Opinion
CIV-16-461-C
02-11-2019
CHAD WILLIAM REED, Plaintiff, v. JASON BRYANT, et al., Defendants.
THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION
Before the Court is Plaintiff's request for a temporary restraining order. Doc. No. 125. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, the undersigned recommends Plaintiff's request be denied.
I. Plaintiff's Allegations
Plaintiff is incarcerated at James Crabtree Correctional Center. The claims Plaintiff has asserted in this lawsuit are primarily related to two instances in which Plaintiff was suspended from the religious diet program through which Plaintiff received kosher meals. He also asserts claims challenging the lawfulness of the terms of the Oklahoma Department of Corrections policy upon which his suspensions were based. In his current Motion, Plaintiff sets out varying allegations against multiple individuals, both party and nonparty, and requests the Court enter a temporary restraining order enjoining those individuals from harassing and retaliating against him due to this lawsuit.
Specifically, Plaintiff contends the inmate that previously helped him with his lawsuit related documents and filings was transferred to another facility and the law library supervisor informed him that no one can help him type. Doc. No. 125 at 2. Plaintiff explains this creates difficulties because he currently has a broken finger and "can barely even write." Additionally, Plaintiff complains the law library supervisor has also stated that he can only make one copy of any document so that he can send one to defense counsel and the original to the Court, making it impossible for him to refer back to his own filed documents. Id.
The Court notes the current Motion is handwritten, eight pages in length, and quite legible. See generally Doc. No. 125.
Plaintiff states that his files in the law library have been erased, the backup disk is missing, and all of his discovery and pleadings are gone. Id. at 4. Therefore, Plaintiff is having to rewrite everything by hand. Id.
It is not clear from Plaintiff's allegations whether the "discovery and pleadings" he references as missing were saved on the computer or were hard copies.
Plaintiff also complains that he only has access to the law library one day per week and that he does not have adequate work space to work on his lawsuit. Id. at 2-3. He was utilizing a shower bucket as a chair beside his bed and using his bed as a makeshift desk. Id. at 3. However, on January 18, 2019, Sergeant Stienwand, following orders from Warden Rick Whitten, took Plaintiff's bucket from his cell. Id. Plaintiff has deduced, based on various symbols on his clothing and clothing choices, that Sgt. Stienwand is a Neo Nazi/White Supremacist. Id. at 3-4. Sgt. Stienwand also took Plaintiff's baseball hat and religious headgear, thereby interfering with Plaintiff's ability to practice his religion. Id. at 4. Sgt. Stienwand tried to break Plaintiff's glasses and, in doing so, damaged the ear pieces. Id. at 3.
Plaintiff contends that in addition to religious animus, Sgt. Stienwand's actions are also in retaliation for Plaintiff's lawsuit(s) because in June 2018, Sgt. Stienwand informed Plaintiff, "[T]he more lawsuits you file the harder were [sic] going to make on you." Id. Plaintiff alleges Sgt. Stienwand has shaken down his cell fives times since June 2018, even though Sgt. Stienwand does not work in Plaintiff's unit. Id. at 5.
In his Motion, Plaintiff also complains about an incident that occurred in June 2018 in which Defendant Kelly Curry engineered a situation to make it appear Plaintiff negotiated special treatment for all inmates eating kosher diets and delaying by five minutes the meals of all other inmates. Id. at 5-6. Plaintiff contends Defendant Curry did this in order to provoke an attack on Plaintiff. Id. at 6. Plaintiff states that currently, Defendant Curry laughs at him with other guards and glares at him during meals. Id. at 6-7.
By this Motion, Plaintiff requests the Court give "them" a verbal warning at the very least to leave Plaintiff alone and stop harassing and retaliating against him. Id. He also indicates the guards are trying to make him a security risk in order to transfer him to a different facility and he does not want to be transferred. Id. at 6.
