Bayson v. Southeast Community College

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD B. BAYSON,
Plaintiff,
vs.
SOUTHEAST COMMUNITY
COLLEGE, et al.,
Defendants.
8:25-CV-575
ORDER
The plaintiff has submitted two motions that the Court reads as, at least
in part, requesting a temporary restraining order against one or more of the
defendants. Filing 3; filing 14. To the extent the plaintiff is requesting
injunctive relief before completing service of process, that request is denied.
Briefly summarized, the plaintiff's operative pleadings allege he was a
nursing student at Southeast Community College, but received unqualified
instruction and was treated unfairly by the defendants, resulting in his
withdrawal from the program. See filing 1; filing 7; filing 8; filing 9; filing 10.1
He's requesting immediate injunctive relief due to his financial circumstances.
See filing 14. Specifically, he wants to be readmitted to the nursing program,
permitted to resume coursework and clinicals, and restored to eligibility for
federal aid. Filing 14 at 1. He explains that he has submitted summons forms
to the sheriff's office but service is still pending. Filing 14 at 1.
1 Pursuant to NECivR 15.1(b), "[i]n considering pro se litigants' amended pleadings, the court
may consider the amended pleading as supplemental to, rather than as superseding, the
original pleading."
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But the Court may issue a temporary restraining order without written
or oral notice to the adverse party or its attorney only if
(A) specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result
to the movant before the adverse party can be heard in opposition;
and
(B) 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). Neither requirement is met here.
The burden of establishing the necessity of a temporary restraining order
is on the movant. Baker Electric Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th
Cir. 1994); Mod. Comput. Sys., Inc. v. Mod. Banking Sys., Inc., 871 F.2d 734,
737 (8th Cir. 1989) (en banc); Bennett v. Guardian Real Est., L.L.C., No. 8:07-
CV-345, 2007 WL 2688646, at *2 (D. Neb. Sept. 10, 2007). But the plaintiff has
presented no competent evidence of the facts allegedly supporting a temporary
restraining order, because none of the plaintiff's submissions appear to be
sworn or subscribed under penalty of perjury. See 28 U.S.C. § 1746.
Accordingly, there is no "affidavit" or "verified complaint" before the Court
upon which the Court could base its order, as required by Rule 65(b)(1)(A). See
Jenkins v. Winter, 540 F.3d 742, 747 (8th Cir. 2008); Tweeton v. Frandrup, 287
F. App'x 541, 541 (8th Cir. 2008); Elder-Keep v. Aksamit, 460 F.3d 979, 984
(8th Cir. 2006); Schneider v. Chertoff, 245 F.R.D. 422, 424 (D. Neb. 2007).
Nor has the plaintiff provided any basis for the Court to rule without
notice to the defendants. It is well-established that a temporary restraining
order is an emergency remedy which should only be issued in exceptional
circumstances. Zidon v. Pickrell, 338 F. Supp. 2d 1093, 1094-95 (D.N.D. 2004).
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Nothing in the plaintiff's filings meets his burden to explain why notice should
not be required. Simply put, the Court cannot issue a restraining order,
without notice to the party being restrained, without a good reason for doing
so. The plaintiff has not provided one.
The Court will, therefore, deny the plaintiff's motion for pre-service
injunctive relief. To the extent filing 14 also asks the Court for a preliminary
injunction—that is, injunctive relief after service of process but before
judgment on the merits—the Court will take that up after the defendants are
served with process and have respond to the plaintiff's motion.
IT IS ORDERED:
1. The plaintiff's "Motion for Expedited Review for Interim
Relief" (filing 3) is denied.
2. The plaintiff's "Emergency Motion for Preliminary
Injunction and Immediate Relief" (filing 14) is denied in
part.
3. The defendants shall respond to the plaintiff's motion for
preliminary injunction (filing 14) within 14 days of effective
service of process.
Dated this 6th day of November, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
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