Blair v. Nebraska Parole Board

Full title: STEVEN R. BLAIR, Plaintiff, v. NEBRASKA PAROLE BOARD, et al., Defendants

Court: United States District Court, D. Nebraska

Date published: Nov 29, 2005

8:05cv31 (D. Neb. Nov. 29, 2005)

Opinion

8:05cv31.

November 29, 2005

MEMORANDUM AND ORDER

JOSEPH BATAILLON, Chief Judge

This matter is before the court on filing no. 46, the Motion for a Temporary Restraining Order ("TRO") filed by the plaintiff, Steven R. Blair, a prisoner in the custody of the Nebraska Department of Correctional Services ("DCS"). By December 15, 2005, the defendants shall file a response to filing no. 46.

In the Eighth Circuit, a court must balance four factors (the "Dataphase factors") when determining whether to issue a TRO or preliminary injunction. The Dataphase factors are:

1. the threat of irreparable harm to the movant;

2. the balance between the harm to the movant and any injury that temporary injunctive relief would inflict on the nonmoving party should the injunction issue;

3. the likelihood of success on the merits; and

4. the public interest.

See, e.g., Randolph v. Rodgers, 170 F.3d 850, 857 (8^th Cir. 1999); Goff v. Harper, 60 F.3d 518, 520 (8^th Cir. 1995);Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d 109 (8^th Cir. 1981) ( en banc). The burden of proving that preliminary injunctive relief should be granted "rests entirely with the movant." Goff v. Harper, 60 F.3d at 520. "[F]or an injunction to issue `a right must be violated' and . . . `the court must determine' whether `a cognizable danger of future violation exists and that danger must be more than a mere possibility.'" Id. at 521 (citation omitted).

THEREFORE, IT IS ORDERED:

1. That by December 15, 2005, the defendants shall respond to the plaintiff's Motion for a TRO (filing no. 46); and

3. That by December 30, 2005, unless a timely motion for extension of time is granted, the plaintiff shall reply to the defendants' response.