Opinion
No. CIV-03-33-S-BLW, CR-01-167-S-BWL
February 27, 2003
ORDER
Plaintiff Melissa Matthews has applied for a Temporary Restraining Order (Docket No. 3). After reviewing the motion, the Court finds that the Motion for Temporary Restraining Order should be granted.
BACKGROUND
Ms. Matthews was sentenced by the Court on October 16, 2002, to eight months imprisonment to be served at the community confinement center ("CCC"), Port of Hope in Nampa, Idaho. However, the Bureau of Prisons ("POP") recently changed its policy and no longer interprets community confinement as "imprisonment." All prisoners currently assigned to a CCC who have more than 150 days remaining to serve are being relocated to more restrictive facilities.
Ms. Matthews received notification of her proposed transfer approximately thirty days in advance. She challenged the policy through the BOP administrative remedy process, but despite the pending appeal, she received notification that BOP was reassigning her to the Federal Correctional Institute — Geiger at Spokane, Washington on January 24, 2003. On January 23, Ms. Matthews filed a complaint and petition for writ of habeas corpus and now seeks a temporary restraining order and preliminary injunction to prevent her reassignment.
GOVERNING LEGAL STANDARDS
Ms. Matthews is entitled to a temporary restraining order if she demonstrates that she is likely to succeed on the merits and may suffer irreparable injury, or that serious questions exist on the merits and the balance of hardships tips in her favor. See Self-Realization Fellowship Church v. Ananda, 59 F.3d 902, 913 (9th Cir. 1995). The two tests are not separate but represent a sliding scale in which the required probability of success on the merits decreases as the degree of harm increases. Id. "Under any formulation of the test, the plaintiff must demonstrate that there exists a significant threat of irreparable injury," Oakland Tribune, Inc. v. Chronicle Publishing Co., 762 F.2d 1374, 1376 (9th Cir. 1985).
DISCUSSION
The Court's preliminary review of the issues in the case convinces it that Ms. Matthews raises serious questions about the Bureau of Prisons' change in policy. Ms. Matthews' presents strong arguments that the Bureau of Prisons may have exceeded its rule-making capacities by creating a retroactive rule without providing public notice and affording no opportunity to comment in violation of the Administrative Procedure Act. The BOP's change in policy may further violate Ms. Matthews' Due Process and Equal Protection rights and the Ex Post Facto Clause.
The Court also finds based upon its preliminary review of the motion, that Ms. Matthews would suffer irreparable harm and that the balance of hardships clearly tips in her favor. Ms. Matthews currently benefits from the work release program and is employed full-time as a hostess and cashier at the Owyhee Plaza hotel in Boise, Idaho. Should Ms. Matthews be reassigned to FCI-Geiger, she would lose her job and forfeit the wages that currently help support her minor children now under her family's care. Furthermore, transfer to FCI-Geiger would effectively remove her visitation privileges. The FCI-Geiger's visitation policy is far more restrictive, and the distance to Spokane, Washington is so far that Ms. Matthews' mother and children would be unable to visit. While Ms. Matthews would be irreparably harmed, the BOP would suffer little or no harm should she remain at Port of Hope.
In conclusion, the Court finds, based on its preliminary review of the record, that Ms. Matthews has raised serious questions as to the Bureau of Prisons' policy of reassignment. The Court also finds that the balance of hardships tip decidedly in Ms. Matthews' favor and that she faces a substantial risk of irreparable harm should she be reassigned. The Court will therefore grant Ms. Matthews' Motion for a Temporary Restraining Order pursuant to Fed R. Civ. P. 65 as set out below, The temporary restraining order shall remain in effect until a hearing can be held on Ms. Matthews' Motion for Preliminmy Injunction, but not beyond the ten-day period mandated by Fed.R.Civ.P. 65(b). A separate Notice of Hearing will be issued, setting forth the time and date of to hearing on the Motion for Preliminary Injunction.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Plaintiff's Motion for Temparary Restraining Order (Docket No. 5) is hereby GRANTED. Defendants are temporarily enjoined from reassigning Meilssa Matthews from the Port of Hope in Nampa, Idaho.
IT IS FURTHER ORDERED that this Temporary Restraining Order shall expire within ten (10) days from entry, unless extended pursuant to Fed.R.Civ.P. 65(b).