United States District Court, W.D. Oklahoma
THIRD SUPPLEMENTAL REPORT AND RECOMMENDATION
M. PURCELL UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.”).
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 ...