II. Legal Standard
Although styled as a request for a temporary restraining order ("TRO"), Plaintiff's request is properly viewed as seeking a preliminary injunction under Federal Rule of Civil Procedure 65(a) rather than a TRO under Federal Rule of Civil Procedure 65(b). Rule 65(b) generally contemplates that a TRO would be issued only for a short term and "without written or oral notice to the adverse party or its attorney." See Fed. R. Civ. P. 65(b)(1). Because Defendants here had notice of Plaintiff's request, the Court should treat the request for a TRO as superseded by the alternative request for a preliminary injunction. See, e.g., Kan. Hosp. Ass'n v. Whiteman, 835 F. Supp. 1548, 1551 (D. Kan. 1993); TLX Acquisition Corp. v. Telex Corp., 679 F. Supp. 1022, 1028 (W.D. Okla. 1987); see also 11A Wright et al., supra, § 2951 (3d ed. 2013).
A preliminary injunction grants intermediate relief of the same character as that which may be finally granted. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 220 (1945). The Court may not enter a preliminary injunction when the movant seeks intermediate relief beyond the claims of the complaint. See Stouffer v. Eulberg, No. CIV-09-320-C, 2010 WL 567998, at *1, *2 n.3 (W.D. Okla. Feb.11, 2010) (citing Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) ( "[A] preliminary injunction may never issue to prevent an injury or harm which not even the moving party contends was caused by the wrong claimed in the underlying action.")). Thus, "the movant must establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) (quotations omitted); see also Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir. 1975) ("[T]he movant [must] establish his right to such relief . . . by clear proof that he will probably prevail when the merits are tried, so to this extent there is a relation between temporary and permanent relief.").
To obtain a preliminary injunction, the movant must show: (1) a substantial likelihood of success on the merits; (2) irreparable harm to the movant if the preliminary injunction is denied; (3) the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) the preliminary injunction, if issued, will not adversely affect the public interest. Gen. Motors Corp. v. Urban Gorilla, L.L.C., 500 F.3d 1222, 1226 (10th Cir. 2007). Notably, "courts have consistently noted that because a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered." Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (alteration and quotations omitted).
To meet the "irreparable harm" requirement, the plaintiff must establish that an injury is both imminent and not theoretical. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003). Such an injury must be beyond "merely serious or substantial" and, generally, one for which an adequate monetary remedy is unavailable. See id.; Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001).
III. Analysis
With regard to Plaintiff's access to the law library and inmate assistance in preparing his legal filings, his allegations relate most closely to a First Amendment claim based on interference with his right of access to the courts. However, Plaintiff's underlying claims in this lawsuit are not related to this First Amendment right. As noted, the Court may not enter a preliminary injunction seeking intermediate relief beyond the claims of the complaint. Little, 607 F.3d at 1251; Stouffer, 2010 WL 567998, at *1, *2 n.3.
Additionally, in Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court recognized that inmates have a well-established constitutional right of access to the courts and that States must affirmatively assure that inmates are provided "meaningful access to the courts." Id. at 820-21, 24. The Court further recognized its decision "does not foreclose alternative means to achieve that goal," which may be fulfilled by providing prisoners "with adequate law libraries or adequate assistance from persons trained in the law" to ensure prisoners have "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Id. at 825, 828, 830. Because there is no "abstract, freestanding right to a law library or legal assistance," an inmate alleging a denial of his right of access to the courts must show actual injury and "an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense." Lewis v. Casey, 518 U.S. 343, 351 (1996). Hence, the inmate must show that deficiencies in the law library or legal assistance program actually "hindered his efforts to pursue a legal claim" in order to establish a violation of his constitutional right of access to the courts. Id. Plaintiff's motion provides no facts from which to infer that he is being denied his constitutional right of access to the courts under the prevailing standard established in Bounds and Casey based on limited access to the law library or lack of inmate assistance. Thus, had Plaintiff asserted this underlying claim, he has not established a likelihood that he would prevail on the merits, as required for injunctive relief. Gen. Motors Corp., 500 F.3d at 1226.
