Winkler v. Wilson et al
ORDER denying 22 Motion to Appoint Counsel ; denying 23 Motion for Mandamus Relief, by Judge Lewis T. Babcock on 2/28/12.(lsw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03324-BNB
SHAWN MANDEL WINKLER,
JOHN DOE 1, Hospital Duty Officer,
JOHN DOE 2, Hospital Duty Officer,
WESLY WILISON, Case Manager Supervisor,
ROBERT DICK, Case Manager,
SGT. BRADSHAW, Housing Officer,
CORRECTIONAL OFFICER LOZIER,
KEVIN MILYARD, Warden at time, and
TOM CLEMENTS, Executive Director,
individually and in their official capacities,
MANUFACTURES [sic] OF THE BANDIT TASER DEVICE,
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
AND FOR APPOINTMENT OF COUNSEL
Plaintiff, Shawn Mandel Winkler, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Sterling
Correctional Facility in Sterling, Colorado. He submitted pro se a Complaint pursuant to
28 U.S.C. § 1343 and 42 U.S.C. § 1983, asserting violations of his constitutional rights.
He requests monetary relief. Mr. Winkler has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915.
On January 17, 2012, Magistrate Judge Boland directed Mr. Winkler to file an
Amended Complaint within thirty days, for reasons set forth in the Order. After
receiving an extension of time, Mr. Winkler filed an Amended Complaint on February 7,
On February 24, 2012, Mr. Winkler filed a “Motion for Mandamus Relief” (Doc. #
23), and a “Motion for Appointment of Counsel” (Doc. # 22). The Court will construe Mr.
Winkler’s filings liberally because Mr. Winkler 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. The Court construes Mr. Winkler’s “Motion for Mandamus
Relief” as a motion for a temporary restraining order. For the reasons stated below, the
motion will be denied.
A temporary restraining order or preliminary injunction is an “extraordinary
remedy” and, therefore, “the right to relief must be clear and unequivocal.” Schrier v.
Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (quoting SCFC ILC, Inc. v. Visa
USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991)). The decision to grant injunctive relief
is a matter of the Court’s discretion. See Gen. Motors Corp. v. Urban Gorilla, LLC, 500
F.3d 1222, 1226 (10th Cir.2007) (noting that the Tenth Circuit reviews denials of
preliminary injunctions for abuse of discretion). To obtain a preliminary injunction, the
movant must show that the movant will suffer irreparable harm if the injunction is
denied. Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1258
(10th Cir. 2004). “To constitute irreparable harm, an injury must be certain, great, actual
‘and not theoretical.’” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.
2003); Fed.R.Civ.P. 65(b).
Mr. Winkler asserts in his motion for temporary restraining order that he has
limited access to the computers in the law library at Sterling Correctional Facility, and
this lack of access is hindering his ability to proceed in this action. He requests that he
be allowed to access the law library for three days per week. He also requests that his
facility assign him a “work station” in the law library and that his facility develop a
program which will allow him to send his legal documents for printing without prison
officials first opening the documents.
Mr. Winkler has failed to allege specific facts to demonstrate that he is
threatened with immediate and irreparable injury at this time. Specifically, Plaintiff has
not shown that the asserted problems concerning the law library at his facility have
resulted in “actual injury” by “frustrat[ing],” “imped[ing],” or “hinder[ing] his efforts to
pursue a [non-frivolous] legal claim.” Lewis v. Casey, 518 U.S. 343, 351-53 and n.3
(1996); see also Simkins v. Bruce, 406 F.3d 1239, 1243-44 (10th Cir. 2005) (under
Lewis, cognizable harm arises when the plaintiff's efforts to pursue an arguable claim
are impeded). Plaintiff’s allegations concerning interference with his legal documents
are conclusory and cannot support an award of injunctive relief under Fed. R. Civ. P.
65(b) (request for temporary restraining order must be supported by specific facts).
Furthermore, while access to law libraries or effective legal assistance are
constitutionally acceptable methods of assuring meaningful access to the courts, see
Bounds v. Smith, 430 U.S. 817, 828 (1977), the Constitution does not guarantee
prisoners “an abstract, freestanding right to a law library or legal assistance.” Lewis,
518 U.S. at 351. Mr. Winkler states that he has only been allowed to the law library
twice to access his documents. Motion at 2. Under Bounds and Casey, Mr. Winkler is
entitled to a “reasonably adequate opportunity to file nonfrivolous legal claims
challenging [his] . . . conditions of confinement.” Casey, 581 U.S. at 356; see also
Carper v. DeLand, 54 F.3d 613, 616 (10th Cir.1995) (legal assistance is constitutionally
sufficient when provided by non attorneys trained in the law such as inmate law clerks,
paralegals, or law students). At this juncture, Mr. Winkler has not demonstrated that
prison officials at Sterling Correctional Facility have denied him that capability. Indeed,
Mr. Winkler filed an Amended Complaint, as directed by Magistrate Judge Boland, on
February 7, 2012.
Accordingly, the Court finds that Mr. Winkler is not under any immediate threat
of having the instant lawsuit dismissed because he lacks a reasonably adequate
opportunity to file non-frivolous legal claims challenging the conditions of his
confinement. As such, Mr. Winkler has failed to demonstrate an entitlement to a
temporary restraining order or preliminary injunctive relief. Accordingly, it is
ORDERED that Mr. Winkler’s “Motion for Mandamus Relief” (Doc. # 23), filed
February 24, 2012, which the Court has construed liberally as a Motion for Temporary
Restraining Order, is DENIED. It is
FURTHER ORDERED that the “Motion for Appointment of Counsel” (Doc. # 22),
filed February 24, 2012, is DENIED.
DATED at Denver, Colorado, this 28th
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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