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Bruesch v. Netolicky

United States District Court, D. North Dakota

February 21, 2014

Nicholas Dodge Bruesch, Plaintiff,
v.
Brandi Netolicky, Lyle Mee, and Paul Belisle, Defendants.

REPORT AND RECOMMENDATION

KAREN K. KLEIN, Magistrate Judge.

Plaintiff Nicholas Dodge Bruesch ("Bruesch") submitted two proposed orders directing the defendants to show cause why a preliminary injunction and temporary restraining order should not be issued.[1] (Doc. #11, Doc. #14). Bruesch also filed a declaration (Doc. #12), a document with no heading (Doc. #13), a "Memorandum in Support of Order to Show Cause" (Doc. #15), and a second declaration (Doc. #16).[2] The court filed an order stating that the two proposed orders would be considered by the court as a motion for an order to show cause why a preliminary injunction should not be issued. (Doc. #28). The court directed the defendants to file a response. Id . The defendants have responded to the motion (Doc. #32) and Bruesch has filed a reply (Doc. #35).

Summary of Recommendation Bruesch has not met his burden of demonstrating that he is entitled to injunctive relief under Dataphase Sys., Inc. v. C.L. Sys., Inc. , 640 F.2d 109, 113 (8th Cir. 1981). It is RECOMMENDED that Bruesch's motion for an order to show cause why a preliminary injunction should not be issued (Doc. #11, Doc. #14) be DENIED.

Background

Bruesch filed a complaint pursuant to 42 U.S.C. ยง 1983 alleging that defendants have denied him access to the courts. (Complaint, Doc. #10). On April 2, 2013, Bruesch was transferred from the North Dakota State Penitentiary ("NDSP") to the James River Correctional Center ("JRCC"), but his personal property and legal materials were not transported with him. Id . at p. 3. Defendants contend the legal materials were "inadvertently left at NDSP, " but ultimately the materials were delivered to Bruesch on April 23, 2013. (Aff. of Mee, Doc. #33, pp.1-2). Bruesch disagrees that his legal materials were "inadvertently' left at NDSP." Instead, he contends his materials were confiscated at NDSP several weeks before his transfer to JRCC, and leaving them behind was "a calculated action." (Reply Brief, Doc. #35, pp. 3-4).

When Bruesch first arrived at JRCC he was placed within the Special Assistance Unit (SAU) which "provides services to inmates whose unique needs or mental health problems lead to disruptive or otherwise problematic behavior serious enough to endanger the safety and security of the inmate, prison population, and/or staff." (Aff. of Mee, Doc. #33, p. 2). Defendants assert "Bruesch displayed aggressive behavior" upon arriving at JRCC which "made visits to the law library a safety and security risk." Id . Although Bruesch disputes that he was a security risk upon his arrival at JRCC, he does note that his behavior improved within three days after his arrival. (Reply Brief, Doc. #35, p.5).

Bruesch contends that on April 23, 2013, the day he received his legal materials, Attorney Douglas Bahr, who represents other state defendants in another action Bruesch has pending before this court, see Bruesch v. Flanagan, D.N.D. Case No. 1:12-cv-83, contacted the SAU Unit at JRCC, and restrictions were then placed on Bruesch's access to legal materials and the law library at the JRCC. (Complaint, Doc. #10, at pp. 4-5). Bruesch contends that he missed deadlines and could not file proper documents in his other pending federal action because he had no access to legal materials. Id . at p. 5.

Defendants assert they did allow the law librarian to visit Bruesch with no time limits and provide him with requested legal materials. (Aff. of Mee, Doc. #33, p. 2). Starting in June 2013 Bruesch was allowed access to the law library at designated times and for specific durations. Id . Bruesch admits he is currently allowed 1.5 hours of law library time per day, including use of the law library computer. (Doc. #12-1).

Nevertheless, Bruesch contends that certain books are not allowed out of the law library, so during the time he was prevented from going to the law library, he did not have access to those resources, and it would take several weeks to receive the books he had requested. (Reply Brief, Doc. #35, at p. 6). The parties seem to agree that the law library computer was not updated until September 5, 2013, so Bruesch did not have access to the computer until then. (See Aff. of Mee, Doc. #33, p. 3; Reply Brief, Doc. #35, pp. 5-6). Bruesch contends that until he acquired access to the computer he did not have the ability to conduct "proper research." (Reply Brief, Doc. #35, pp. 5-6). He also contends he has been forced to choose between recreation time and visiting the law library on several occasions. Id . at p. 6. Finally, Bruesch states he is forced to wear restraints when utilizing the computer, which makes it "burdensome" to take notes, and the limited access prevents him from filing "proper motions." Id . at p. 7. Defendants, on the other hand, state Bruesch can receive additional time in the law library if needed and if staffing is sufficient; he can also speak with the law librarian upon request; and he has never been forced to choose between exercise and visiting the law library. (Aff. of Mee, Doc. #33, p. 3).

In Bruesch's motion for an order to show cause why a preliminary injunction should not issue and the supporting documents he states defendants have "retaliated against him" by placing restrictions upon him and are involved in "a campaign of harassment' against him."[3] (Doc. #11, p. 4). Bruesch contends that the Warden has threatened to transfer him to a different facility if he continues to file grievances, and that he has been subjected to excessive force.[4] (Doc. #13, pp. 1-2). Bruesch states he has "suffered harm by not being able to file correct motions and memorandums" and he "may lose his lawsuit." (Doc. #11, pp. 1-2). Bruesch requests that the defendants be enjoined from (1) restricting his access to the law library including the amount of time Bruesch can spend in the library and how and when he can visit with the law librarian, (2) making him choose between recreation time and using the law library, and (3) retaliating against him.[5] (Doc. #11, p. 2; Doc. #14, pp. 1-2).

Law and Discussion

In considering whether to grant a preliminary injunction, the court must consider the following factors: "(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." Dataphase , 640 F.2d at 113. "The party seeking injunctive relief bears the burden of proving all the Dataphase factors." Watkins Inc. v. Lewis , 346 F.3d 841, 844 (8th Cir. 2003) (citing Gelco Corp. v. Coniston Partners , 811 F.2d 414, 418 (8th Cir. 1987)).

1. Irreparable Harm

"In order to demonstrate irreparable harm, a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief." Novus Franchising, Inc. v. Dawson , 725 F.3d 885, 895 (8th Cir. 2013) (quoting Iowa Utils. Bd. v. Fed. Commc'ns Comm'n , 109 F.3d 418, 425 (8th Cir. 1996)). Plaintiff must "demonstrate that irreparable injury is likely in the absence of an injunction." Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 22 (2008) (citations omitted). Although no factor is determinative, Dataphase , 640 F.2d. at ...


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