United States District Court, D. Montana, Billings Division
L. Christensen, Chief District Judge
Lionel Ellison, a prisoner proceeding without counsel, has
filed a document entitled Petition for Emergency Order of
Protection. (Doc. 1.) He seeks an order of protection from
Yellowstone County officers and asks the Court to delay his
December 14, 2018 re-sentencing in state district court until
he can be transported by U.S. Marshals and housed in a
federal facility throughout the resentencing hearing and his
post-conviction process. (Letter to Judge Cavan, Doc. 1-2 at
Ellison's request must be denied as he is asking this
Court to interfere in a state court criminal proceeding.
Challenges to ongoing criminal proceedings are barred by the
Younger doctrine. Younger v. Harris, 401
U.S. 37 (1971). There is a strong policy against federal
intervention in state judicial processes in the absence of
great and immediate irreparable injury to the federal
plaintiff. Younger, 401 U.S. at 45; see also
Gooding v. Hooper, 394 F.2d 146 (9th Cir. 1968), cert,
denied 391 U.S. 917 (1968). Younger directs federal
courts to abstain from granting injunctive or declaratory
relief that would interfere with pending state judicial
proceedings. Martinez v. Newport Beach City, 125
F.3d 777, 781 (9th Cir. 1997) overruled on other grounds
Green v. City of Tucson, 255 F.3d 1086 (9th Cir. 2001)
(citing Younger, 401 U.S. at 40-41).
in civil cases 'is appropriate only when the state
proceedings: (1) are ongoing, (2) are quasi-criminal
enforcement actions or involve a state's interest in
enforcing the orders and judgments of its courts, (3)
implicate an important state interest, and (4) allow
litigants to raise federal challenges.'" Cook v.
Harding, 879 F.3d 1035, 1039 (9th"Cir.
2014)(quoting Ready Link Healthcare, Inc. v.
State Comp. Ins. Fund, 754 F.3d 754, 759 (9th Cir.
2014), Sprint Commons., Inc. v. Jacobs, 571 U.S. 69,
134 S.Ct. 584, 593-94, 187 L.Ed.2d 505 (2013)). Where all
elements are met, the court must dismiss claims for equitable
relief because it lacks the discretion to grant such relief.
elements of Younger abstention are established in
this case. First, there are ongoing state criminal
proceedings. Mr. Ellison's 2015 state conviction in Cause
No. DC 14-0614 was reversed in part by the Montana Supreme
Court on October 16, 2018 and his case was remanded to the
Montana Thirteenth Judicial District Court for Yellowstone
County for further proceedings. (Doc. 1-1 at 2-3.) On October
24, 2013, District Judge Blair Jones issued an order setting
a December 14, 2018 sentencing hearing in the underlying
criminal proceedings and directing the Yellowstone County
Sheriffs Department to transport Mr. Ellison from Montana
State Prison (MSP) to the Yellowstone County Detention
Facility (YCDF) for Mr. Ellison's appearance at the
sentencing hearing. (Doc. 1-1 at 4.) Mr. Ellison seeks to
challenge this order in the ongoing state criminal
the state court criminal proceedings revolve around important
state interests to enforce the local and state laws. See
Younger, 401 U.S. at 43-44. The State of Montana,
through its state and local prosecuting offices, has a
significant state interest in prosecuting conduct that
constitutes a criminal offense under the laws of Montana. The
Montana Supreme Court remanded Mr. Ellison's case to the
state district court for resentencing. This Court may not
interfere with the state's interest in resentencing Mr.
Mr. Ellison has an adequate opportunity in the state court to
raise federal questions and concerns that affect his federal
rights. Mr. Ellison has opportunities under Montana law, and
the laws and rules of criminal procedure set forth in Title
46, Mont. Code Ann., to file motions, or to request certain
forms of relief from the state court to address his concerns.
He is represented by counsel in his underlying state court
action and can raise the concerns raised herein with the
this action would unduly interfere with the state criminal
proceeding in a way Younger disapproves. Mr. Ellison
seeks to challenge the October 24, 2018 order to transport
Mr. Ellison for re-sentencing. To grant this request would
directly interfere with the re-sentencing hearing.
four prongs of the Younger test have been satisfied
and the Court must abstain from adjudicating Mr.
