Subject: Order denying TRO Mayo et al. v. Krogstel, et al. Civ. 06cv01236MSKBNB with footnote 1 (corrected copy & caption)
- From: "David" <ny@xxxxxxxxxxxxxx>
- Date: Fri, 30 Jun 2006 17:30:29 GMT
Subject: Order denying TRO Mayo et al. v. Krogstel, et al. Civ.
06cv01236MSKBNB
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 06cv01236MSKBNB
ADAM MAYO, on behalf of himself and all others similarly situated; and
WILLIAM RANDELL, III, on behalf of himself and all others similarly
situated, Plaintiffs,
v.
UNITED STATES FOREST OFFICER FNU KROGSTEL, in his official capacity;
UNITED STATES FOREST OFFICER FNU LAMPE, in his official capacity;
UNITED STATES FOREST OFFICER FNU BARTON, in his official capacity;
UNITED STATES FOREST OFFICER FNU FREUND, shield # 1662, in his official
capacity;
JOHN AND JANE DOE, UNKNOWN MEMBERS OF THE UNITED STATES FOREST
SERVICE, in their official capacities;
JOHN AND JANE DOE, UNKNOWN MEMBERS OF THE UNITED STATES MARSHAL
SERVICE, in their official capacities; and
UNITED STATES MAGISTRATE JUDGE DAVID WEST, in his official capacity,
Defendants.
______________________________________________________________________________
ORDER DENYING RENEWED MOTION FOR TEMPORARY RESTRAINING ORDER
AND SETTING PRELIMINARY INJUNCTION HEARING
________________________________________________________________
THIS MATTER comes before the Court pursuant to the Plaintiffs' Renewed
Motion for
Temporary Restraining Order (# 7).
According to the unverified Complaint (# 1) of June 27, 2006, Plaintiff Mayo
is an attorney "seeking to represent various clients" awaiting trial in
Routt County, Colorado. Docket # 1 at 3, ¶ 7. Plaintiff Rendall is a
defendant in an unidentified criminal proceeding, but who, the Court infers,
is awaiting trial in Routt County. Id. at 4, ¶ 9. The Complaint alleges that
personnel of the United States Forest Service and United States Marshal "are
denying members of the public access to the trials being conducted" in Routt
County. Id. at 3, ¶ 5. Plaintiff Mayo "has been refused entry into the
proceedings and is unable to advise his clients precisely what is occurring
inside" and Plaintiff Rendell "wishes to have a public trial" and "wishes to
attend and observe the proceedings of others." Id. at 34, ¶ 8, 9. The
Complaint asserts violations of the Plaintiffs' First and Sixth Amendment
rights under the United States Constitution, and seeks declaratory and
injunctive relief. Id. at 46.
On June 29, 2006, the Plaintiffs filed the instant Renewed Motion for
Temporary Restraining Order (# 7), requesting that the Court "declare the
actions of the Defendants unconstitutional and award Plaintiff (sic) the
relief sought in his (sic) Complaint." The motion advises that the
Plaintiffs' counsel spoke to the Defendants' counsel on June 29, 2006 to
give her notice of the lawsuit, and that Plaintiffs' counsel is providing
the Defendants' counsel a copy of the motion for a temporary restraining
order by email.
The Plaintiffs' motion is supported by the affidavit of Plaintiff Mayo which
alleges, in pertinent part:
(i) that Plaintiff Mayo was present at the courthouse in Routt County on
June 23, 2006;
(ii) that his legal services were retained by some individuals;
(iii) that several unnamed Forest Service officers denied him the
opportunity to enter the courthouse and instructed him to wait until his
clients' names were called;
(iv) that he waited approximately 4½ hours, then left to attend to other
matters; and
(v) that as a result, he was unable to file motions in his clients' cases or
speak to the prosecutor on behalf of his clients.
Fed. R. Civ. P. 65(b)(1) provides that a temporary restraining order may be
granted "only if 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 . . . can be heard in opposition." In
addition, an applicant seeking a temporary restraining order must "certif[y
.. . .] the efforts, if any, which have been made to give the notice and the
reasons supporting the claim that notice should not be required." [Footnote
1] Fed. R. Civ. P. 65(b)(2).
To constitute irreparable harm, an injury must be certain, great, actual,
and not theoretical. Schrier v. University of Colorado, 427 F.3d 1253, 1267
(10th Cir. 2005). To establish that irreparable harm is immediate, one must
show that the injury complained of is of such imminence that there is a
clear and present need for equitable relief to prevent it. Id. The purpose
of
injunctive relief is not to remedy past violations, but to protect
plaintiffs from irreparable injury that will surely result without their
issuance. Id.
The affidavit supporting the Plaintiffs' motion does not demonstrate that
any injury to Plaintiff Mayo is imminent. The affidavit establishes that, on
a single occasion, Plaintiff Mayo was denied access to the courthouse. It
does not allege that Plaintiff Mayo returned to seek access, intends to
return, or in such circumstance is likely to again be denied access. At
most, Plaintiff Mayo's affidavit evidences a past constitutional violation,
for which injunctive relief is not appropriate. No affidavit has been
submitted by Plaintiff Randell. As a result, the Plaintiffs have failed to
adequately establish that injunctive relief is necessary to prevent an
imminent, irreparable harm. Moreover, the Plaintiffs have not alleged
sufficient facts to show that notice to the Defendants and an opportunity to
be heard should not be required before injunctive relief issues.
Because Plaintiff Mayo's affidavit does not allege that he intends to return
to the courthouse and there is no affidavit by Plaintiff Randell, the Court
cannot conclude that either will suffer any future injury before a hearing
can be held.
Accordingly, the Plaintiffs' Motion for Temporary Restraining Order (# 7) is
DENIED. Although their motion does no specifically request it, the Court
will deem the motion to also request a preliminary injunction. The Court
will hear evidence in support of the Plaintiffs' request for a preliminary
injunction hearing at 9:30 a.m. on Friday, June 30, 2006. Immediately upon
receipt of this Order, the Plaintiffs shall advise counsel for the
Defendants of its contents and serve a copy of this Order upon them. Because
the relief sought by the Plaintiffs is admittedly identical to the relief
sought in the Complaint, the parties are advised that pursuant to Fed. R.
Civ. P. 65(a)(2), trial on the merits of the Complaint will be consolidated
with
the preliminary injunction hearing.
Dated this 29th day of June, 2006
BY THE COURT:
Marcia S. Krieger
United States District Judge
[Footnote 1] Some courts require that a party seeking a temporary
restraining order not only establish
the requirements of Fed. R. Civ. P. 65(b), but also that they show that the
requirements for
obtaining a preliminary injunction are met. See e.g. Flying Cross Check, LLC
v. Central Hockey
League, Inc., 153 F.Supp.2d 1253, 1258 (beyond Rule 65(b)'s "threshold
showings," movant
must also establish that it will suffer irreparable injury if the injunction
does not issue, a likelihood
of success on the merits, a balancing of equities in the movant's favor, and
that the requested
relief would not be adverse to the public interest). The Plaintiffs' request
as presented fails to
establish that an injunction is necessary to prevent future irreparable
harm, and thus, would fail on
the first element of the preliminary injunction test as well.
.
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