MacDermott v. Shelabarger

Background

Troy MacDermott filed a self-described ex parte motion for an emergency temporary restraining order. He asked the court to separate Benjaman Shelabarger, also identified as Benjamin Shelabarger, from witnesses who had submitted witness statements on MacDermott’s behalf. MacDermott said he sought the order without notice because he was concerned Shelabarger might act violently or otherwise do something against one of the witnesses. He stated that he intended to serve Shelabarger with the motion after the court ruled.

Court’s analysis

Federal Rule of Civil Procedure 65(b)(1) allows a temporary restraining order without notice only when specific facts in an affidavit or verified complaint clearly show that immediate and irreparable harm will occur before the opposing party can be heard, and when the moving party’s attorney certifies in writing the efforts made to provide notice and the reasons notice should not be required.

The court found that MacDermott did not meet either requirement. He did not provide an affidavit, and the court found that his general statements did not establish immediate and irreparable harm. Although he expressed concern that Shelabarger might threaten or harm witnesses, he did not allege facts showing that threatening or violent conduct had occurred or provide another factual basis for that concern. He also did not submit the required written certification about notice. The court further stated that the request implicated prison administration, an area requiring judicial restraint.

Ruling

The court denied MacDermott’s motion for a temporary restraining order. It also directed the Clerk of Court to unseal the motion and mail it to Shelabarger, finding no basis to keep it sealed because the request lacked sufficient support and MacDermott had said he intended to serve Shelabarger after the ruling.