Ellison's claims under Younger, 401 U.S. 37.
Absent exceptional circumstances, district courts do not have
discretion to avoid the doctrine if the elements of
Younger abstention exist in a particular case.
San Jose Silicon Valley Chamber of Commerce Political
Action Committee v. City of San Jose, 546 F.3d 1087,
1092 (9th Cir. 2008) (citation omitted). The recognized
exceptional circumstances are limited to "a 'showing
of bad faith, harassment, or some other extraordinary
circumstance that would make abstention
inappropriate.'" Id. (quoting Middlesex County
Ethics Committee v. Garden State Bar Association, 457
U.S. 423, 435 (1982)).
Ellison may believe he has set forth an extraordinary
circumstance but the Court disagrees. Mr. Ellison has
presented a plethora of documents in support of his request
but these documents simply raise allegations without any
actual evidence to support his claim that he is in danger.
His exhibits include the October 16, 2018 Montana Supreme
Court decision, the Order setting the December 14, 2018
re-sentencing, two statements from Montana State Prison
officers, Mr. Ellison's objections to Magistrate Judge
Johnston's November 8, 2018 Findings and Recommendations
filed in Civil Action 18-cv-56-BLG-BMM-JTJ, three documents
drafted by Mr. Ellison entitled "criminal
complaints," two grievances submitted by Mr. Ellison
during his incarceration at Yellowstone County Detention
Facility, affidavits from his parents, and a number of photos
regarding incidents which occurred in 2010 and 2013. (Doc.
1-1.) None of these documents constitute actual evidence that
Mr. Ellison is in danger.
the Court were to consider Mr. Ellison's Petition for an
Emergency Order of Protection, he has not met the standard
for injunctive relief. Mr. Ellison's filing is
essentially a request for a temporary restraining order or
preliminary injunction. A temporary restraining order is an
extraordinary measure of relief that a federal court may
impose without notice to the adverse party if, in an
affidavit or verified complaint, the movant "clearly
showf[s] that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A). The
standard for issuing a temporary restraining order is
essentially the same as that for issuing a preliminary
injunction. Stuhlbarg Int'l Sales Co. v. John D.
Brush & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001)
(stating that the analysis for temporary restraining orders
and preliminary injunctions is "substantially
identical"). Mr. Ellison has not met the standard.
preliminary injunction is an extraordinary remedy never
awarded as of right." Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 24 (2008) (citations
omitted). It serves not as a preliminary adjudication on the
merits, but as a tool to preserve the status quo and prevent
irreparable loss of rights before judgment. Textile
Unlimited, Inc. v. A.. BMH& Co., Inc., 240 F.3d 781,
786 (9th Cir. 2001). In reviewing a motion for preliminary
injunction, "courts must balance the competing claims of
injury and must consider the effect on each party of the
granting or withholding of the requested relief."
Winter, 555 U.S. at 24 (citations and internal
quotation marks omitted). "A plaintiff seeking a
preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an
injunction is in the public interest." Winter,
555 U.S. at 20 (citations omitted).
does not expressly prohibit use of a "sliding scale
approach to preliminary injunctions" whereby "the
elements of the preliminary injunction test are balanced, so
that a stronger showing of one element may offset a weaker
showing of another." Alliance/or the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The Ninth
Circuit recognizes one such "approach under which a
preliminary injunction could issue where the likelihood of
success is such that serious questions going to the merits
were raised and the balance of hardships tips sharply in
plaintiffs favor." Id. (citations, internal
quotation marks omitted).
Ellison is seeking an order of protection from further
physical harm by YCDF officers and senior staff. He contends
that Yellowstone County officers had Mr. Ellison stabbed
three times during the last time he was in their care and
custody. He has provided statements from officers
at MSP on offender request forms indicating that they agree
that Mr. Ellison should be housed in a facility other than
YCDF for his upcoming sentencing. (Doc. 1-1 at 5-7.) Mr.
Ellison contends these statements are based on statements and
threats made through the Montana Correctional Officers ...