Banks v. Arapahoe County Detention Center et al

Filing 24

ORDER Denying Motion for Preliminary Injunction and Granting Motion for Extention of Time. ORDERED that the portion of the combined motion titled "Motion for Preliminary Injunctive Relief" 23 is denied. FURTHER ORDERED that the portion of the combined motion titled and "Motion for an 'Extension' to Amend Complaint" 23 is granted. FURTHER ORDERED that Mr. Banks will be allowed thirty (30) days from the date of this order in which to submit an amended complaint, by Judge Lewis T. Babcock on 12/10/12.(sgrim, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02014-BNB
TORREY V. BANKS,
Plaintiff,
v.
ARAPAHOE COUNTY DETENTION CENTER,
CHIEF WALCHER OF A.C.S.O.
LIEUTENANT KNIGHT OF A.C.S.O.,
SUPERVISOR LIBRARIAN SHEILA CLARK OF A.C.S.O.,
CAPTAIN JOHN DOE OF A.C.S.O., and
DEPUTY KRAUS OF A.C.S.O., Disciplinary Board Member,
DEPUTY GALLEGOS OF A.C.S.O. (Disciplinary Board Member),
DEPUTY JOHN DOE #1 (Disciplinary Board Member),
SERGEANT JOHN DOE OF A.C.S.O.,
ERIN, Librarian Employee of A.C.S.O.,
DEPUTY BENDICROFT of the A.C.S.O.,
DEPUTY JOHN DOE #2 of the A.C.S.O. (Disciplinary Board Member),
DEPUTY JOHN DOE #3 of the A.C.S.O. (Disciplinary Board Member),
OFFICER JANE DOE of Lakewood Police Department,
OFFICER JOHN DOE #1 of Lakewood Police Department, and
OFFICER JOHN DOE #2 of Lakewood Police Department,
Defendants.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AND
GRANTING MOTION FOR EXTENSION OF TIME

Plaintiff, Torrey V. Banks, currently is incarcerated at the Jefferson County
Detention Facility in Golden, Colorado. He initiated this action by filing pro se a twentyeight-page Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 for money
damages and declaratory and injunctive relief. On November 8, 2012, Magistrate
Judge Boyd N. Boland ordered Mr. Banks to file within thirty days an amended
complaint that sued the proper parties and complied with the pleading requirements of

Rule 8 of the Federal Rules of Civil Procedure. ECF No. 20.
On December 6, 2012, Mr. Banks filed an eleven-page combined motion titled
“Motion for Preliminary Injunctive Relief” and “Motion for an ‘Extension’ to Amend
Complaint” (ECF No. 23). The Court has done its best to comprehend and summarize
the December 6 motions.
In addition to providing a five-page background on the procedural status of this
case, Mr. Banks contends the United States Marshals Service did not return him to his
original place of confinement upon the conclusion of his criminal case in this Court.
United States v. Banks, No. 02-cr-00109-WYD-1 (D. Colo. Dec. 17, 2009). In that case,
Mr. Banks’ supervised release was revoked and he was ordered imprisoned for eleven
months. He contends not being returned to his original place of confinement
jeopardizes his ability to litigate the instant action effectively because he has been
ordered to file an amended complaint with this Court by December 8, 2012. ECF No.
23 at 6. He also refers to exhibits which are not attached to the motion for a preliminary
injunction.
The Court must construe the motions liberally because Mr. Banks 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 for a preliminary injunction will be denied. The motion for an
extension of time will be granted.
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,
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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). Similarly, a
party seeking a temporary restraining order must demonstrate clearly, with specific
factual allegations, that immediate and irreparable injury will result unless a temporary
restraining order is issued. See Fed. R. Civ. P. 65(b).
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 Mr. Banks 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.
Mr. Banks’ allegations do not demonstrate a substantial likelihood of prevailing
on the merits, that he will suffer irreparable injury if no preliminary injunction is issued,
that his threatened injuries outweigh whatever damage the proposed injunction may
cause the opposing party, or that a preliminary injunction would not be adverse to the
public interest. Therefore, the motion for injunctive relief will be denied. However, Mr.
Banks’ motion for an extension of time in which to file the amended complaint will be
granted.
Accordingly, it is
ORDERED that the portion of the combined motion titled “Motion for Preliminary
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Injunctive Relief” (ECF No. 23) that Plaintiff, Torrey V. Banks, filed on December 6,
2012, is denied. It is
FURTHER ORDERED that the portion of the combined motion titled and “Motion
for an ‘Extension’ to Amend Complaint” that Mr. Banks filed on December 6 is granted.
It is
FURTHER ORDERED that Mr. Banks will be allowed thirty (30) days from the
date of this order in which to submit an amended complaint that complies with the
order of November 8, 2012. Failure to do so within the time allowed will result in the
dismissal of the instant action.
DATED at Denver, Colorado, this 10th day of

December

, 2012.

BY THE COURT:

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

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