Opinion
No. 4:18CV48-GHD-DAS
08-14-2018
DEMARIO DONTEZ WALKER PLAINTIFF v. MARSHALL TURNER, ET AL. DEFENDANTS
ORDER DISMISSING AS MOOT PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION
This matter comes before the court on the plaintiff's motion for a temporary restraining order or, in the alternative, for a preliminary injunction. The plaintiff is a former inmate with the Mississippi Department of Corrections who was paroled on June 18, 2018. The plaintiff seeks an order from the court enjoining the defendant Marshall Turner (Superintendent of the Mississippi State Penitentiary) from retaliating against him by having inmates assault him, having subordinates issue false Rule Violation Reports against him, targeting his cell for shakedowns, and various other ways. For the reasons set forth below, the instant motion will be dismissed as moot.
Preliminary Injunctions
Both temporary restraining orders and preliminary injunctions are governed by Fed. R. Civ. P. 65. Though the same criteria govern the issuance of preliminary injunctions and temporary restraining orders, the purpose and form of relief differ for each. The purpose of a preliminary injunction is to preserve the status quo during the course of litigation until the court can hold a trial on the matter. Steven S. Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 65, Practice Commentary; Univ. of Tex. V. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). When adjudicating a preliminary injunction, the court must provide notice to all parties and give them a chance to be heard. Fed. R. Civ. P. 65(a)(1). Once issued, a preliminary injunction stays in effect until the court grants final relief or otherwise modifies the order. Steven S. Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 65, Practice Commentary. Once the court issues final relief, the preliminary injunction dissolves, as the court need no longer rely on its equitable powers to provide interim relief. 11A, Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 2947 (3d ed.); U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9 Cir. 2010). A ruling on a preliminary injunction is immediately appealable:
[T]he courts of appeals shall have jurisdiction over appeals from . . . [i]nterlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing, or dissolving injunctions, or refusing to dissolve or modify injunctions . . . .28 U.S.C.A. § 1292(a)(1).
Temporary Restraining Orders
Similarly, the purpose of a temporary restraining order is to preserve the status quo and prevent irreparable harm, but only until the court can hold an adversarial hearing for a preliminary injunction. Fed. R. Civ. P. 65(b)(3), Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, 415 U.S. 423, 438-439, 94 S.Ct. 1113 (1974). Thus, a temporary restraining order may be granted ex parte, but it only lasts for 14 days (28 days if the court permits, with a showing of good cause). Fed. R. Civ. P. 65(b)(2). Ex parte temporary restraining orders are disfavored, and courts seldom grant them. Steven S. Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 65, Practice Commentary. Once the court rules on a motion for preliminary injunction, then the temporary restraining order has served its purpose and should be dissolved. Granny Goose, 415 U.S. at 443. Neither party may appeal a district court's ruling on a temporary restraining order, as it has an extremely limited duration. Chicago United Industries, Ltd. V. City of Chicago, 445 F.3d 940, 943 (7 Cir. 2006). However, once the district court rules on a motion for preliminary injunction regarding the issue, the parties may appeal that order. Northeast Ohio Coalition for Homeless Service Employees Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1005 (6 Cir. 2006).
Elements of Temporary Restraining Order or Preliminary Injunctive Relief
A party must prove four elements to be entitled to preliminary injunctive relief or a temporary restraining order: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the injunction is not issued; (3) that the threatened injury to the movant outweighs any harm that may result from the injunction to the non-movant; and (4) that the injunction will not disserve the public interest. DSC Communications Corp. v. DGI Technologies, Inc., 81 F.3d 597, 600 (5 Cir. 1996); Rodriguez v. United States, 66 F.3d 95, 97 (5 Cir. 1995), cert. denied, 116 S. Ct. 1058, 134 L. Ed. 2d 202 (1996); Cherokee Pump & Equipment, Inc. v. Aurora Pump, 38 F.3d 246, 249 (5 Cir. 1994); Doe v. Duncanville Independent School District, 994 F.2d 160, 163 (5 Cir. 1993); Plains Cotton Co-op Association v. Goodpasture Computer Serv., Inc., 807 F.2d 1256, 1259 (5 Cir.), cert. denied, 484 U.S. 821, 108 S. Ct. 80, 98 L. Ed. 2d 42 (1987); Canal Authority of Florida v. Callaway, 489 F.2d 567, 572 (5 Cir. 1974).
Preliminary injunctions and temporary restraining orders are extraordinary remedies, Cherokee Pump, 38 F.3d at 249, "not to be granted routinely, but only when the movant, by a clear showing, carries [the] burden of persuasion." Black Fire Fighters Association v. City of Dallas, 905 F.2d 63, 65 (5 Cir. 1990) (quoting Holland American Insurance Co. v. Succession of Roy, 777 F.2d 992, 997 (5 Cir. 1985)); Cherokee Pump, 38 F.3d at 249 (quoting Mississippi Power & Light v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5 Cir. 1985)) ("The decision to grant a preliminary injunction is to be treated as the exception rather than the rule"). Under Fed. R. Civ. P. 65, the party seeking a preliminary injunction or temporary restraining order must give security in an amount the court deems proper (which can be zero in some circumstances).
Analysis
In this case, the plaintiff was released on parole on June 18, 2018 (ten days after filing the instant motion); as such, his claim for injunctive relief regarding his stay at the Mississippi State Penitentiary must be dismissed as moot:
A plaintiff seeking injunctive relief "must satisfy the court that relief is needed." United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). To meet this standard, a plaintiff must demonstrate "that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive." Id. at 633.Paige v. Sauseda, No. 5:10-CV-00054-BG, 2011 WL 8184443, at *9 (N.D. Tex. July 7, 2011), report and recommendation adopted, No. 5:10-CV-00054-C, 2012 WL 2512010 (N.D. Tex. June 29, 2012). In the present case, the plaintiff's release on parole removed him from the influence of defendant Marshall Turner, the Superintendent of the Mississippi State Penitentiary in Parchman. In the present situation:
[t]he transfer of a prisoner out of an institution often will render his claims for injunctive relief moot. [The plaintiff], however, argues that his alleged constitutional violations are capable of repetition yet evading review.Oliver v. Scott, 276 F.3d 736, 741 (5 Cir. 2002) (internal citations, quotations, and footnotes omitted). Mr. Walker has not shown a demonstrated probability or reasonable expectation that he would return to the Mississippi State Penitentiary (and thus back within the sphere of influence of Mr. Turner); as such, the instant motion for a temporary restraining order or preliminary injunction is DISMISSED as moot.
[A plaintiff] must show either a demonstrated probability or a reasonable expectation that he would be transferred back to [the prison where the incidents occurred] or released and reincarcerated there.
SO ORDERED, this, the 14 day of August, 2018.
/s/_________
SENIOR UNITED STATES DISTRICT JUDGE