United States District Court, D. South Dakota, Southern Division
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Winston Grey Brakeall, filed this lawsuit under 42 U.S.C.
§ 1983. Docket 1. After defendants' motion for
summary judgment based on qualified immunity, Brakeall's
claims for failure to protect and failure to properly staff
the SDSP remain. Docket 98. There are several motions pending
before the court, including defendants' second motion for
summary judgment. The court will not rule on defendants'
second motion for summary judgment until defendants have had
an opportunity to reply. The court will address
Brakeall's motions for a temporary restraining order and
preliminary injunction, to appoint counsel, to appoint an
expert witness, and for sanctions. Dockets 117, 130, 133,
139, 140, 146, 151, 153.
Motions for Temporary Restraining Order and Preliminary
filed motions for injunctive relief and temporary restraining
order. Dockets 146, 153. Brakeall asks the court to order
defendants to “refrain from inspecting, reading,
examining, or seizing the legal work or documents produced by
[Brakeall].” Docket 153 at 1. Brakeall further requests
that the court order defendants to not “retaliate
against [Brakeall] in any fashion for his access to the
courts or for his providing assistance to other
inmates.” Id. at 1-2. Finally, Brakeall
requests that the court review any disciplinary action
against Brakeall regarding his legal work or the assistance
he provides to other inmates. Id. at 2. Defendants
resist the motions. Dockets 147, 158, 161, 162.
preliminary injunction is an extraordinary remedy.”
Roudachevski v. All-American Care Ctrs., Inc., 648
F.3d 701, 705 (8th Cir. 2011) (citation omitted); see
also Hughbanks v. Dooley, 788 F.Supp.2d 988, 992 (D.S.D.
2011) (“[I]n the prison setting, a request for a
preliminary injunction ‘must always be viewed with
great caution because judicial restraint is especially called
for in dealing with the complex and intractable problems of
prison administration.' ”) (quoting Goff v.
Harper, 60 F.3d 518, 520 (8th Cir. 1995)). “The
burden of proving that a preliminary injunction should be
issued rests entirely with the movant.” Goff,
60 F.3d at 520.
a preliminary injunction should issue involves consideration
of (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
litigation; (3) the probability that movant will succeed on
the merits; and (4) the public interest.” Dataphase
Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th
Cir. 1981) (en banc). The Eighth Circuit held that “
‘the failure to show irreparable harm is, by itself, a
sufficient ground upon which to deny a preliminary
injunction.' ” Adam-Mellang v. Apartment
Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996) (quoting
Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418
(8th Cir. 1987)). Moreover, “in the prison context, a
request for injunctive relief must always be viewed with
great caution because ‘judicial restraint is especially
called for in dealing with the complex and intractable
problems of prison administration.' ”
Goff, 60 F.3d at 520 (quoting Rogers v.
Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)). And for an
injunction to issue “a right must be violated”
and that “the court must determine” whether
“a cognizable danger of future violation exists and
that danger must be more than a mere possibility.”
Goff, 60 F.3d at 520 (quoting Rogers v.
Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)).
inappropriate to grant a preliminary injunction for matters
“lying wholly outside the issues in the suit.”
De Beers Consol. Mines v. United States, 325 U.S.
212, 220 (1945). A plaintiff may not obtain a preliminary
injunction “based on new assertions of mistreatment
that are entirely different from the claim[s] raised and the
relief requested” in his underlying complaint.
Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
1994); see also Omega World Travel v. Trans World
Airlines, 111 F.3d 14, 16 (1997) (“[A] preliminary
injunction may never issue to prevent injury or harm which
not even the moving party contends was caused by the wrong
claimed in the underlying action.”); Kaimowitz v.
Orlando, 122 F.3d 41, 43 (11th Cir.1997) (“A
district court should not issue an injunction when the
injunction in question is not of the same character, and
deals with a matter lying wholly outside the issues in the
argues that he faces a threat of irreparable harm from prison
discipline and sanctions. Docket 146 at 2. Brakeall alleges
that defendants have repeatedly disciplined him for his
attempts to assist other inmates with legal matters or to
receive assistance from other inmates. Id. at 2.
Brakeall argues that this threatens his status in prison, the
possibility of parole, and his ability to effectively
alleges that defendants enforce a policy from a November 28,
2019 memo that inmates can help each other with legal work
but cannot be in possession of another inmate's legal
materials. Docket 146-1 at 3. Brakeall was written up and
found guilty of violating rule V-15, or the offense of
“[h]aving in your possession, living quarters, storage
area or work site any article or clothing not issued to you,
not purchased through commissary, or for which you do not
have special authorization . . . .” Id.
Brakeall claims that he was drafting an affidavit for another
inmate intended as part of Brakeall's case in
4:17-CV-4101-LLP. Id. Brakeall also had a letter for
another inmate because they were working together to send a
letter to the state legislature. Id.
and the other inmates may state a claim from being denied
access to the courts. The Supreme Court has held that prison
authorities cannot prohibit prisoners from helping each other
with legal matters unless they provide reasonable alternative
forms of assistance. Johnson v. Avery, 393 U.S. 483,
490 (1969). And in Bear v. Kautzky, 305 F.3d 802,
805 (8th Cir. 2002), the Eighth Circuit held that evidence of
inadequacy of the contract lawyer program supported an
injunction allowing assistance by jailhouse lawyers. The
preparation of legal documents is essential to accessing the
court from prison.
this case, Brakeall's claims involve failure to protect
and failure to adequately staff the SDSP. The access to the
courts issue is outside of the issues presented in this case.
The Eighth Circuit has considered the relationship
requirement in prisoner lawsuits. In Devose, an
inmate in state custody filed a complaint alleging that he
was being denied adequate medical treatment. 42 F.3d at 471.
While that case was pending, Devose sought an injunction to
stop prison officials from taking actions that constituted
retaliation for his filing of the lawsuit. Id. In
affirming the district court's denial of the requested
injunction, the Eighth Circuit stated:
Faced with a motion that raised issues entirely different
from those presented in Devose's complaint, the district
court concluded that Devose had failed to allege
circumstances that entitled him to a preliminary injunction,
and denied his motion without a hearing. Devose appeals and
A court issues a preliminary injunction in a lawsuit to
preserve the status quo and prevent irreparable harm until
the court has an opportunity to rule on the lawsuit's
merits. . . . Thus, 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 . . . . It is self-evident that
Devose's motion for temporary relief has nothing to do
with preserving the district court's decision-making
power over the merits of Devose's 42 U.S.C. § 1983
lawsuit. To the contrary, Devose's motion is based on new
assertions of mistreatment that are entirely different from
the claim raised and the relief requested in his inadequate
medical treatment lawsuit. Although these new assertions
might support additional claims against the same prison
officials, they cannot provide the basis for a preliminary
injunction in this lawsuit.
Id. (internal citations omitted). Brakeall's
motions for injunctive relief and temporary restraining order
(Dockets 146 ...