Opinion
Case No. 2:97-CV-782 PGC.
June 26, 2004
ORDER
Plaintiff, Jerry W. Dickey, an inmate at the Utah State prison, filed a pro se civil rights complaint under 42 U.S.C. § 1983,see 42 U.S.C.A. § 1983 (West Supp. 2002), alleging that Defendants failed to protect him from being attacked by other inmates. Following screening under 42 U.S.C. § 1915 the Court ordered Defendants to file a Martinez report. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). Based on the Martinez report the Court awarded summary judgment to Defendants, concluding that Plaintiff failed to exhaust available administrative remedies on one incident, and was unable to show deliberate indifference with regard to his only exhausted claim.
Following denial of his motion for post-judgment relief under Rule 59(e) Plaintiff appealed the Court's summary judgment decision to the Tenth Circuit. The appeals court concluded that the award of summary judgment was improper because Defendants never filed an actual summary judgment motion and Plaintiff did not receive adequate notice that he faced summary judgment. The case has been remanded for further proceedings in accordance with the appellate mandate. Also before the Court is Plaintiff's motion for a temporary restraining order prohibiting prison officials from withholding certain legal materials confiscated from him.
Summary Judgment
In accordance with the mandate from the United States Court of Appeals for the Tenth Circuit the Court hereby vacates its summary judgment order dated February 19, 2003. Having reviewed Defendants' Martinez report de novo the Court denies Defendants' motion to dismiss Plaintiff's claims as frivolous. Any party wishing to pursue summary judgment in this case shall promptly file a clearly identified, and properly supported, motion with the Court.
Plaintiff is hereby notified that he cannot survive a motion for summary judgment merely by resting upon the allegations in his pleadings. Federal Rule of Civil Procedure 56(e) requires a nonmovant "that would bear the burden of persuasion at trial" to "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of a trial from which a rational trier of fact could find for the nonmovant."Adler v. Wal-Mart Stores, 144 F.3d 664, 671 (10th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). The specific facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Thomas v. Wichita Coca-Cola Bottling, 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and references to the pleadings will not suffice.
Motion for T.R.O./Preliminary Injunction
Plaintiff has filed motion for a temporary restraining order or preliminary injunction prohibiting prison officials from withholding or destroying certain legal materials allegedly confiscated from him. Plaintiff's motion states that upon his transfer to the Utah State Prison at Draper, Utah, his legal materials were sent to the prison contract attorneys for review. After sorting through Plaintiff's materials the contract attorneys sent them to the prison with instructions that some excess materials should be sent out of the prison at Plaintiff's expense or else be destroyed. Plaintiff states that without these materials he will be unable to litigate this case effectively.
To obtain a temporary restraining order or a preliminary injunction in federal court, the movant has the burden of establishing that:
(1) the party will suffer irreparable injury unless the injunction issues; (2) the threatened injury to the moving party outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and (4) there is a substantial likelihood that the moving party will eventually prevail on the merits.Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992).
Plaintiff's motion does not satisfy the requirements for a preliminary injunction or temporary restraining order. Plaintiff has not shown that irreparable injury will occur unless injunctive relief is granted. Not only has Plaintiff failed to describe exactly what materials were taken from him, he also has not shown that the materials are irreplaceable or that his case will suffer materially without them. At present, there are no pending motions in this case that require Plaintiff's attention.
In addition, Plaintiff's motion seeks relief from individuals who are not parties to this case. The current case involves defendants from the Salt Lake County Sheriff's office, not the Utah State Prison. If Plaintiff wishes to challenge the legal access policies at the Utah State Prison he must file a separate complaint. Therefore, Plaintiff's motion for a temporary restraining order or preliminary injunction is denied. IT IS HEREBY ORDERED THAT:
(1) the Court's order of February 19, 2003, granting summary judgment to Defendants, is vacated; and,
(2) Plaintiff's motion for a temporary restraining order or preliminary injunction is denied.