The opinion of the court was delivered by: Daniel L. Hovland, Chief Judge United States District Court
ORDER DENYING PLAINTIFFS' MOTION FOR INJUNCTIVE RELIEF AND GRANTING PLAINTIFFS' MOTION FOR EXTENSION OF TIME
Before the Court is the Plaintiffs' "Motion for Enlargement of Time for Answering Report and Recommendation and for Injunction Allowing Communication Between Plaintiffs" filed on February 24, 2009. See Docket No. 84. The Defendants filed a response to the Plaintiffs' motions on February 27, 2009. See Docket No. 87. The Plaintiffs filed a reply brief on March 10, 2009. See Docket No. 89. For the reasons set forth below, the Plaintiffs' motion for injunctive relief is denied and the motion for an extension of time is granted.
On April 19, 2006, the plaintiffs, Reginald Tweed and Jonathan Moses, filed this pro se civil rights action under 42 U.S.C. § 1983. See Docket No. 1. On July 20, 2007, attorney Chad R. McCabe entered his appearance as counsel of record for the Plaintiffs. See Docket No. 52. On October 3, 2007, the parties filed a Stipulation of Dismissal which stated that the parties mutually stipulated and agreed that any and all of the Plaintiffs' claims were "dismissed with prejudice and without costs, disbursements, or attorneys' fees to any party except Defendants will pay $500.00 of Plaintiffs' attorney's fees." See Docket No. 66. On October 4, 2007, the Court adopted the parties' Stipulation of Dismissal, and ordered that the case be dismissed with prejudice and without costs or disbursements to either party, except the Court ordered the Defendants to pay $500.00 of the Plaintiffs' attorneys' fees. See Docket No. 67. On October 4, 2007, judgment was entered adopting the Stipulation of Dismissal. See Docket No. 68.
On October 7, 2008, the Plaintiffs filed a pro se motion to vacate the Court's October 4, 2007, order pursuant to Rule 60(b)(3) of the Federal Rules of Civil Procedure. See Docket No. 71. Magistrate Judge Charles S. Miller, Jr. conducted a review of the record and relevant case law and submitted a Report and Recommendation on January 6, 2009. See Docket No. 81. Judge Miller recommended that the motion be denied because the Plaintiffs have failed to demonstrate by clear and convincing evidence that they are entitled to relief under Rule 60(b)(3). The Plaintiffs were given ten (10) days to object, but failed to file an objection. On January 28, 2009, the Court adopted the Report and Recommendation, and denied the Plaintiffs' Rule 60(b)(3) motion. See Docket No. 82.
The Court has since been made aware that the Report and Recommendation was not served on the pro se Plaintiffs, but rather was served on attorney Chad McCabe. The Plaintiffs did not receive a copy of the Report and Recommendation. On February 19, 2009, McCabe filed a motion to withdraw as counsel of record for the Plaintiffs to ensure that the Plaintiffs would receive court filings in this case. See Docket No. 83. On February 26, 2009, the Court granted McCabe's motion to withdraw. See Docket No. 86. Because the Plaintiffs did not receive the Report and Recommendation, the Plaintiffs were not able to timely object. The Court ORDERS that its Order Adopting Report and Recommendation (Docket No. 82) is VACATED so that the Plaintiffs have an adequate opportunity to object to the Report and Recommendation.
On March 2, 2009, the Plaintiffs' reply to the Rule 60(b)(3) motion was filed. See Docket No. 88. The Court has been made aware that the reply brief was untimely filed as a result of clerical error, and through no fault of the Plaintiffs. The Report and Recommendation dated January 6, 2009, does not take into consideration the Plaintiffs' reply brief. Therefore, the Court will fully consider the arguments raised in the reply brief, as well as any objections to the Report and Recommendation, before issuing another ruling on the Report and Recommendation. The Plaintiffs request a 30-60 day extension of time to file objections to the Report and Recommendation. See Docket No. 84. On March 16, 2009, Moses individually filed an objection to the Report and Recommendation. See Docket No. 90. The Court GRANTS the Plaintiffs' motion for extension of time (Docket No. 84) to file objections to the Report and Recommendation. The Plaintiffs shall have until Friday, May 22, 2009, to file objections to the Report and Recommendation and any additional supplements to Moses's objection.
The Plaintiffs also move for a preliminary injunction and a temporary restraining order to enjoin the Defendants from denying the Plaintiffs the right to communicate with each other via United States mail regarding this case. The Plaintiffs are housed in different correctional facilities within the North Dakota Department of Corrections and Rehabilitation (DOCR). Tweed is presently housed at the North Dakota State Penitentiary (NDSP) in Bismarck, North Dakota. Moses was originally housed at the NDSP, but was transferred to the James River Correctional Center (JRCC) in Jamestown, North Dakota, on December 16, 2008. Moses continues to be housed at the JRCC.
The Defendants have enacted a policy prohibiting inmates from different facilities from communicating via mail:
The DOCR has a policy that generally prohibits inmate-to-inmate correspondence between inmates in separate DOCR facilities. Contraband is not limited to items such as drugs, weapons, or obscene materials, but includes any item that inmates are not allowed to possess under the DOCR's rules, including written communications between inmates. The prohibition on inmate-to-inmate correspondence between prison facilities helps the DOCR to limit the introduction of contraband into its facilities.
See Docket No. 87-3. Pursuant to the policy, the Plaintiffs are prohibited from sending written communications to each other to discuss the merits of this case. As a result, if the Plaintiffs wish to object to the Report and Recommendation, they will likely need to file separate objections. The Plaintiffs contend that they "will suffer immediate and irreparable damage to their claim should they have to file separate pleadings. Also this Court will have confusing and maybe conflicting filings to wade through." See Docket No. 84. As noted, Moses has already filed an objection to the Report and Recommendation. See Docket No. 90.
Rule 65 of the Federal Rules of Civil Procedure governs the issuance of temporary restraining orders and preliminary injunctions. It is well-established that applications for preliminary injunctions and temporary restraining orders are generally measured against the same factors, which are set forth in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109 (8th Cir. 1981) (en banc). Wachovia Securities, L.L.C. v. Stanton, 571 F. Supp. 2d 1014, 1031 (N.D. Iowa 2008). Whether a preliminary injunction or temporary restraining order should be granted involves consideration of "(1) the movant's probability or likelihood of success on the merits, (2) the threat of irreparable harm or injury to the movant absent the injunction, (3) the balance between the harm to the movant and the harm that the injunction's issuance would inflict on other interested parties, and (4) the public interest." Id. at 1032 (citing Dataphase Sys., Inc., 640 F.2d at 114). "No single factor in itself is dispositive; rather, each factor must be considered to determine whether the balance of equities weighs toward granting the injunction." United Industries Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (citing Sanborn Mfg. Co. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 486 (8th Cir. 1993); Calvin Klein Cosmetics Corp. v. Lenox Laboratories, Inc., 815 F.2d 500, 503 (8th Cir. 1987)). The burden of establishing the necessity of a temporary restraining order or a preliminary injunction is on the movant. Crawford Capital Corp. v. Bear Soldier Dist., 374 F. Supp. 2d 821, 824 (D.N.D. 2005).
First, the Plaintiffs must establish a likelihood of success on the merits. Only Moses has stated his reasons for opposing the Report and Recommendation. The Plaintiffs' likelihood of success will be determined once the they have formally filed objections to the Report and Recommendation and any supplements to Moses's objection. Therefore, at this early stage of the proceedings, the Court is without ...