Hunter v. Wands

Filing 7

ORDER. ORDERED that the motion for a Preliminary Injunction 2 filed on 10/13/11 is denied, by Judge Lewis T. Babcock on 11/17/11.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02664-BNB
DARIAN L. HUNTER,
Applicant,
v.
J. WANDS, Warden, Federal Correctional Institution (F.C.I.), Florence,
Respondent.

ORDER

This matter is before the Court on Applicant’s motion for a preliminary injunction
(Doc. #2) filed on October 13, 2011. Applicant is a prisoner in the custody of the United
States Bureau of Prisons (“BOP”) at the Federal Correctional Institution in Florence,
Colorado. Applicant initiated this action by filing an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 challenging the computation of his sentence and
the amount of time he will be placed in a halfway house upon his release. In the motion
for a preliminary injunction, Applicant apparently seeks an order directing Respondent
to advance the date on which he is scheduled to be released from prison to a halfway
house.
The Court must construe the motion liberally because Applicant is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated

below, the motion will be denied.
A party seeking a preliminary injunction must show a substantial likelihood of
prevailing on the merits, that he will suffer irreparable injury unless the injunction issues,
that the threatened injury outweighs whatever damage the proposed injunction may
cause the opposing party, and that the injunction, if issued, would not be adverse to the
public interest. See Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). A
preliminary injunction is an extraordinary remedy and “the primary goal of a preliminary
injunction is to preserve the pre-trial status quo.” RoDa Drilling Co. v. Siegal, 552 F.3d
1203, 1208 (10th Cir. 2009). Therefore, “courts should be especially cautious when
granting an injunction that requires the nonmoving party to take affirmative action - a
mandatory preliminary injunction - before a trial on the merits occurs.” Id. Because
Applicant is seeking a mandatory preliminary injunction that seeks to alter the status
quo, he must make a heightened showing of the four factors listed above. See id. at
1209.
The Court finds that Applicant has not made a sufficient showing that he is
entitled to issuance of a preliminary injunction in the instant action. The Applicant fails
to make the necessary showing with respect to any of the four factors because the
substance of the claim he is asserting regarding halfway house time is not clear.
Instead, Applicant alleges only that he is being denied due process because his home
confinement eligibility date is January 7, 2012, and Respondent has not acted in
accordance with 18 U.S.C. § 3624(c)(1). This vague and conclusory allegation does not
demonstrate that Applicant’s rights have been violated in any way with respect to his

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pending transfer to a halfway house. Therefore, the motion for a preliminary injunction
will be denied. Accordingly, it is
ORDERED that the motion for a Preliminary Injunction (Doc. #2) filed on October
13, 2011, is denied.
DATED at Denver, Colorado, this

17th

day of

November

, 2011.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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