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Smith v. Kirkegard

United States District Court, D. Montana, Helena Division

April 30, 2015

BENJAMIN KARL SMITH, Plaintiff,
v.
WARDEN KIRKEGARD, SGT. POSTMA, OFFICER DAVID AUGUST (BOGUT), and CAPTAIN SCOTT CLARK[1] Defendants.

ORDER

DANA L. CHRISTENSEN, Chief District Judge.

Pending is Plaintiff Benjamin Smith's Motion to Seek Protection by the Court from the Defendants (Doc. 14) which the Court has construed as a Motion for temporary restraining order and/or preliminary injunction.

The Court does not have jurisdiction to decide Mr. Smith's motion because he requests relief from individuals who have not filed an appearance in this matter and he seeks to enjoin conduct which is unrelated to the present lawsuit. In addition, he has not met the standard for issuance of a temporary restraining order or preliminary injunction. His motion will be denied.

I. Background

A. Plaintiff's Complaint

Mr. Smith alleges Defendants violated his First and Eighth Amendment rights under the United States Constitution by interfering with his ability to practice his religion during the holy month of Ramadan. The Complaint seeks "any injunctive relief the Court deems necessary" and compensatory, and punitive damages. (Complaint, Doc. 2 at 9.)

On initial screening, United States Magistrate Judge Johnston required Defendants Kirkegard, Postma, August (Bogut), and Clark to respond to the Complaint but recommended the dismissal of Defendants State of Montana, Montana State Prison, and the Montana Department of Corrections. (Doc. 11.) Defendants State of Montana, Montana State Prison, and the Montana Department of Corrections were dismissed on April 23, 2015. (Doc. 19.) Defendants Postma, Clark, Bogut, and Kirkegard filed a Waiver of Service on March 30, 2015 (Doc. 10) but have not yet filed a responsive pleading.

B. Mr. Smith's Motion

Mr. Smith seeks an order from the Court to protect him from the Defendants and their associates. He alleges that as recently as March 9, 2015, he has been subjected to harassment, threats, racial and derogatory language, and mistreatment from Montana State Prison staff. In addition, he alleges Defendant Clark refused to investigate an incident involving racial language in December 2014. Mr. Smith alleges that he has been harassed and denied vital legal materials since the filing of this case. He strongly feels that his safety is at issue and asks the Court to order Defendants to cease and desist the illegal actions taken. (Doc. 14.)

In response to Mr. Smith's Motion, Defendants argue that the motion should be denied because: (1) Mr. Smith did not comply with the notice provisions of Fed.R.Civ.P. 65(b); (2) Mr. Smith has not met the standards for a temporary restraining order or a preliminary injunction; and (3) Mr. Smith failed to comply with Local Rule 7.1(c)(1).

Mr. Smith did not file a Reply to Defendants' Response.

II. Legal Standard

"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.'" Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) ( quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted) ("[a] preliminary injunction is an extraordinary remedy never awarded as of right"). A plaintiff seeking a preliminary injunction must show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. "But if a plaintiff can only show that there are serious questions going to the merits' - a lesser showing than likelihood of success on the merits - then a preliminary injunction may still issue if the balance of hardships tips sharply in the plaintiffs favor, ' and the other two Winter factors are satisfied." Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) ( quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious questions variant of the Winter test, "[t]he elements... must be balanced, so that a stronger showing of one element may offset a weaker showing of another." Lopez, 680 F.3d at 1072.

The Prison Litigation Reform Act ("PLRA") imposes additional requirements on prisoner litigants who seek preliminary injunctive relief against prison officials and requires that any injunctive relief be narrowly drawn and the least intrusive means necessary to correct the harm. 18 U.S.C. ยง 3626(a)(2); ...


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