United States District Court, D. New Mexico
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING
matter is before the Court on Plaintiff Laybe Torres's
Motion For Temporary Restraining Order, filed on February 7,
2017. [Doc. 13] Plaintiff is incarcerated, appears pro se,
and is proceeding in forma pauperis. For the reasons
explained below, Plaintiff's motion will be denied.
motion for temporary restraining order Plaintiff alleges, in
relevant part, that when he arrived at Central New Mexico
Correctional Facility (CNMCF) on April 21, 2016 to begin
serving a thirty-month sentence for drunk driving, he was
improperly classified as a member of the prison gang
Syndicato Nuevo Mexico (SNM). [Doc. 13 at 6] As a result of
this improper classification, Plaintiff immediately was
placed in solitary confinement and, afterward, housed in a
“special housing unit (SHU), Level IV custody status .
. . [which] is strictly a unit for validated S.N.M. prison
gang members.” [Doc. 13 at 6-7] Plaintiff alleges that
because he “is forced to live or languish with violent
prison gang members, ” he is exposed to
“substantial risk of serious harm, such as assaults or
even death.” [Doc. 13 at 9] Plaintiff asks this Court
to “issue an injunction order demanding that prison
officials remove Plaintiff's name from the suspected
security threat group list and to order prison officials to
stop locking Plaintiff in solitary confinement with validated
S.N.M. prison gang members.” [Doc. 13 at 11] Plaintiff
further asks the Court to order Defendants “to remove
the Plaintiff from his current housing condition and release
the Plaintiff into General population lower custody
status.” [Doc. 13 at 11]
Rule of Civil Procedure 65(b)(1) provides that:
The court may issue a temporary restraining order without
written or oral notice to the adverse party or its attorney
only if . . . specific facts in an affidavit or a verified
complaint clearly show that immediate and irreparable injury,
loss, or damage will result to the movant before the adverse
party can be heard in opposition; and . . . the movant's
attorney certifies in writing any efforts made to give notice
and the reasons why it should not be required.
Fed. R. Civ. P. 65(b)(1). There is no indication in the
record that Plaintiff has provided Defendants with written or
oral notice of his motion for a temporary restraining order
and Plaintiff has failed to provide the Court with an
affidavit or verified complaint supporting his factual
allegations. Because Plaintiff has failed to comply with Rule
65(b)(1), his motion for temporary restraining order may be
denied summarily. See Bradenburg v. Beaman, 632 F.2d
120, 122 (10th Cir. 1980) (“It is incumbent on
litigants, even those proceeding pro se, to follow the
federal rules of procedure.”).
the Court will address the merits of Plaintiff's motion.
To obtain a temporary restraining order under Rule 65(b),
“the moving party must demonstrate four factors: (1) a
likelihood of success on the merits; (2) a likelihood that
the movant will suffer irreparable harm in the absence of
preliminary relief; (3) that the balance of the equities tips
in the movants favor; and (4) that the injunction is in the
public interest.” RoDa Drilling Co. v. Siegal,
552 F.3d 1203, 1208 (10th Cir. 2009). The United States Court
of Appeals for the Tenth Circuit has stated that
“courts should be especially cautious when granting an
injunction that requires the nonmoving party to take
affirmative action-a mandatory preliminary injunction-before
a trial on the merits, ” because “the primary
goal of a preliminary injunction is to preserve the pre-trial
status quo.” Id. Since such preliminary
injunctive relief is “traditionally disfavored, ”
the moving party “seeking such an injunction [must]
make a heightened showing of the four factors.”
Id. at 1209.
is proceeding pro se and, therefore, the Court must construe
his filings liberally and hold them “to a less
stringent standard.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). However, it is not “the
proper function of the district court to assume the role of
advocate for the pro se litigant.” Id.
Furthermore, pro se status “does not relieve the
plaintiff of the burden of alleging sufficient facts on which
a recognized legal claim could be based.” Id.
Likelihood of Success
Sparks v. Foster, 241 F. App'x 467 (10th Cir.
2007) (unpublished), the United States Court of Appeals for
the Tenth Circuit considered whether the improper
classification of the plaintiff as a prison gang member in a
Security Threat Group (STG) violated the plaintiff's
rights under the due process clause of the Fourteenth
Amendment. The Court noted that “[c]hanging a
prisoner's classification generally does not deprive him
of liberty under the due process clause alone, ”
because a prisoner does not have a liberty interest in his or
her classification. Id. at 471. The Court held that,
since “[c]lassification decisions are within the
discretion of the Department of Corrections, ” the
plaintiff did “not have a liberty interest in a
particular classification, be it a gang member or within an
STG, [and] he [could not] maintain an action based on the
classification under the Fourteenth Amendment.”
Id.; see also Templeman v. Gunter, 16 F.3d
367, 369 (10th Cir. 1994) (“Changing an inmate's
prison classification ordinarily does not deprive him of
liberty, because he is not entitled to a particular degree of
liberty in prison.”). On the basis of the foregoing,
the Court concludes that Plaintiff is unlikely to succeed on
the merits of his Fourteenth Amendment due process claim.
motion for temporary restraining order also alleges that the
conditions of his confinement violate his right to be free
from cruel and unusual punishment under the Eighth Amendment.
[Doc. 13 at 10] “The Constitution . . . does not
mandate comfortable prisons . . . and only those deprivations
denying the minimal civilized measures of life's
necessities . . . are sufficiently grave to form the basis of
an Eighth Amendment violation.” Wilson v.
Seiter, 501 U.S. 294, 298 (10th Cir. 1991) (internal
quotation marks and citation omitted.) The minimal civilized
measures of life's necessities include “adequate
food, clothing, shelter, sanitation, and medical care, and
reasonable safety from serious bodily harm.” Tafoya
v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008).
“To prevail on a ‘conditions of confinement'
claim under the Eighth Amendment, an inmate must establish
that (1) the condition complained of is sufficiently serious
to implicate constitutional protection, and (2) prison
officials acted with deliberate indifference to inmate health
and safety.” DeSpain v. Uphoff, 264 F.3d 965,
971 (10th Cir. 2001) (internal quotation marks and citation
fails to allege, with any particularity, that he has been
deprived of the minimal civilized measures of life's
necessities. Although Plaintiff alleges, in a conclusory
fashion, that he is exposed to a risk of serious harm because
he is housed with “violent validated SNM prison gang
members, ” [Doc. 13 at 10], he fails to identify any
specific and credible threats to his health or safety.
See Riddle v. Mondragon, 83 F.3d 1197, 1205 (10th
Cir. 199) (holding that a plaintiff raising a
failure-to-protect claim under the Eighth Amendment must
“furnish more than a conclusory claim of being afraid
and aggravated”); Hall, 935 F.3d at 1110
(“[C]onclusory allegations without supporting factual
averments are insufficient to state a claim on which relief
can be based.”). Additionally, Plaintiff fails to
allege that Defendants acted with deliberate indifference
because they were aware of, and disregarded, specific and
credible threats to his health or safety. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (holding that “a
prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless the official know of and disregards an
excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference”). Therefore, the Court
concludes that Plaintiff is unlikely to succeed on the merits
of his Eighth Amendment claim.
constitute irreparable harm, an injury must be certain,
great, actual and not theoretical.” Heideman v.
South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.
2003) (internal quotation marks and citation omitted).
“Irreparable harm is not harm that is merely serious or
substantial, ” rather it is harm of “such
imminence that there is a clear and present need for
equitable relief.” Id. (internal quotation
marks and citation omitted; emphasis in original). For the
reasons discussed above, Plaintiff's alleged harm of
serious injury from other inmates is speculative and
“purely speculative harm does not amount to irreparable
injury.” Greater Yellowstone Coalition v.
Flowers, 321 F.3d 1250, 1259 (10th Cir. 2003).
III.Balance of the Equities and ...