applying preliminary injunction standards when deciding whether to issue a temporary restraining order
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- applying preliminary injunction standards when deciding whether to issue a temporary restraining order
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The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
DOCKET NO. 1:20-CV-00088-MOC-WCM
JESSE NOAL SHOWS, )
)
Plaintiff, )
vs. )
) ORDER
SWAIN COUNTY SHERIFF CURTIS, )
COCHRAN, in his official capacity, )
)
Defendant. )
_______________________________________)
THIS MATTER comes before the Court on Plaintiff’s pro se Motion for Issuance of a
Temporary Restraining Order prohibiting the Swain County Sheriff from further enforcing the
“Fourth Supplemental Declaration of a Local State of Emergency for Swain County North
Carolina – Restricting Movement of All Individuals in Swain County and Establishing a Curfew.”
See Doc. No. 3. As discussed below, Plaintiff’s motion is denied.
On April 7, 2020, the Board of Commissioners of Swain County issued a declaration,
recognizing that COVID-19 “has created a state of emergency in the County of Swain.” Doc. No.
3-2 at 2. Hoping to “slow viral transmission as much as possible to protect the most vulnerable
and to prevent our local health care system from being overwhelmed,” the declaration instituted a
curfew that prohibits individuals from being “in a public place . . . or establishment . . . between
the hours of 10:00 p.m. to 6:00 a.m.” except for a few essential exceptions. Id. at 3. Those who
violate the curfew are guilty of a Class 2 misdemeanor, id. at 3, which is punishable by a maximum
penalty of sixty days’ imprisonment and a $1,000 fine. See N.C. Gen. Stat. § 15A-1340.23.
In his motion, Plaintiff asserts that the Sherriff has aggressively enforced the declaration.
See Doc. No. 3-1 at 2. In fact, Plaintiff alleges he was stopped by the Sheriff’s Deputy while he
was returning from the neighboring county in his personal motor vehicle. See id. at 3. According
to Plaintiff, he was stopped solely for violating the curfew. See id. And, ultimately, he received
a citation for the violation. See id. Plaintiff maintains that the declaration and his citation violate
rights and liberties guaranteed by the Privileges and Immunities Clause, as well as the First, Fourth,
Fifth, and Fourteenth Amendments to the United States Constitution. See id. at 5. Thus, he
requests a temporary restraining order prohibiting the Sheriff from enforcing the declaration.
Like a preliminary injunction, a temporary restraining order is “an extraordinary remedy
that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter
v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008); see, e.g., Natera, Inc. v. Bio-Reference Labs.,
Inc., No. 16-CV-9514, 2016 WL 7192106, at *2 (S.D.N.Y. Dec. 10, 2016) (applying preliminary
injunction standards when deciding whether to issue a temporary restraining order). A party
seeking a temporary restraining order “must establish that he is likely to succeed on the merits,
that he likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tip in his favor, and that the injunction is in the public interest.” Winter, 555 U.S. at 20.
In this case, the pro se Plaintiff has failed to make a clear showing that he is entitled to such
relief. As the Supreme Court has explained, “liberty itself, the greatest of all rights, is not [an]
unrestricted license to act according to one’s will.” Jacobson v. Commonwealth of Massachusetts,
197 U.S. 11, 26–27 (1905). Indeed, “liberty for all could not exist under the operation of a
principle which recognizes the right of each individual person to use his own, whether in respect
of his person or his property, regardless of the injury that may be done to others.” Id. Therefore,
“[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be
deemed by the governing authority of the country essential to the safety, health, peace, good order,
and morals of the community.” Id. at 26. Plaintiff has failed to establish that the declaration is
unreasonable and unnecessary to protect the public health, so his motion is denied at this time.
ORDER
IT IS, THEREFORE, ORDERED that Plaintiff's pro se Motion for Issuance of a
Temporary Restraining Order, Doc. No. 3, is DENIED.
Signed: April 23, 2020
p-crvrnne<
Max O. Cogburn i &
United States District Judge Felgen