Ordinarily a federal lawsuit goes on for months or years before the court reaches any decision. But you may need help from the court long before that. A U.S. District Court Judge has the power to order prison officials to stop doing certain things while the judge is considering your suit. The judge can do this by issuing a Temporary Restraining Order (TRO) or a Preliminary Injunction, or both.
Chapter Four, Section B explains when you are eligible for an injunction. If you decide to go ahead and try to get a preliminary injunction or a TRO, you will need to follow the instructions below.
If you think you meet all the tests for immediate help from the court, submit a “Temporary Restraining Order and Order to Show Cause for a Preliminary Injunction.” You can do this in one motion and you can use this example:
Explanation of Form:
If you want a TRO, include the parts of this form that are more darkly shaded. If you do not want a TRO and are only asking for a preliminary injunction leave the darker parts out.
You will notice that you are supposed to leave some blanks in this document. That is because it is an order that the Judge will sign, and you are just writing a draft for the Judge to make it easier. He or she will fill in the information about times and places.
The most difficult part of the document is where you have to fill in why you want a preliminary injunction and / or a TRO. You should limit what you ask for in the TRO to the things that the prison officials have to stop doing immediately. Include in your request for a preliminary injunction everything you want the court to order the prison staff to stop doing while the court is considering your case.
There are other documents you must send to the court. You will also need to give or send copies of all these documents to all of the defendants. The supporting documents you need to attach to both the court’s and defendant’s copies are:
- A declaration which states how you tried to notify the defendant that you’re applying for a TRO, like by giving a copy of the documents to the warden. Or, your declaration can explain why you shouldn’t have to notify the defendant. The declaration should also state in detail exactly what “immediate and irreparable injury, loss or damage will result” if the court does not sign your TRO. The quote is from Rule 65 of the Federal Rules of Civil Procedure, which governs TROs and preliminary injunctions. A court will often consider an ongoing violation of your constitutional rights to be an “irreparable injury.” Submit your declaration and your “TRO and Order to Show Cause” together with your summons, complaint and in forma pauperis papers.
- You also need to submit a short “memorandum of law.” A memorandum of law is a document in which you cite legal cases, and argue that your situation should be compared to or distinguished from these cases. For this, you will need to do legal research and writing, explained in Chapter Seven. You will want to find cases similar to yours in which prisoners got TROs or preliminary injunctions. Cite a few cases that show that the officials’ actions (or failures to act) are unconstitutional. Also explain how you meet the test for temporary relief.
If the judge signs your TRO and Order to Show Cause, the prison staff will be restrained for at least 10 days. They will have to submit legal papers to show why the court should not issue a preliminary injunction that will be in force through the suit. You will be sent a copy of their legal papers and get a chance to respond to them.
The judge should consider the legal papers submitted by both sides. He or she is not supposed to meet with lawyers representing prison officials unless he or she appoints a lawyer for you or orders prison officials to bring you to court to argue your own case.
Political pressure and media publicity may be as important as your suit itself, and they may help you win your suit. Send copies of your legal papers to prison groups, legislators, other public officials, newspapers, radio, TV, etc. Enclose a brief note explaining what your suit is about and why it is important.
Under Rule 65(c) of the Federal Rules of Civil Procedure, a plaintiff who requests a TRO or a preliminary injunction is supposed to put up money as “security” to repay the defendants for any damages they suffer if it later turns out that they were “wrongfully enjoined or restrained.” This is up to the judge’s discretion, which means he or she will look at your situation and decide whether or not you should have to pay. Some judges will not make people who file in forma pauperis pay. In Miller v. Carlson, 768 F. Supp. 1331, 1340 (N.D. Cal 1991), for example, the plaintiffs were poor people who received AFDC (Aid for Families with Dependant Children) so the judge did not make them pay security. Look for more decisions in your circuit, and cite those cases in your memorandum of law and ask the court not to require security from you.