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Graham v. Weber

United States District Court, D. South Dakota, Southern Division

October 5, 2015

JOHN GRAHAM, Petitioner,
DOUG WEBER, Respondent.


Lawrence L. Piersol United States District Judge

Petitioner, John Graham (Graham), moves the Court to enter a preliminary injunction prohibiting both counsel and parties to Graham's currently pending 28 U.S.C. § 2254 action from publicly commenting on Graham's criminal conviction rendered in South Dakota's Seventh Judicial Circuit, Pennington County for the murder of Anna Mae Aquash. For the following reasons, the requested relief is denied.


In February 1976, the body of Anna Mae Aquash was discovered in a remote region of the Badlands between Kadoka and Wanblee, South Dakota, Thereafter, it was determined that Aquash had died as the result of a bullet wound to the head. In 2003, John Graham, a Canadian National, was charged with Aquash's murder in United States District Court, D. South Dakota. Graham was extradited in 2007. The charge was eventually dismissed in federal court for lack of jurisdiction, but Graham was then indicted in South Dakota state court on separate counts of premeditated murder and felony murder based on kidnapping. A charge of felony murder based on rape was dismissed by the State prior to trial. Graham was found guilty of felony murder predicated on the charge of kidnapping and sentenced to life in prison without parole. Presently, Graham is incarcerated in the South Dakota State Penitentiary.

Graham challenged his conviction in South Dakota court and was denied relief on May 3 0, 2012. A petition for habeas corpus was filed in the Seventh Circuit Court of South Dakota on May 24, 2013, which was denied. A motion for a Certificate of Probable Cause was also filed with the South Dakota Supreme Court on July 18, 2013, which was also denied. On September 17, 2013, Graham filed the pending 28 U.S.C. § 2254 habeas corpus petition in federal court for the District of South Dakota.

On March 20, 2014, during the pendency of Graham's habeas corpus action, Attorney General Marty Jackley spoke at Black Hills State University in Spearfish, South Dakota. The event was titled "South Dakota Cold Case Study- the Murder of Annie Mae Aquash." It is this event, and a subsequent similar event, that is the basis for Graham's requested relief. The event was promoted in the region with various printed announcements. One such announcement read, "Prosecutors say Graham and two other [American Indian Movement (AIM)] activists, Arlo Looking Cloud and Theda Clarke, killed Aquash in December 1975 because they suspected she was a government informant." On March 24, 2014, counsel for Graham wrote to Jackley requesting that Jackley refrain from publicly speaking about Graham's involvement in the Aquash case and ultimate conviction. The letter, in sum, requested that Jackley consent to a self-imposed gag order on the parties. Jackley responded, rejecting the requested gagging and stating that the speaking engagements were not improper.

In March 2015, Jackley again spoke about the Aquash case to a group of some 40 attendees at a benefit for the Casey Tibbs Rodeo Center Museum in Ft. Pierre, South Dakota. This event was reported on in the Capital Journal published in Pierre, South Dakota. The Capital Journal reported that, while in Ft. Pierre, Jackley spoke about Graham raping Aquash prior to him and other AIM members driving her to the area in the Badlands where she was killed. The Capital Journal further reported that Jackley commented on the suspected murder of another AIM activist, Ray Robinson, and that Graham may have information related to Robinson's death. Stephen Lee, Jackley: Aquash Case Might Help Solve Other Cold Cases from Wounded Knee, Capital JOURNAL (March 2, 2015), available at Graham has moved the Court for a preliminary injunction imposing a gag order on the parties, prohibiting them from speaking about the Graham-Aquash case during the pendency of Graham's 28 U.S.C. § 2254 action.


I. Preliminary Injunction

"Defined broadly, a preliminary injunction is an injunction that is issued to protect plaintiff from irreparable injury and to preserve the court's power to render a meaningful decision after a trial on the merits." 11 A Charles Alan Wright, et al., Federal Practice &Procedure § 2947 (3d ed. 2014). In determining whether to grant a preliminary injunction a court considers (1) the probability of the movant's success on the merits; (2) the threat of irreparable harm to the movant; (3) the balance between this harm and the injury that granting the injunction will inflict on other interested parties; and (4) whether the issuance of the preliminary injunction is in the public interest. See Dataphase Sys., Inc. v. C L Sys., Inc. (Dataphase), 640 F.2d 109, 114 (8th Cir. 1981) (en banc). The movant bears the burden of proof concerning the four factors. Gelco Corp. v. Coniston Partners, 811 F.2d414, 418 (8th Cir. 1987). The court balances the four factors to determine whether a preliminary injunction is warranted. Dataphase, 640 F.3d at 113; West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1222 (8th Cir. 1986). "A district court has broad discretion when ruling on preliminary injunction requests[.]" Coca-Cola Co. v. Purdy, 382 F.3d 774, 782 (8th Cir. 2004) (citing United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998)). 'Unbalancing the equities no single factor is determinative In every case, it must be examined in the context of the relative injuries to the parties and the public" Dataphase, 640 F.3d at 113.

Graham has failed to meet the threshold requirement that the requested injunctive relief bear a relationship to the underlying complaint. A preliminary injunction must be denied if it is of a differing character than that which maybe finally granted after trial on the merits or when the preliminary injunction contemplates matters unrelated to the underlying action. Devose v. Herrington, 42 F.3d 470, (8th Cir. 1994) (citing Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir. 1975)) ("[A] party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint."). See Wright, supra; Kaimowitz v. Orlando, Fla, 122 F.3d 41 (11th Cir. 1997), opinion amended on reh'g, 131 F.3d 950 (11th Cir. 1997) (preliminary injunction denied as wholly unrelated to the underlying action); Redd v. Lutgen, No. C11-3046-MWB, 2013 WL 5757864, at *2 (N.D. Iowa Oct. 23, 2013) (denying a preliminary injunction meant to reverse an inmate's transfer from one facility to another as unrelated to the underlying alleged First Amendment violation).

Redd v. Lutgen involved a request for a preliminary injunction from an Iowa inmate. The inmate- movant, Redd, initially filed a complaint pursuant to 42 U.S.C. § 1983 against five individuals for an alleged violation of his Free Exercise rights. As a result, Redd contended that he was repeatedly subjected to facility transfers by prison officials. The transfers, Redd asserted, caused him injury due to the burden placed on him and his family. Thereafter, Redd sought a preliminary injunction in order to return himself from Fort Dodge to the Newton Correctional Facility. The court denied Redd's preliminary injunction The Redd court reasoned that

[t]he [relationship] requirement is necessary because the purpose of a preliminary in junction is to impose a provisional remedy that will remain in place until the issues can be decided on their merits at trial. This is precisely why one of the Dataphase factors explores the probability that the movant will ultimately succeed on the merits. A preliminary injunction that bears no relationship to the events alleged in the complaint would ...

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