United States District Court, E.D. Washington
ORDER DENYING MOTIONS FOR INJUNCTIVE RELIEF AND FOR
APPOINTMENT OF COUNSEL
ROSANNA MALOUF PETERSON United States District Judge.
THE COURT are Plaintiff's Motion for Temporary
Restraining Order and Preliminary Injunction, ECF No. 2 (41
pages), which includes an affidavit dated February 22, 2014;
a Memorandum of Law, ECF No. 3 (41 pages); a proposed Order
to Show Cause, ECF No. 4 (11 pages); a Declaration and
Memorandum, ECF No. 5 (252 pages); a List of Exhibits, ECF
No. 9 (92 pages); an Amended list of Defendants, ECF No. 10
(2 pages); a Motion for Appointment of Counsel, ECF No. 12 (5
pages); an additional Declaration in Support of the Motion
for injunctive relief, ECF No. 13 (31 pages); and an
Affidavit dated April 14, 2017, ECF No. 15 (4 pages).
a pro se prisoner at the Airway Heights Corrections
Center has filed a civil rights complaint pursuant to 42
U.S.C. § 1983 and paid the $400.00 fee to commence this
action. By separate Order, the Court has advised Plaintiff of
the deficiencies of his complaint and directed him to amend
or voluntarily dismiss within sixty (60) days.
initial Motion for injunctive relief and supporting documents
were unsigned. Plaintiff has remedied this deficiency, ECF
No. 11. As advised in the Court's prior Order, the Clerk
of Court will not be substituting, adding, or eliminating
pages as instructed by Plaintiff. If Plaintiff wishes to
amend any of the information in a document, he must submit an
amended document which will function as a complete substitute
for, and not a mere supplement to, the prior document.
date, Plaintiff's submissions have been verbose, lacking
a clear and concise statement of a claim. A Court has the
inherent authority to manage its own docket, see Link v.
Wabash Railroad Co., 370 U.S. 626, 630-31 (1962)
(recognizing that a federal court has the inherent authority
to “manage [its] own affairs so as to achieve the
orderly and expeditious disposition of cases”).
Therefore, the Court will require that Plaintiff limit each
future motion to five pages, with only one supporting
document which shall not exceed twenty pages. If Plaintiff
exceeds these limitations, without express written permission
from this Court, his documents will be stricken.
exhibits should not be submitted with a complaint. Instead,
the relevant information contained in an exhibit should be
paraphrased in the complaint. Plaintiff should keep his
exhibits to use to support or oppose a motion for summary
judgment or a motion to dismiss, or for use at trial.
FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
submitted a 41 page document titled, “Motion and
Affidavit in Support of Temporary Restraining Order &
Preliminary Injunction By State Prisoner to Enable Civil
Rights Proceeding and State Appeal Completion.” ECF No.
2. By this Motion, Plaintiff seeks to enjoin any impediment
to his pursuit of a claim in the state courts that his
appellate counsel, in violation of the Sixth Amendment,
committed fraud which will allegedly require the recall of
the mandate and the reinstatement of his direct
criminal appeal. Apart from his conclusory assertions,
Plaintiff does not specify on what basis he is entitled to a
new appeal, or that a motion to recall the mandate has or
would been granted.
Federal Rule of Civil Procedure 65, a TRO may be issued
without notice to the adverse party or its counsel only if:
“(A) specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse
party can be heard in opposition; and (B) the movant's
attorney 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).
the restrictions imposed under Rule 65 are stringent, they
“reflect the fact that our entire jurisprudence runs
counter to the notion of court action taken before reasonable
notice and an opportunity to be heard has been granted both
sides of a dispute.” See Granny Goose Foods, Inc.
v. Brotherhood of Teamsters & Auto Truck Drivers,
415 U.S. 423, 438-439 (1974). Accordingly, there are
“very few circumstances justifying the issuance of an
ex parte TRO.” Reno Air Racing Ass'n Inc. v.
McCord, 452 F.3d 1126, 1131 (9th Cir.2006) (courts have
recognized a “very narrow band of cases in which ex
parte orders are proper”). For example, notice may be
excused where it “is impossible either because the
identity of the adverse party is unknown or because a known
party cannot be located in time for a hearing.”
Id. Or, notice may not be required where providing
“notice to the defendant would render fruitless the
further prosecution of the action” because the adverse
party is likely to destroy evidence. Id.
a temporary restraining order is generally restricted to its
underlying purpose of preserving the status quo and
preventing irreparable harm just so long as is necessary to
hold a hearing, and no longer. Brown Jordan Int'l,
Inc. v. Mind's Eye Interiors, Inc., 236 F.Supp.2d
1152 (D. Haw. 2002).
record before the Court does not warrant a TRO. By separate
Order the Court has determined that Plaintiff failed to state
a timely claim that he has been denied access to the court,
or a plausible and timely claim of retaliation against
identified Defendants. Plaintiff has failed to make an
adequate showing, supported by admissible evidence, of
immediate irreparable harm. See Fed.R.Civ.P. 65(b).
Furthermore, because Plaintiff seeks to alter rather than
preserve the status quo, a TRO is an inappropriate remedy.
Therefore the Motion for a Temporary Restraining Order will
a preliminary injunction is an extraordinary remedy never
awarded as of right. Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 24 (2008). The Supreme Court
stated that “[a] plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public
interest.” Id., at 20; American Trucking
Associations v. City of Los Angeles, 559 F.3d 1046, 1052
(9th Cir. 2009). Plaintiff has not made this showing.
under the Prison Litigation Reform Act (“PLRA”),
in cases brought by prisoners involving conditions of
confinement, any preliminary injunction “must be
narrowly drawn, extend no further than necessary to correct
the harm the court finds requires preliminary relief, and be
the least intrusive means necessary to correct the
harm.” 18 U.S.C. § 3626(a)(2). Pierce v.
County of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008)
(“The PLRA both limits the prospective relief a court
may order in [civil actions challenging prison conditions],
and authorizes the termination of relief that does not fall