United States District Court, D. Maine
RECOMMENDED DECISION AND ORDER
C. Nivison U.S. Magistrate Judge
action, Plaintiff seeks relief, pursuant to 42 U.S.C. §
1983, for alleged violations of his constitutional rights.
Upon review of Plaintiff’s complaint in accordance with
28 U.S.C. §§ 1915(e) and 1915A, I recommended the
Court dismiss Plaintiff’s complaint unless Plaintiff
amended his complaint to state an actionable claim. (ECF No.
same day the recommended decision was issued, Plaintiff filed
a motion for injunctive relief. (Plaintiff’s Motion for
a Temporary Restraining Order and Preliminary Injunction, ECF
No. 26; Declaration in Support of Plaintiff’s Motion
for a Temporary Restraining Order and Preliminary Injunction,
ECF No. 26-1.) Through his motion and supporting declaration,
Plaintiff asks the Court to order Defendants to provide him
with greater law library access, to open his legal mail only
in his presence, and to provide him with a reasonable number
of private telephone calls with legal counsel.
review of Plaintiff’s filings, I recommend that the
Court deny Plaintiff’s request for immediate injunctive
declaration in support of his motion, Plaintiff asserts under
the statutory alternative to the oath that he receives one
one-hour session per week to use the satellite law library,
which hour is separate from the hour he receives every day to
be outside of his cell. (Declaration ¶ 5.) Plaintiff
also contends that Defendants mishandle his legal mail, which
includes the opening of his legal mail outside of his
presence. (Id. ¶¶ 7 - 8.) Finally,
Plaintiff alleges that Defendants record and monitor his
telephone communications with counsel. (Id.
obtain emergency injunctive relief, Plaintiff must show
"(1) a substantial likelihood of success on the merits,
(2) a significant risk of irreparable harm if the injunction
is withheld, (3) a favorable balance of hardships,
(4) a fit (or lack of friction) between the injunction and
the public interest." Nieves-Marquez v. Puerto Rico,
353 F.3d 108, 120 (1st Cir. 2003); Hoffman v. Sec’y
of State of Me., 574 F.Supp.2d 179, 186 (D. Me. 2008).
his submissions, Plaintiff evidently requests both a
temporary restraining order and a preliminary injunction.
Generally, the distinction between the two forms of
injunctive relief is that the former can be awarded without
notice to the other party and an opportunity to be heard.
Int’l Ass’n of Machinists & Aerospace Workers
v. Verso Paper Corp., 80 F.Supp. 3d 247, ___ (D. Me.
2015). A temporary restraining order, therefore, is an even
more exceptional remedy than a preliminary injunction, which
is itself "an extraordinary and drastic remedy that is
never awarded as of right." Voice of the Arab World,
Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st
Cir. 2011) (quoting Munaf v. Geren, 553 U.S. 674,
689 - 90 (2008)). By rule, a temporary restraining order
requires a clear showing "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.
of whether notice is provided, "[t]he dramatic and
drastic power of injunctive force may be unleashed only
against conditions generating a presently existing actual
threat; it may not be used simply to eliminate a possibility
of a remote future injury, or a future invasion of rights, be
those rights protected by statute or by the common law."
Holiday Inns of Am., Inc. v. B & B Corp., 409 F.2d
614, 618 (3d Cir. 1969). Moreover, "judicial restraint
is especially called for in dealing with the complex and
intractable problems of prison administration."
Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir.
1982). See also 18 U.S.C. § 3626(a)(1)(A)
(requiring that prospective injunctive relief "extend no
further than necessary" and afford only "the least
intrusive means necessary to correct the violation, "
and that the court "give substantial weight to any
adverse impact on public safety or the operation of a
criminal justice system caused by the relief").
Court to consider the merit of Plaintiff’s request for
a temporary restraining order, Plaintiff first must
demonstrate that he would suffer an irreparable loss if
Defendants were notified of his request and provided the
opportunity to respond to the motion. Plaintiff has failed to
provide any record evidence that would support such a
conclusion. Additionally, a request for injunctive relief
requires the Court to assess whether a plaintiff is likely to
prevail on the claim asserted in the plaintiff’s
complaint. Verizon New England, Inc. v. Maine Pub.
Utilities Comm’n, 403 F.Supp.2d 96, 102 (D. Me.
2005). As explained in the recommended decision, Plaintiff
has not stated an actionable claim. Plaintiff, therefore, has
not and cannot establish that he has a substantial likelihood
of prevailing on a claim he has asserted against Defendants.
Plaintiff’s request for immediate injunctive relief
motion, however, reinforces the possibility, noted in the
recommended decision, that Plaintiff might have intended to
assert a claim based on his concerns about his access to the
law library, the opening of his mail, and his communications
with legal counsel. For that reason, I previously recommended
the Court permit Plaintiff another opportunity to amend his
complaint before the Court dismisses the matter. (ECF No.
25.) If Plaintiff amends his complaint to state an actionable
claim, Plaintiff can renew his request for injunctive relief
after service of the amended complaint upon the Defendants.
on the foregoing analysis, I recommend the Court deny
Plaintiff’s Motion for a Temporary Restraining Order