United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable
Theresa L. Fricke, United States Magistrate Judge (Dkt. 53),
and Plaintiff's objections to the R&R (Dkt. #58).
factual background of this case is set out in detail in the
R&R. See Dkt. 53 at 1-2. On May 24, 2017,
Plaintiff filed his complaint and simultaneously requested an
emergency temporary restraining order. Dkts. 8-11. On July
25, 2017, Defendants responded. Dkt. 25. On August 3, 2017,
Plaintiff replied. Dkt. 28.
October 11, 2017, Judge Fricke issued the R&R. Dkt. 53.
The R&R recommends that the Court deny Plaintiff's
motion for a temporary restraining order. Id.
However, the R&R makes this recommendation subject to a
determination by the Court whether a hearing on the motion
with or without an expedited trial on the merits is
warranted. Dkt. 53 at 9. On October 20, 2017, Plaintiff
objected to the R&R. Dkt. 58 The district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions. Fed.R.Civ.P.
objects to the R&R to the extent that it concludes that
the alleged violation of his first amendment rights does not
constitute irreparable harm. Dkt. 58 at 2; see also
Dkt. 53 at 4. To support his position, Plaintiff argues that
a possible constitutional deprivation of a constitutional
right constitutes irreparable harm for purposes of a
preliminary injunction. Dkt. 58 at 1 (citing Jolly v.
Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“[I]t
is the alleged violation of a constitutional right that
triggers a finding of irreparable harm.”)).
plaintiff is correct that a showing of a substantial
likelihood of a constitutional violation generally
constitutes irreparable harm, “a preliminary injunction
is an extraordinary and drastic remedy, one that should not
be granted unless the movant, by a clear showing,
carries the burden of persuasion.” Mazurek v.
Armstrong, 520 U.S. 968, 972 (1997) (emphasis in
original; quotation omitted). This suggests that, when a
plaintiff seeking a preliminary injunction order makes an
argument that relies on the alleged constitutional
deprivation itself to show irreparable injury, the likelihood
of success element of the applicable standard must establish
by a clear showing that the Plaintiff is suffering or will
imminently suffer a constitutional deprivation.
case, the Court is not convinced that Plaintiff has, at this
stage, made a clear showing that Defendants are violating his
constitutional rights. Accordingly, while the R&R has
correctly assessed that Plaintiff has shown some likelihood
of success on the merits, see Dkt. 53 at 5-9, that
likelihood of success and the extent of his alleged right to
use a religious name is not at this stage so clearly shown
and defined as to warrant preliminary injunctive relief. This
is particularly so where the requested injunctive relief
would upend, rather than preserve, the status quo in the
administration of identification procedures at the prison
where Plaintiff is committed. Accordingly, the Court adopts
the R&R, denies Plaintiff's motion for a temporary
restraining order and preliminary injunction and remands to
Judge Fricke for further proceedings including determinations
on the pending discovery motions and a recommendation on
Plaintiff's pending motions to appoint counsel and for
the Court notes that the parties have filed a stipulated
motion to continue the pending motion for summary judgment in
light of their discussions to resolve Plaintiff's claims
out of court. By adopting the R&R and remanding for
further proceedings, the Court has not rendered any opinion
nor taken any steps that will alter the parties'
respective bargaining positions. While the Court declines the
suggestion that it could order a hearing on the motion for
preliminary injunction and consolidate that hearing with a
trial on the merits, it should be observed that a summary
judgment motion has already been filed and such a motion, if
not resolved in settlement discussions, may be considered by
Judge Fricke in connection with an evidentiary hearing if she
deems it appropriate or necessary. See 28 U.S.C.
636(b)(1)(B). Accordingly, the parties' respective
positions and the procedural standing of the case remains
unchanged for all practical purposes.
Court having considered the R&R, Plaintiff's
objections, and the remaining record, does hereby find and
order as follows:
R&R is ADOPTED;
Plaintiff's motion is DENIED; and
This action is REMANDED to the Honorable
Theresa L. Fricke, United States Magistrate ...