Robert K. Decker v. BRIAN LAMMER, Warden

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 5, 2022*
Decided January 14, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-1328
ROBERT K. DECKER,
Plaintiff-Appellant,
v.
BRIAN LAMMER, Warden,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:20-cv-00135-JRS-DLP
James R. Sweeney II,
Judge.
O R D E R
Robert Decker, a federal prisoner, appeals the district court’s interlocutory order
denying his request for injunctive relief. Because the court correctly concluded that
Decker could not demonstrate some likelihood of success on the merits, we affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 21-1328 Page 2
Decker has a long history of abusing his phone privileges. Because of that
history, he is housed at Federal Correctional Institution, Terre Haute’s Communication
Management Unit—a high-security wing that closely monitors inmates’ interactions
with the outside world. By March 2020, he had received nine phone-abuse incident
reports for, among other things, making unauthorized calls when given permission to
call his son and using other prisoners’ phone accounts. His prison’s warden, Brian
Lammer, responded by restricting Decker’s phone privileges to a single 15-minute call
per month; Lammer has since granted Decker’s request for a second call each month.
On March 5, 2020, Decker sued Lammer under 42 U.S.C. § 1983 for retaliating
against him, in violation of the First Amendment, because of lawsuits and grievances he
had filed. Decker sought injunctive relief that would prevent Lammer from limiting his
phone access.
On March 15, 2020, Decker moved for what he called a temporary restraining
order, seeking to enjoin Lammer from restricting his phone usage until Lammer
answered that motion or his complaint. Decker argued that he was likely to succeed on
the merits of his motion, given his high risk of death from COVID-19, Lammer’s lack of
proof that he abused his phone privileges, and the tension between the prison’s
restrictions and a Michigan court’s child-visitation order allowing Decker to speak with
his son twice weekly by phone and once monthly by video.
Three months later, at screening, see 28 U.S.C. § 1915A, the court ordered
Lammer to respond to Decker’s motion (which Lammer did, but he took 95 days to do
so after he was served). Over the ensuing five months, Decker filed three more motions
for a temporary restraining order or a “temporary injunction/restraining order.”
In January 2021, the district court denied the motion. In doing so, it drew upon
this court’s identically worded test for a preliminary injunction. See HH-Indianapolis,
LLC v. Consol. City of Indianapolis & Cnty. of Marion, 889 F.3d 432, 437 (7th Cir. 2018). The
court also quoted a portion of the Prison Litigation Reform Act that stressed the need to
tailor preliminary injunctive relief to the alleged harm. See 18 U.S.C. § 3626(a)(2).
Ultimately, the court determined that Decker could not satisfy one of the prerequisites
for a preliminary injunction—a likelihood of success on the merits—because his
conclusory assertions of retaliation were rebutted by Lammer’s evidence, which
included Decker’s call records and misconduct reports. And, the court concluded,
Decker’s COVID-19 argument was unrelated to phone access.

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No. 21-1328 Page 3
On appeal, Decker argues that he does have some likelihood of success on the
merits because Lammer is bound by the Michigan court’s visitation order. The warden,
however, raises a threshold argument: If this is an appeal from the denial of a motion
for a temporary restraining order (rather than a preliminary injunction), then this court
lacks jurisdiction because a temporary restraining order is not appealable under
28 U.S.C. § 1292(a)(1). See Cnty., Mun. Emps.' Supervisors' & Foreman's Union Local 1001
v. Laborers' Int'l Union of N. Am., 365 F.3d 576, 578 (7th Cir. 2004). Lammer argues that
Decker's motion should be treated as a request for a temporary restraining order
because Decker referred to is as such, the district court referred to it as such even
though it referenced the standards for preliminary injunctive relief, the court did not
hold a hearing, and the length of the court’s order was more appropriate for a
temporary restraining order than a preliminary injunction. Decker responds that he did
not know the difference between the two types of relief at the time of his motion.
To distinguish a preliminary injunction from a temporary restraining order,
courts look to the substance of the relief sought and the district court’s handling of the
motion. See Sampson v. Murray, 415 U.S. 61, 86–88 (1974); Geneva Assurance Syndicate, Inc.
v. Med. Emergency Servs. Assocs. (MESA) S.C., 964 F.2d 599, 600 (7th Cir. 1992). The
essence of a temporary restraining order is “its brevity, its ex parte character, and … its
informality.” Geneva, 964 F.2d at 600. Moreover, the name given to the motion by the
court or the parties is not determinative; otherwise, courts could evade review by
characterizing a preliminary injunction as a temporary restraining order. See Abbott v.
Perez, 138 S. Ct. 2305, 2319–20 (2018); Doe v. Vill. of Crestwood, 917 F.2d 1476, 1477
(7th Cir. 1990).
The district court’s handling of Decker’s motion and the substance of the relief he
sought suggest that his motion should be construed as a request for a preliminary
injunction. Most notably, the court’s eight-month delay in ruling on the motion is
inconsistent with a request for a temporary restraining order. And the court did not
issue its order ex parte: It gave notice to Lammer, solicited briefing, and even allowed
Lammer to extend the deadline for his response. Further, the court cited precedent and
gave reasons for its denial, as would be required if it were denying preliminary
injunctive relief. See F ED. R. C IV. P. 52(a)(2). The length of the injunction Decker
requested is also consistent with a motion for a preliminary injunction. A temporary
restraining order may not exceed 14 days without good cause. See FED. R. C IV. P.
65(b)(2). Yet Decker sought an injunction potentially lasting until Lammer answered the
complaint, something that Lammer had 21 days to do once he was served. See F ED. R.
C IV. P. 12(a)(1)(A)(i).

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No. 21-1328 Page 4
As for the merits of his motion (which we will treat as a request for preliminary
injunctive relief), Decker argues that the district court erred by failing to recognize that
Lammer was bound by the Full Faith and Credit Clause to comply with the Michigan
court’s order. But we agree with the district court that Decker cannot show some chance
of success on the merits. See Cassell v. Snyders, 990 F.3d 539, 545 (7th Cir. 2021). Decker
offers nothing to overcome Lammer’s evidence that the phone restrictions were
triggered by Decker’s documented history of circumventing the prison’s phone rules.
Further, Lammer is not bound to comply with the Michigan court’s order because he
was not a party to the state litigation.
AFFIRMED

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