United States District Court, D. New Mexico
PETER T. CHAVEZ, Plaintiff,
WARDEN BETTY JUDD, ALL OF HER SECURITY AND MEDICAL STAFF AS “PERSONS” WHO ARE LIABLE FOR THEIR ACTIONS, Defendants.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO CEASE
MATTER is before the Court on the Plaintiff, Peter T.
Chavez's Motion to Cease and Desist (Doc. 13). The Court
construes Plaintiff's Motion as a request for a temporary
restraining order and denies Plaintiff's Motion, without
prejudice, 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.
Peter T. Chavez is a prisoner incarcerated at the
Northwestern New Mexico Correctional Facility. He is
proceeding pro se and in forma pauperis. Plaintiff
filed his Prisoner's Civil Rights Complaint pursuant to
42 U.S.C. § 1983 on January 8, 2018. (Doc. 1).
Plaintiff's Complaint asserts claims against Warden Betty
Judd and “all of her Security and Medical Staff as
‘persons' who are liable for their actions.”
(Doc. 1 at 1). He alleges due process and Eighth Amendment
cruel and unusual punishment claims for the alleged wrongful
death of another inmate. (Doc. 1 at 1-3).
March 23, 2018, Plaintiff filed his Motion to Cease and
Desist. (Doc. 13). In his Motion, Plaintiff relates an
incident occurring on March 21, 2018, where he claims that
“about 2:00 pm thru 3:00 pm I was called out of my unit
to be interrigated by (3) personal from Core Civic non-other
then to provoke me into getting violant with them.”
(Doc. 13 at 1). The Motion argues that “[t]he courts
need to seriously take action because Core Civic is causing
to much stress on inmates as the inmates themselves are ready
to take action.” (Doc. 13 at 4). The only relief
requested in the Motion is “that the courts order this
motion on my behalf.” (Doc. 13 at 4). The Motion
contains no signature.
Motion does not clearly specify the relief requested by
Plaintiff. However, based on the title “Cease and
Desist, ” the Court construes the Motion as a request
for a temporary restraining order (“TRO”).
See Wilson v. Bruce, 816 F.Supp. 679, 680 (D. Kan.
1993) (prisoner's motion for a temporary restraining
order to cease and desist unreasonable time limits on library
usage). 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.”
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. Haines v. Kerner,
404 U.S. 519, 520-21 (1972). 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 even signed, and is not supported by an affidavit or
verified complaint as required by Rule 65(b)(1)(A). Although
Plaintiff's motion contains conclusory allegations of
“extremely inhumane” punishment (Doc. 13 at 4),
it contains no real factual support for any danger of
immediate injury to Plaintiff. 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
ORDERED that Plaintiff Peter T. Chavez's Motion to Cease