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Waterman v. Board of Commissioners

United States District Court, D. Kansas

June 27, 2018

BRIAN MICHAEL WATERMAN, Plaintiff,
v.
BOARD OF COMMISSIONERS, et al., Defendants.

          ORDER

          Sam A. Crow, U.S. District Senior Judge

         This case is before the court upon plaintiff's motion for a preliminary injunction (Doc. No. 7) and plaintiff's motion for appointment of counsel (Doc. No. 12). Plaintiff is a pretrial detainee at the Cherokee County Jail. He is proceeding pro se. The court gives his pleadings a liberal interpretation.

         I. Motion for preliminary injunction

         A. Plaintiff's allegations

         Plaintiff alleges that, as a pretrial detainee at the Cherokee County Jail, in June 2017 he was placed on a medical diet because he had lost significant weight. At that time he weighed 151 pounds. Plaintiff left the Cherokee County Jail on November 28, 2017 weighing approximately 181 pounds and returned on February 1, 2018 weighing 171 pounds. Plaintiff claims that he lost five pounds during his first week back and that by May 31, 2018, he weighed 149 pounds. Plaintiff further asserts that defendant Kristin Wagner, a nurse who attends to the jail, has followed a policy since plaintiff's return which does not permit a medical diet (in other words, increased food portions) as long as plaintiff's body mass index (“BMI”) is 18 or more. Plaintiff alleges that he also has a staph infection and that he had to file a grievance to get antibiotics from Wagner. He asserts that she is retaliating against plaintiff because plaintiff has filed grievances, registered complaints with oversight agencies, and contacted government officials to object.

         B. Preliminary injunction standards

         The standards for a preliminary injunction are the same as the standards for a temporary restraining order.[1] Pruner v. Dept. of the Army, 755 F.Supp. 362, 364 (D.Kan. 1991). A preliminary injunction order is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. See Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). To prevail on the motion, a plaintiff must establish: (1) that irreparable injury will result unless the order is issued; (2) the threatened injury outweighs whatever damage the proposed restraining order may cause the defendants; (3) the restraining order, if issued, will not be adverse to the public interest; and (4) a substantial likelihood of success on the merits. Id. Where the movant decidedly prevails on the first three factors, he or she may establish a “likelihood of success” by showing questions going to the merits so serious, substantial, difficult, and doubtful as to make them ripe for litigation. Id. at 1189. Plaintiff appears to be seeking an injunction which would alter the status quo. In these circumstances, plaintiff must make a strong showing of a likelihood of success on the merits and that the balance of harms is in his favor. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th Cir. 2004).

         Federal statutory law requires that “[t]he court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). The Federal Rules of Civil Procedure also mandate reasonable specificity in the scope of an injunctive order. FED.R.CIV.P. 65(d)(1) provides that any order granting an injunction or restraining order “describe in reasonable detail . . . the act or acts restrained or required.”

         B. Analysis

         1. Irreparable harm

         This is the most important prerequisite to obtain a preliminary injunction or temporary restraining order. See New Mexico Dept. of Game and Fish v. U.S. Dept. of Interior, 854 F.3d 1236, 1249 (10th Cir. 2017). A plaintiff must show a significant risk that he will be harmed in a manner that cannot be compensated after the fact by money damages. Id. at 1250 (quoting Fish v. Kobach, 840 F.3d 710, 751-52 (10th Cir. 2016)). The harm must not be not speculative; a significant risk of irreparable harm must be demonstrated. Id. (interior quotation omitted). Here, plaintiff's allegations leave the court to speculate as to whether there is an imminent risk of a physical injury and whether defendant's actions are chilling plaintiff's exercise of his First Amendment rights. There is no strong showing of either in the facts plaintiff has alleged. Moreover, plaintiff does not allege facts establishing that defendant Wagner's actions are motivated to retaliate against plaintiff. Without such a showing, the court cannot conclude that plaintiff will likely suffer a constitutional injury.

         2. Public interest

         The Supreme Court and the Tenth Circuit have frequently recognized that it is in the public's interest to afford deference to jail officials in managing the day-to-day operations of a jail given the unique nature, needs and concerns in the prison or jail environment. See Doe v. Heil, 533 Fed.Appx. 831, 843-44 (10th Cir. 2013)(citing multiple Supreme Court cases and a Tenth Circuit case). The court has relied upon this factor as partial grounds to deny other motions for injunctive relief against prison administrators. See Cox v. Denning, 2013 WL 1687094 *2 (D.Kan. 4/18/2013); Heistand v. Coleman, 2008 WL 5427772, at *6 (D. Kan. Dec. 31, 2008).

         3. Likelihood of ...


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