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Gordon v. Niesen

United States District Court, D. Hawaii

November 5, 2018

SCOTT LEE GORDON, Plaintiff,
v.
PAUL NIESEN, et al., Defendants.

          ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AND PROTECTIVE ORDER

          DERRICK K. WATSON UNITED STATES. DISTRICT JUDGE.

         On August 30, 2018, pro se Plaintiff Scott Lee Gordon filed a Motion for Preliminary Injunction and Protective Order. Dkt. No. 44. In the motion, Gordon requests an order that he remain at Saguaro Correctional Center (SCC) until the date of his scheduled trial on July 1, 2019. Gordon also requests a restraining order against an inmate, Shalom Tuimalealiifano, and his known associates and/or fellow gang members, as well as a restraining order against all defendants in this case. On September 28, 2018, Defendants Paul Niesen and Keone Morreira filed an opposition to the motion. Dkt. No. 50. On October 15, 2018, Gordon filed a reply. Dkt. No. 51. Because Gordon fails to show he is likely to suffer irreparable injury, the Motion for Preliminary Injunction and Protective Order is DENIED.[1]

         PROCEDURAL BACKGROUND

         On June 25, 2018, Gordon filed a Second Amended Complaint (SAC) against Niesen, Morreira, Thomas Craig III, and Does 1 and 2 (collectively, “Defendants”). Dkt. No. 34. Shortly thereafter, the Magistrate Judge found that the SAC stated a claim against the Defendants, ordered Niesen and Morreira to answer the same, and ordered Gordon to identify Does 1 and 2 and provide a current address for Craig. Dkt. No. 35. Niesen and Morreira filed an answer to the SAC on July 12, 2018. Dkt. No. 38.

         On August 30, 2018, Gordon filed the instant motion. Dkt. No. 44. Soon after filing the motion, Gordon filed a letter, stating that he “wanted to make sure it's clear what I was trying to say” in the motion. Dkt. No. 48. In the letter, Gordon reiterated that he wanted to “remain” at SCC until July 1, 2019. Niesen and Morreira then filed a response to the motion, Dkt. No. 50, and Gordon filed a reply, Dkt. No. 51. As of the date of this Order, Does 1 and 2 have not been identified, and Craig has not been served.[2]

         LEGAL STANDARD

         The Court liberally construes Gordon's pro se motion. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, the Court cannot act as counsel for a pro se litigant or supply the essential elements of a claim. Pliler v. Ford, 542 U.S. 225, 231 (2004); Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

         DISCUSSION

         In the motion, Gordon requests three forms of injunctive relief: (1) an order that he remain at SCC until July 1, 2019; (2) a restraining order against Tuimalealiifano; and (3) a restraining order against the Defendants. The Court addresses each request, focusing upon whether Gordon has shown a likelihood of irreparable injury.

         Remaining at SCC

         In the motion, Gordon states that he should remain at SCC “for reasons of [his] safety and security.” However, other than stating that the events in this case occurred at a different prison, Halawa Correctional Facility (HCF), and he is not in fear at SCC, Gordon provides no explanation for why it is likely he will suffer irreparable injury if he does not remain at SCC or why it is likely that he will be removed from SCC.

         In his letter, Gordon goes a little further, stating that he does not want to return to HCF because he does not feel safe and is “in fear of retaliation from Halawa staff.” However, even if the Court were to accept that Gordon has a subjective fear of retaliation, there is no evidence to suggest that any staff at HCF would retaliate against Gordon if he was returned there. Similarly, although, in light of the allegations in the SAC, the Court can certainly accept that Gordon would feel unsafe if he was returned to HCF, that does not mean that he will be returned to HCF before July 1, 2019 or, even if he was returned, that irreparable injury would be likely.

         In reply, Gordon adds further detail on past events at HCF in which he alleges he suffered injuries and his safety was “breached.” Whether the alleged events demonstrate Gordon will suffer irreparable injury if he is returned to HCF is doubtful.[3] Nevertheless, the Court need not resolve that issue because the events do not demonstrate that Gordon is under any threat or likelihood of being removed from SCC prior to July 1, 2019. Because there is no evidence that ...


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