United States District Court, D. Oregon
TEMPORARY RESTRAINING ORDER
A. Heiandez, United States District Judge.
brings this civil action pro se. Currently before
the Court is Plaintiff's request for an emergency
temporary restraining order (ECF No. 1). For the reasons that
follow, the Court GRANTS Plaintiff's request.
is currently on post-prison supervision from a Washington
County Circuit Court conviction of Sexual Abuse in the First
Degree and Sexual Abuse in the Third Degree. One of the terms
of Plaintiff's post-prison release requires Plaintiff to
participate in an approved sex offender treatment program,
which may include polygraph and plethysmograph testing.
Another condition requires Plaintiff to participate “in
random polygraph examinations to obtain information for risk
management and treatment.”
is currently scheduled to appear for a polygraph examination
on February 6, 2018. Plaintiff alleges that Defendant Doohan
has threatened Plaintiff with further jail time if Plaintiff
refuses to participate in the polygraph, and that Defendant
Doohan has also threatened Plaintiff with further jail time
if he produces a “deceptive” polygraph test
result. Plaintiff argues Defendant Doohan's threats
constitute unconstitutional compulsion within the meaning of
the Fifth Amendment.
standard for a temporary restraining order (TRO) is
“essentially identical” to the standard for a
preliminary injunction. Chandler v. Williams, No. CV
08-962-ST, 2010 WL 3394675, at *1 (D. Or. Aug. 26, 2010)
(citing Stuhlbarg Int'l Sales Co., v. John D. Brushy
& Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001));
see also Daritech, Inc. v. Ward, No. CV-11-570-BR,
2011 WL 2150137, at * 1 (D. Or. May 26, 2011) (applying
preliminary injunction standard to motion for TRO).
plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.” Am.
Trucking Ass'ns Inc. v. City of L. A., 559
F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat.
Res. Defense Council, Inc., 555 U.S. 7, 21 (2008)). In
the Ninth Circuit, assuming the other elements of the
Winter test are met, a “sliding scale”
approach may be taken and “[a] preliminary injunction
is appropriate when a plaintiff demonstrates ... that serious
questions going to the merits were raised and the balance of
hardships tips sharply in the plaintiff's favor.”
Alliance for the Wild Rockies, 632 F.3d at 1131-35
(“‘serious questions' approach survives
Winter when applied as part of the four-element
Rule 65(b), a TRO may issue without notice to the opposing
party or its attorney, only if the movant shows (1) through
“specific facts in an affidavit or a verified
complaint” that “immediate and irreparable
injury, loss, or damage will result to the movant before the
adverse party can be heard in opposition[, ]” and (2)
that “the movant's attorney certifies in writing
any efforts made to give notice and the reasons why it should
not be required.” Fed.R.Civ.P. 65(b)(1).
a TRO may issue only if the movant “gives security in
an amount that the court considers proper to pay the costs
and damages sustained by any party found to have been
wrongfully enjoined or restrained.” Fed.R.Civ.P. 65(c).
However, while the rule's language indicates that
security is mandatory, the Ninth Circuit has held that”
Rule 65(c) invests the district court with discretion as to
the amount of security required, if any.” Johnson
v. Couturier, 572 F.3d 1067, 1085 (9th Cir. 2009)
(internal quotation marks omitted). The court “may
dispense with the filing of a bond when it concludes there is
no realistic likelihood of harm to the defendant from
enjoining his or her conduct.” Id. (internal
quotation marks omitted).
Court finds that, taking the allegations contained in
Plaintiff's verified Complaint as true, that Plaintiff
has raised serious questions going to the merits of his
claims, and that he has demonstrated that the balance of
hardships tips sharply in his favor. Plaintiff risks
immediate and irreparable harm if the polygraph occurs (or
Plaintiff refuses to participate in the polygraph) before the
Court can further consider Plaintiff's claims and obtain
the benefit of briefing from Defendants on the merits.
Moreover, the Court finds the impact of the relief requested
does not reach beyond the immediate parties or potentially
affect the public at this juncture. Finally, the Court
concludes there is no realistic likelihood of harm to the
Defendants from enjoining the conduct at hand, so the Court
dispenses with the filing of security. Accordingly, the Court
GRANTS Plaintiff's request for a temporary restraining
order and prohibits the polygraph examination currently
scheduled for February 6, 2018.
ORDERED that Defendants are hereby ENJOINED from conducting a
polygraph examination of Plaintiff ...