                                        NO.        96-503

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                1997




DANNY A.   ARLEDGE,

            Plaintiff         and Appellant,

           vs.

STATE OF MONTANA,          et.al,

            Defendants          and Respondents.




APPEAL   FROM:          District  Court of the Third   Judicial                   District,
                        In and for the County of Powell,
                        The Honorable   Ted L. Mizner,  Judge                 presiding.



COUNSEL OF RECORD:

            For    Appellant:

                        Danny A.    Arledge,            Deer   Lodge,   Montana     (pro      se)

            For    Respondent:

                        Lois   Adams,   David    L. Ohler,     Diana   P. Leibinger,
                        Department    of Corrections,      Helena,   Montana



                                          Submitted            on Briefs:    December         5,    1996

                                                                 Decided:    January          9,    1997
Filed:
                                               ;:" ‘2
Justice           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        be cited               as

precedent            and shall               be published                  by its            filing             as a public                     document

with       the      Clerk         of      the     Supreme            Court          and by a report                              of      its         result

to      Montana           Law Week,             State         Reporter              and West                   Publishing                    Company.

           This       is      an appeal                from         a July             29,        1996           Order            of      the         Third

Judicial           District             Court,          Powell           County,             denying             the        motion              of    Danny

A. Arledge                (Arledge)             for    a temporary                  restraining                      order.              We affirm.

                                                               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    the
Montana             State          Prison.                  At        the       conclusion                 of     the       hearing,                   Ax-ledge

orally           requested                   a temporary                      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         he was                 appealing               from         the       District                   Court's

denial           of      his      motion             for         preliminary                  injunction.

                                                                        Discussion

          Whether                the         matter              at      issue          involves                strictly                   a motion               for

temporary                  restraining                      order              and/or           a       request                 for            preliminary

injunction                 is     somewhat                 confused.                    What is            apparent              is        that        Arledge

petitioned                 for         some sort                 of      injunctive                 relief          pending                    prosecution

of    this        lawsuit               and that             request                was ultimately                      denied.                 We address

the      trial           court's              decision                 and Arledge's                    appeal             in     this            context.

          The sole                issue            before             this       Court        is     whether              the         District              Court

abused           its      discretion                  when it                denied          Arledge's             motion              for          temporary

or       preliminary                         injunctive                      relief.                 The         grant                or        denial             of

injunctive                 relief              is         a discretionary                           ruling           of         the         trial           court

which         we will                  not      overturn                     absent          an abuse              of       discretion.                           The

party            seeking               injunctive                      relief            must           prove           his           right            to         the

injunction.                      Smith         v.     Electronic                    Parts,          Inc.         (1995),              274 Mont.               252,

256,         907 P.Zd              958,             960      (citing              Sebena           v.      State           (1994),                267 Mont.

359,         366,         883          P.2d         1263,             1267).            See also                First           Brands              Corp.          v.

Fred      Meyer,                Inc.         (9th         Cir.         1987),           809 F.2d                1378,         1381.


                                                                                    3
          Inasmuch             as Arledge's              Amended           Complaint          was filed                pursuant                  to

42     U.S.C.       5 1983,             the     District            Court         properly          concluded                    that,           in

the      context          of     this         action,         a temporary               restraining                   order              is      an

extraordinary                    remedy,            requiring               demonstration                   of         exceptional

circumstances                   and     a clear          showing           of     necessity           for        protection                      of

constitutional                   rights.            See NAACP v.                  Gallion        (5th       Cir.           1961),             290

F.2d      331,      342         (vacated         on other           grounds).

          As to 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 § 1983 action                    as follows:

                  The factors         we traditionally           consider      in determining
          whether      to grant a preliminary              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.         To obtain     a preliminary          injunction,
          the moving         party     must show either             (1) a combination               of
          probable        success      on the merits           and the possibility                  of
          irreparable          injury       or    (2) that        serious      questions          are
          raised      and the balance             of hardships         tips     in his favor.
          These two formulations                represent       two points        on a sliding
          scale     in which the required               degree        of irreparable           harm
          increases        as the 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         be direct,             real       and immediate,                   and not             conjectural                     or



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

itself           show              a present                       case          or      controversy                       regarding                  injunctive

relief           .      .    . if           unaccompanied                             by any            continuing,                     present              adverse

effects."                    Los        Angeles                   v.       Lyons             (1983),            461 U.S.                95,          101-02,            103

S.Ct.        1660,            1665,             75 L.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                   on the              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      he has failed                            to    show that                    there          are        serious             questions                 raised;

and that               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.

          The essence                         of        Arledge's                  demand             for          injunctive                  relief,             as he

frames           it,         is        that         the            respondents                      have,            and will             in         the      future,

punish           him         for        use         of       the          prison             grievance                   system.              The testimony

given       at         the         May 2,               1996 hearing                         on Arledge's                     motion            was anything

but      conclusive,                      however.                        While          Arledge               contended                that          he was the

subject                of     retaliatory                              disciplinary                     action,                he       also           agreed            on

cross-examination                               that           he was not                     retaliated                     against             since            he was

                                                                                         5
not      found           guilty            of the         Class            2 misconduct                   violations                 with          which      he

was       charged                    but      rather                 he      was       found              guilty               of         lesser,           and

relatively                     insignificant,                         Class            3     violations.                            Moreover,               the

evidence                 on what            Arledge                stated        to     the        correctional                      officers              that

prompted              the        disciplinary                      write-up           in     the        first           place        was disputed.

There          is         no         evidence             that            we can            glean            from         the            record,           save

Arledge's                 own conclusory,                          speculative               and conjectural                         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     no evidence

of     any           direct,               real          and         immediate               threat               of     injury              or      of     any

continuing,                     present             adverse               effects           suffered               by Arledge.

          In         short,            on basis                of     our        review           of      the          record            submitted            to

this      Court               on appeal,             we agree                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               or preliminary                       injunctive                relief

in     this          case.             Accordingly,                   we hold              that        the      District                 Court      did     not

abuse          its            discretion                 in        refusing            to         grant           Arledge's                 motion          for

temporary                 or     preliminary                       injunctive               relief.

          Affirmed.




                                                                                 6
we concur:
