NO. 96-503 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1997

DANNYA. ARLEDGE,

Plaintiff andAppellant,
vs. STATEOFMONTANA, et.al,

Defendants andRespondents.

APPEAL FROM: District Court of the Third Judicial District,

In andfor the County of Powell, TheHonorable Ted L. Mizner, Judge presiding.

COUNSELOFRECORD:

For Appellant: DannyA. Arledge, Deer Lodge, Montana (pro se) For Respondent: Lois Adams, David L. Ohler, Diana P. Leibinger, Department of Corrections, Helena, Montana

Filed: Submitted onBriefs: December 5, 1996 Decided: January 9, 1997 ;:"‘2Justice James C. Nelson delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, this decision shall not becited as precedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andbyareport of its result to Montana LawWeek, State Reporter andWest Publishing Company. This is anappeal from aJuly 29, 1996 Order of the Third Judicial District Court, Powell County, denying the motion of Danny A.Arledge (Arledge) for atemporary restraining order. Weaffirm. Background Arledge, an inmate law clerk, pro se, filed in the Montana Third Judicial District Court, Powell County, his complaint alleging personal injury and violations of 42 U.S.C. 5 1983. Arledge claims that various Department of Corrections employees unlawfully retaliated against him in connection with his preparation for other inmates' grievances against prison staff. After amending his complaint, Arledge filed a motion for a temporary restraining order requesting that the District Court restrain the prison authorities from administratively disciplining him. A hearing was held on Arledge's motion on May 2, 1996. Arledge appeared, represented himself, and testified. The Defendants appeared by counsel and offered testimony through Wil.liam Perry, Unit Manager for the Maximum Security Uni.t at theMontana State Prison. At the conclusion of the hearing, Ax-ledge

orally requested atemporary restraining order issue pending the court's decision on preliminary injunctive relief. The court orally declined any temporary relief. Arledge's motion for a temporary restraining order was subsequently denied by written order dated July 29, 1996. Arledge timely filed a notice of appeal, stating that hewas appealing from the District Court's denial of his motion for preliminary injunction. Discussion Whether the matter at issue involves strictly amotion for temporary restraining order and/or a request for preliminary injunction is somewhat confused. What is apparent is that Arledge petitioned for somesort of injunctive relief pending prosecution of this lawsuit andthat request wasultimately denied. Weaddress the trial court's decision andArledge's appeal in this context. Thesole issue before this Court is whether the District Court abused its discretion whenit denied Arledge's motion for temporary
or preliminary injunctive relief. The grant or denial of injunctive relief is adiscretionary ruling of the trial court which wewill not overturn absent anabuse of discretion. The party seeking injunctive relief must prove his right to the injunction. Smith v. Electronic Parts, Inc. (1995), 274Mont. 252, 256, 907 P.Zd 958, 960 (citing Sebena v. State (1994), 267 Mont. 359, 366, 883 P.2d 1263, 1267). Seealso First Brands Corp. v. Fred Meyer, Inc. (9th Cir. 1987), 809 F.2d 1378, 1381.
3Inasmuch asArledge's Amended Complaint wasfiled pursuant to

42 U.S.C. 51983, the District Court properly concluded that, in the context of this action, atemporary restraining order is an extraordinary remedy, requiring demonstration of exceptional circumstances and aclear showing of necessity for protection of constitutional rights. SeeNAACPv. Gallion (5th Cir. 1961), 290 F.2d 331, 342 (vacated onother grounds). Asto preliminary injunctive relief the federal district court in McClaflin v. Pearce (D.Or. 1990), 739 F. Supp. 537, set forth the applicable standards for the issuance of a preliminary injunction in a§1983action asfollows:

Thefactors wetraditionally consider in determining whether to grant apreliminary injunction in this circuit are (1) the likelihood of plaintiff's success on the merits; (2) the possibility of plaintiff's suffering irreparable injury if relief is not granted; (3) the extent to which the balance of hardships favors the respective parties; and (4) in certain cases, whether the public interest will be advanced by the provision of preliminary relief. Toobtain apreliminary injunction, the moving party must show either (1) acombination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised andthe balance of hardships tips in his favor. These two formulations represent two points onasliding scale in which the required degree of irreparable harm increases asthe probability of success decreases. McClaflin, 739 F.Supp. at 539 (quoting United States v. Odessa Union Warehouse Co-op (9th Cir. 1987), 833 F.2d 172, 174). Moreover, the United States Supreme Court has stated that, with respect to the requirement of irreparable harm, the threat of injury must bedirect, real and immediate, andnot conjectural or

4hypothetical. "[Plast exposure to illegal conduct does not in

itself show apresent case or controversy regarding injunctive relief

. . . if unaccompanied byany continuing, present adverse effects." Los Angeles v. Lyons (1983), 461U.S. 95, 101-02, 103 S.Ct. 1660, 1665, 75L.Ed.2d 675, 684 (citations omitted). Here, the District Court concluded that Arledge had not met his burden of proof in that he had failed to show that his probability of success onthe merits of his suit was high and in that he had failed to show irreparable injury. The court also concluded that Arledge's allegations are speculative; that any future harm is dependent upon actions solely within his control; that hehasfailed to showthat there are serious questions raised; andthat the balance of hardships tip in his favor. On the matter at issue here and without drawing any conclusions one way or the other about the merits of Arledge's underlying suit, we agree with the trial court that neither temporary (nor preliminary) injunctive relief is merited in this
case.Theessence of Arledge's demand for injunctive relief, ashe frames it, is that the respondents have, andwill in the future, punish him for use of the prison grievance system. Thetestimony given at the May2, 1996 hearing onArledge's motion wasanything but conclusive, however. While Arledge contended that hewasthe subject of retaliatory disciplinary action, he also agreed on cross-examination that hewasnot retaliated against since hewas
5not found guilty ofthe Class 2misconduct violations with which he

was charged but rather he was found guilty of lesser, and relatively insignificant, Class 3 violations. Moreover, the evidence onwhat Arledge stated to the correctional officers that prompted the disciplinary write-up in the first place wasdisputed. There is no evidence that wecan glean from the record, save Arledge's ownconclusory, speculative andconjectural statements to the contrary, that he will suffer irreparable harm or be the subject of future unlawful treatment or violation of his constitutional rights by prison officials if temporary or preliminary injunctive relief is not granted. There is noevidence of any direct, real and immediate threat of injury or of any continuing, present adverse effects suffered byArledge. In short, onbasis of our review of the record submitted to this Court onappeal, weagree with the District Court that Arledge failed in his burden to demonstrate the sort of exceptional circumstances and clear necessity that would justify the extraordinary remedy of temporary orpreliminary injunctive relief in this case. Accordingly, wehold that the District Court did not abuse its discretion in refusing to grant Arledge's motion for temporary or preliminary injunctive relief. Affirmed.

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### weconcur: