Opinion
Case No. CIV-17-1224-D
08-28-2018
WADE LAY, Plaintiff, v. OKLAHOMA DEPARMENT OF CORRECTIONS, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff filed a Complaint [Doc. No. 1], a motion to proceed in forma pauperis [Doc. No. 2], and a motion for injunctive relief [Doc. No. 3] on November 13, 2017. United States District Court Judge Timothy D. DeGiusti referred the matter for proposed findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B) and (C). After being ordered (more than once) to cure deficiencies in his motion to proceed in forma pauperis, Plaintiff filed an Amended Complaint [Doc. No. 8] and numerous other motions [Doc. Nos. 11, 12, 13, 17, 21, 25, 26]. Eventually, the Court denied Plaintiff's cured request to proceed in forma pauperis. [Doc. Nos. 18, 27]. He appealed, and the Tenth Circuit denied relief on August 22, 2018. [Doc. No. 38].
Plaintiff has not yet paid his $400.00 filings fee, and as addressed below, it is recommended that he be required to do so or risk dismissal of his action without prejudice. Until the filing fee is paid, his Amended Complaint remains only conditionally filed. See LCvR 3.3(d).
At issue here are Plaintiff's numerous requests for injunctive relief and/or requests for protective orders. See [Doc. Nos. 3, 11, 17, 26]. Because Plaintiff did not give the named defendants any notice, the Court construes each motion as seeking a temporary restraining order (TRO). See Fed. R. Civ. P. 65(b). Notably, without a "properly-filed complaint," the Court is generally powerless to grant injunctive relief. See Powell v. Rios, 241 F. App'x 500, 505 n.4 (10th Cir. 2007). However, the Court need not decide whether Plaintiff's conditionally-filed Amended Complaint constitutes a "properly-filed complaint" because his requests for injunctive relief may be denied on other grounds.
I. Plaintiff's Underlying Claims
With liberal construction, Plaintiff's Amended Complaint alleges prison officials confiscated his legal papers, engaged in a retaliatory disciplinary conviction, and denied Plaintiff access to his attorney. See Amend. Compl. at 1-11. Plaintiff also alleges that during the disciplinary proceedings, an officer physically assaulted him. See id. at 13.
Page references to court filings are to the CM/ECF page number. --------
II. Requirements for a TRO
Federal Rule of Civil Procedure 65(b) provides that a court may issue a temporary restraining order without notice to the opposing party when it clearly appears that "immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard" and the movant "certifies in writing any efforts made to give notice and the reasons why it should not be required." Fed. R. Civ. P. 65(b)(1). Because of the extraordinary nature of a TRO, it may only be granted when these procedural safeguards are "scrupulously honored." 11A C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure 2d § 2952.
Further, the movant must establish: (1) he is "substantially likely to succeed on the merits;" (2) he "will suffer irreparable injury if the injunction is denied;" (3) the threatened injury to him "outweighs the injury" to the party opposing the injunction; and (4) "the injunction would not be adverse to the public interest." New Mexico Dep't of Game & Fish v. United States Dep't of the Interior, 854 F.3d 1236, 1245-46 (10th Cir. 2017) (citations omitted) (discussing the requirements for a preliminary injunction); see also Wiechmann v. Ritter, 44 F. App'x 346, 347 (10th Cir. 2002) (noting that the requirements for a TRO and preliminary injunction are the same). Regarding irreparable harm, the movant "'must demonstrate a significant risk that he or she will experience harm that cannot be compensated after the fact by money damages.'" First W. Capital Mgmt. Co. v. Malamed, 874 F.3d 1136, 1141 (10th Cir. 2017). Finally, an injunction is characterized as "mandatory" if it affirmatively requires the nonmovant to act in a particular manner. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). Such a request is generally disfavored and requires a "'heightened showing of the four factors.'" Id. (citation and internal brackets omitted).
III. Analysis
For the reasons set forth below, the Court should deny Plaintiff's construed motions for TRO [Doc. Nos. 3, 11, 17, 26].
A. Plaintiff's Failure to Satisfy the Procedural Safeguards of Fed. R. Civ. P. 65(b)(1)
Plaintiff filed four different TRO motions but failed, at any time, to explain how "immediate and irreparable injury, loss, or damage" would result if the injunctions did not issue before the named defendants could be heard. Fed. R. Civ. P. 65(d)(1). Likewise, he did not certify "in writing any efforts made to give notice and the reasons why it should not be required." Id. Even though Plaintiff is proceeding pro se, the Court may deny his motion on this procedural ground. See Lemmons v. Houston, No. CIV-13-494-D, 2013 WL 3974170, at *1 (W.D. Okla. July 31, 2013) (unpublished district court order) (adopting magistrate judge's recommendation that pro se plaintiff did not satisfy the requirements for a TRO because he had failed to strictly comply with Rule 65(b)(1)'s requirements); Torres v. Marcantel, No. 16-CV-01352-KG-LF, 2017 WL 4534870, at *1 (D. N.M. Feb. 16, 2017) (unpublished district court order) (denying a pro se plaintiff's request for TRO because he "failed to comply with Rule 65(b)(1)").
