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Reed v. Bryant

United States District Court, W.D. Oklahoma

February 11, 2019

CHAD WILLIAM REED, Plaintiff,
v.
JASON BRYANT, et al., Defendants.

          THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION

          GARY M. PURCELL UNITED STATES MAGISTRATE JUDGE.

         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.”[1] 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.

         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.[2] Therefore, Plaintiff is having to rewrite everything by hand. Id.

         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 ...


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