United States District Court, D. Hawaii
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AND
DERRICK K. WATSON UNITED STATES. DISTRICT JUDGE.
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.
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.
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.
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).
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).
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.
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
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.
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. 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