B. Plaintiff's Failure to Otherwise Qualify for a TRO
The Court may alternatively deny Plaintiff's construed TRO motions for failure to satisfy the relevant standards.
1. Doc. No. 3
In his first motion for injunctive relief, Doc. No. 3, Plaintiff seeks to have his disciplinary conviction overturned and all his legal and personal property returned. See id. at 1-2, 8-9. This request should be denied.
Plaintiff's legal materials relate to his Pittsburg County state-court case, which has already been dismissed. See Doc. No. 3 at 3 (describing the seizure of his Pittsburg County case materials); Amend. Compl. at 9 (stating his Pittsburg County case was dismissed). Further, Plaintiff explains that his sister replaced all his personal property. See Amend. Compl. at 11 (describing how his sister spent time and money to "replace" the lost property). Finally, Plaintiff does not explain how monetary damages would not be an adequate compensation for a retaliatory disciplinary conviction. Under these circumstances, Plaintiff cannot show, particularly at a heighted level, that he will suffer irreparable injury without a TRO. See Center v. Lampert, 726 F. App'x 672, 675-76 (10th Cir. 2018) (upholding the district court's finding that plaintiff failed to show irreparable injury absent the return of his legal property); see also West v. Johnson, No. 4:17CV3064, 2017 WL 3394582, at *4 (D. Neb. Aug. 7, 2017) (unpublished district court order) ("It is well-established that monetary damages are available under § 1983 for the denial of . . . due process rights during prison disciplinary hearings. Accordingly, monetary damages, rather than injunctive relief, is the proper remedy for such an injury."); Oakley v. Zavaras, No. CIVA 09CV-01991-BNB, 2010 WL 114221, at *2 (D. Colo. Jan. 11, 2010) (unpublished district court order) ("nothing Mr. Oakley asserts indicates that he will suffer irreparable injury unless the Court enters a preliminary injunction directing Defendants to . . . expunge the disciplinary conviction prior to the Court reviewing the merits of this claim").
2. Doc. No. 11
In his next motion for TRO, Doc. No. 11, Plaintiff requests an order preventing prison officials from "utilizing the pretense of a misconduct report . . . ." Id. at 1. The Court construes this language as seeking an order to prevent officials from fabricating disciplinary charges. However, this request is based on a theoretical harm, which is insufficient to warrant injunctive relief under the irreparable harm standard. See Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) ("To constitute irreparable harm, an injury must be certain, great, actual 'and not theoretical.'" (citation omitted)). And, even if Plaintiff were to receive a disciplinary conviction, he has failed to show that monetary relief would be insufficient to compensate for the harm. See supra at 4. Consequently, the Court should deny injunctive relief based on Plaintiff's concern that the named defendants might retaliate against him with a misconduct charge. See Vega v. Wiley, 259 F. App'x 104, 105-106 (10th Cir. 2007) (affirming the denial of plaintiff's request for injunctive relief, including a request that officials not retaliate against him, for failing to identify an actual existing harm).
3. Doc. No. 17
In his third motion for TRO, Plaintiff seeks an injunction ordering prison officials to provide the "necessary information" to support his motion to proceed in forma pauperis. Doc. No. 17. This motion is moot. Plaintiff provided all the necessary paperwork, and the Court denied his in forma pauperis application. See supra at 1.
4. Doc. No. 26
In his final motion for injunction, Doc. No. 26, Plaintiff repeats his underlying allegations against the named defendants but does not seek any specific relief. See id., passim. Accordingly, the Court should deny his motion for TRO. See Lay v. Okla. Dep't of Corr., No. CIV-13-481-RAW-SPS, 2016 WL 4995308, at *6 (E.D. Okla. Sept. 19, 2016) (unpublished district court order) (denying Mr. Lay's request for injunctive relief, holding: "Plaintiff's request for injunctive relief is vague and non-specific. He has failed to indicate what specific injunctive relief he is seeking, apart from adherence to state and federal laws, and what such relief could remedy. He is not entitled to the broad injunctive relief he has requested.").
RECOMMENDATION
For the foregoing reasons, the Court should DENY Plaintiff's construed motions for TRO, [Doc. Nos. 3, 11, 17, 26]. In addition, the Court should instruct Plaintiff that if he does not pay the $400 filing fee in full within twenty-one days of an order adopting this Report and Recommendation, his action will be dismissed, without prejudice to refiling, pursuant to LCvR 3.3(e).
NOTICE OF RIGHT TO OBJECT
Plaintiff is advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by September 18, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation does not terminate the District Judge's referral in this matter.
ENTERED this 28th day of August, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE