Gilbert-Mitchell v. Allred et al

Filing 23

ORDER Denying Motion for Preliminary Injunctive Relief. ORDERED that the Emergency Motion for a Temporary Restraining Order and Preliminary Injunction 6 is DENIED, by Judge Lewis T. Babcock on 1/15/13.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01997-BNB
WALLACE GILBERT-MITCHELL, JR.
Plaintiff.
V.
DAVID V. ALLRED, in his personal and professional capacities,
H. NEWCOMB, in his personal and professional capacities,
MS. INOUYE, in her personal and professional capacities,
CHARLIE A. DANIELS, in his personal and professional capacities,
J. RODRIGUES, in his personal and professional capacities,
ROBERT LEGGITT, in his personal and professional capacities,
THERESA MONTOYA, in her personal and professional capacities,
MS. MCDERMOTT, in her personal and professional capacities, and
THE UNITED STATES OF AMERICA, in tort,
Defendants.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

Plaintiff, Wallace Gilbert-Mitchell, Jr., is a federal prisoner who currently is
incarcerated at the United States Penitentiary in Florence, Colorado. He has filed pro
se a Prisoner Complaint pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), asserting violations of
his constitutional rights. Mr. Gilbert-Mitchell has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. The matter before the Court at this time is
Plaintiff’s Emergency Motion for a Temporary Restraining Order and Preliminary
Injunction (ECF No. 6), filed on August 20, 2012.
A temporary restraining order or preliminary injunction is an “extraordinary
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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)). To obtain a preliminary injunction,
the party seeking the injunction must demonstrate four factors:
(1) a substantial likelihood of success on the merits of the case; (2)
irreparable injury to the movant if the preliminary injunction is denied; (3)
the threatened injury to the movant outweighs the injury to the other party
under the preliminary injunction; and (4) the injunction is not adverse to
the public interest.
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.2001). A mandatory preliminary
injunction—one which requires the nonmoving party to take affirmative action—is
generally disfavored. Att'y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th
Cir. 2009). Before a court may grant such relief, the movant must “make a heightened
showing of the [ ] four factors.” Id.
Mr. Gilbert-Mitchell asserts in his motion that unidentified prison officials have
prohibited him from sending or receiving mail. However, this conduct is not challenged
in the Complaint, nor has Plaintiff sought leave to amend his Complaint to include the
new claim. See Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) (a movant for
preliminary injunctive relief must establish “‘a relationship between the injury claimed in
the party's motion and the conduct asserted in the complaint.’”) (quoting Devose v.
Herrington, 42 F.3d 470, 471 (8th Cir.1994)). Furthermore, Mr. Gilbert-Mitchell’s
allegations in the motion are not asserted against any of the Defendants named in the
Complaint. And, finally, the Plaintiff cannot show irreparable harm because the claimed
injury is not certain. The Court’s docketing system reflects that Mr. Gilbert-Mitchell filed
three motions for extension of time subsequent to his motion for preliminary injunctive
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relief. (See ECF Nos. 13, 17, 19). See Heideman v. S. Salt Lake City, 348 F.3d 1182,
1189 (10th Cir. 2003) (“To constitute irreparable harm, an injury must be certain, great,
actual ‘and not theoretical.’”) (internal quotation marks and citation omitted);
Fed.R.Civ.P. 65(b). The Court therefore finds that Mr. Gilbert-Mitchell’s allegations are
insufficient to support the issuance of a preliminary injunction. Accordingly, it is
ORDERED that the Emergency Motion for a Temporary Restraining Order and
Preliminary Injunction (ECF No. 6), filed on August 20, 2012, is DENIED.
DATED at Denver, Colorado, this 15th day of January, 2013.
BY THE COURT:

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

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