

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Additionally, the Court notes that the parties have filed a stipulated motion to

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continue the pending motion for summary judgment in light of their discussions to

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resolve Plaintiff’s claims out of court. By adopting the R&R and remanding for further

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proceedings, the Court has not rendered any opinion nor taken any steps that will alter the

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parties’ respective bargaining positions. While the Court declines the suggestion that it

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could order a hearing on the motion for preliminary injunction and consolidate that

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hearing with a trial on the merits, it should be observed that a summary judgment motion

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has already been filed and such a motion, if not resolved in settlement discussions, may

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be considered by Judge Fricke in connection with an evidentiary hearing if she deems it

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appropriate or necessary. See 28 U.S.C. 636(b)(1)(B). Accordingly, the parties’

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respective positions and the procedural standing of the case remains unchanged for all

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practical purposes.

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The Court having considered the R&R, Plaintiff’s objections, and the remaining
record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED;

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(2)

Plaintiff’s motion is DENIED; and

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(2)

This action is REMANDED to the Honorable Theresa L. Fricke, United

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States Magistrate Judge, for further proceedings.
Dated this 18th day of December, 2017.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 4