Plaintiff also asserts several allegations regarding the actions of Sgt. Stienwand. Sgt. Stienwand is not a party to this lawsuit. For preliminary injunctive relief to be binding against a non-party, the movant must show that the nonparty is "in active concert or participation with" a party or a party's "officers, agents, servants, employees," or "attorneys." See Fed. R. Civ. P. 65(d)(2) ("Every order granting an injunction and every restraining order . . . is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise."); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969). Plaintiff makes such an assertion only in a single, wholly conclusory statement that Sgt. Stienwand was acting on the orders of Warden Whitten. This is insufficient to sustain a request for injunctive relief against a nonparty. See Chichakli v. Samuels, No. CIV-15-687-D, 2017 WL 9988969, at *2 n.5 (W.D. Okla. Feb. 24, 2017) (denying injunctive relief against non-parties explaining that the plaintiff "seeks injunctive relief against the warden or other BOP staff at FMC-Devens, non-parties to this action, but alleges conspiratorial conduct in [the] most conclusory fashion.").
In their Motion for Summary Judgment, Defendants note that Jason Bryant is no longer Warden of JCCC. They state that because Plaintiff's remaining claims against Defendant Bryant are in his official capacity only, Rick Whitten, the current JCCC Warden should be substituted as a party to this action under Fed. R. Civ. P. 25. Doc. No. 115 at 7 n.1. --------
Finally, Plaintiff's allegations regarding Defendant Curry do not indicate he may suffer irreparable harm without injunctive relief. Although he contends that in order to instigate an attack upon him, she engineered a situation in which other inmates would blame him for a five-minute delay in receiving their meals, he admits this occurred on one occasion over seven months ago in June 2018. Doc. No. 125 at 5-6. Under the Eighth Amendment, prison officials must "tak[e] reasonable measures to guarantee the inmates' safety." Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998) (quotations omitted). However, an alleged event occurring seven months ago does not indicate Plaintiff is in danger of irreparable injury or harm and thus, is not sufficient to support injunctive relief. Heideman, 348 F.3d at 1189. Although Plaintiff's allegations could indicate a possibility of harm, Plaintiff "must present facts to show that such harm is imminent and not simply theoretical-which he does not do." Folsom v. Knutson, No. CIV-13-632-D, 2014 WL 4467714, at *4 (W.D. Okla. Sept. 10, 2014) (citing Heideman, 348 F.3d at 1189).
Plaintiff's only remaining allegation regarding Defendant Curry is that she laughs and glares at him during meal time. Applying the most liberal interpretation to Plaintiff's allegations and presuming such conduct is truly intended to threaten or intimidate Plaintiff, laughing and/or glaring at him does not rise to the level of an Eighth amendment violation. See Alvarez v. Gonzalez, 155 F. App'x 393, 396 (10th Cir. 2005) ("Mere verbal threats or harassment do not rise to the level of a constitutional violation unless they create 'terror of instant and unexpected death.'" (quoting Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992)); McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001) ("[A]cts or omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts do not violate the Eighth Amendment."); McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (verbal threats and name calling are usually not actionable under § 1983); Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979) (holding that a sheriff's idle threat to hang a prisoner did not give rise to a § 1983 claim); Watts v. Zarvaras, No. 09-cv-00980-BNB, 2009 WL 2900287, at *1 (D. Colo. Sept. 9, 2009) ("Acts or omissions resulting in an inmate being subjected to nothing more than threats and verbal taunts do not violate the Eighth Amendment."). Nor do such allegations indicate the possibility of imminent harm. See Folsom, supra.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's request for injunctive relief (Doc. No. 125) be DENIED. Plaintiff is advised of the right to file an objection to this Third Supplemental Report and Recommendation with the Clerk of this Court by March 4th , 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Third Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Third Supplemental Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.
Dated this 11th day of February, 2019.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE