United States District Court, D. New Mexico
GENE G. ELLIS, Plaintiff,
GERMAN FRANCO, et al., Defendants.
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR
TEMPORARY RESTRAINING ORDER
MATTER is before the Court on the Plaintiff, Gene G.
Ellis's Motion for a Temporary Restraining Order filed
April 3, 2017. (Doc. 82). The Court denies Plaintiff's
Motion on the grounds that Plaintiff has failed to make the
showing required by Fed.R.Civ.P. 65(b) for issuance of a
temporary restraining order.
filed his Civil Rights Complaint Pursuant to 42 U.S.C. §
1983 on September 22, 2015. (Doc. 1). Plaintiff subsequently
sought leave to amend his Complaint to add parties and modify
his claims, which was granted by the Court on December 8,
2015. (Doc. 11, 25). Plaintiff sought to amend his Complaint
a second time to join additional defendants. The Magistrate
Judge, the Honorable Karen M. Molzen, issued Proposed
Findings and a Recommended Decision, recommending that the
second motion to amend be denied. (Doc. 76). That request to
amend was then denied on March 8, 2017 in the Court's
Order adopting the Magistrate Judge's recommended
decision. (Doc. 78). Plaintiff's Amended Complaint (Doc.
11 at 2-40) together with his original Complaint (Doc. 1)
form the operative complaint for purposes of this case. (Doc.
25 at 3).
Amended Complaint alleges that Penitentiary of New Mexico
(“PNM”) Warden German Franco, Deputy Warden
Alisha Tafoya-Lucero, Unit Manager Vince Vigil, Captain
Hector Cardenas, and Classification Bureau Chief Colleen
McCarney failed to protect him against violence by other
inmates and provide him with safe housing at PNM in violation
of his Eighth and Fourteenth Amendment rights. (Doc. 11 at
2-4). In his Amended Complaint, Plaintiff sought an emergency
preliminary injunction, a permanent injunction, and an
emergency temporary restraining order. (Doc. 11 at 13, ¶
65- 14, ¶ 67). Plaintiff also filed multiple motions for
temporary and preliminary restraining orders and injunctive
relief. (Doc. 3, 4, 14, 15, 22, 47, 48, and 49). In a
Memorandum Opinion and Order, the Court dismissed
Plaintiff's injunctive relief claims for failure to state
a claim for relief and denied the multiple motions for
temporary restraining orders and preliminary injunctions as
moot. (Doc. 57).
April 3, 2017, Plaintiff filed his ninth Motion for a
Temporary Restraining Order. In his motion, Plaintiff asks
the Court to issue a temporary restraining order
(“TRO”) “stopping Defendant Colleen
McCarney, Classification Bureau Chief, from approving
Plaintiff to be transferred to a level 4 facility and placing
him in harms way.” (Doc. 82). Rule 65(b) of the Federal
Rules of Civil Procedure addresses the requirements for a
TRO. Rule 65(b) provides:
“A temporary restraining order may be granted without
written or oral notice to the adverse party or that
party's attorney only if (1) it clearly appears from
specific facts shown by affidavit or by the verified
complaint that immediate and irreparable injury, loss, or
damage will result to the applicant before the adverse party
or that party's attorney can be heard in opposition, and
(2) the applicant's attorney certifies to the court in
writing the efforts, if any, which have been made to give the
notice and the reasons supporting the claim that notice
should not be required.”
The Tenth Circuit has adopted four elements for the Court to
consider in deciding whether to grant a TRO under Rule 65(b).
Those four elements are: (1) a showing that the movant will
suffer immediate and irreparable injury unless the injunction
issues; (2) proof that the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause
the opposing party; (3) a substantial likelihood that the
movant will eventually prevail on the merits: and (4) a
showing that the injunction, if issued, would not be adverse
to the public interest. Lundgrin v. Claytor, 619
F.2d 61, 63 (10th Cir. 1980).
is proceeding pro se in this matter and the Court must
liberally construe his filings. Gillihan v.
Shillinger, 872 F.2d 935, 938 (10th Cir.
1989). However, the Court may not assume the role of advocate
for the pro se party and need not accept unsupported
conclusory allegations. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). A TRO is an
extraordinary remedy and, therefore, a movant's right to
relief must be clear and unequivocal. Kansas Health Care
Ass'n, Inc. v. Kansas Dep't of Social &
Rehabilitation Servs., 31 F.3d 1536, 1543
(10th Cir. 1994).
issuance of a TRO, Rule 65 requires a factual showing of both
immediate and irreparable injury, loss, or damage made by way
of an affidavit or verified complaint. Fed.R.Civ.P.
65(b)(1)(A). Plaintiff's current request for a TRO is not
sworn or supported by an affidavit or verified complaint as
required by Rule 65(b)(1)(A). Although Plaintiff's motion
contains conclusory allegations of irreparable harm, it
contains no real factual support for those allegations.
Further, the motion does not allege any danger of immediate
injury. Instead, the motion speculates that Plaintiff
“could very well be placed in a very dangerous
situation and can get hurt.” (Doc. 82). Absent a clear
and unequivocal factual showing that Plaintiff will suffer
immediate and irreparable injury, Plaintiff's motion is
insufficient to support issuance of a TRO by the Court.
Lundgrin, 619 F.2d at 63; Kansas Health Care
Ass'n, 31 F.3d at 1543. Because Plaintiff has not
made the threshold factual showing of immediate and
irreparable harm, the Court will not reach the remaining rule
65(b) elements and will deny Plaintiff's motion without
prejudice to any future request for a TRO or injunctive
relief made on a proper factual showing.
ORDERED that Plaintiff's Motion for a Temporary
Restraining Order (Doc. 82) is DENIED.
 Plaintiff's Complaint is signed
under penalty of perjury, but does not contain factual
allegations of immediate and irreparable injury supporting