Faircloth v. Schwartz, et al

Filing 41

ORDER Denying Amended Motion for Injunctive Relief. ORDERED that the Amended Motion and Re-Petition for T.R.O./Preliminary Injunction and Protection Order for Witnesses 39 is denied, by Judge Lewis T. Babcock on 12/28/12.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02764-BNB
JAMES FAIRCLOTH,
Plaintiff,
v.
CELIA SCHWARTZ,
WARDEN J. DAVIS,
MAJOR D. COTTEN,
CAPT. R. FISHER,
LT. A. HYSJULIEN, and
OTHER KNOWN AND UNKNOWN C.D.O.C. EMPLOYEE(S),
Defendants.

ORDER DENYING AMENDED MOTION FOR INJUNCTIVE RELIEF

This matter is before the Court on the “Amended Motion and Re-Petition for
T.R.O./Preliminary Injunction and Protection Order for Witnesses” (ECF No. 39) filed
pro se by Plaintiff, James Faircloth, on December 17, 2012. The preliminary injunctive
relief Mr. Faircloth seeks is a transfer to another prison facility and a protective order
that prevents retaliation by staff and other inmates who have witnessed violations of his
constitutional rights.
The Court must construe the amended motion seeking a preliminary injunction
liberally because Mr. Faircloth 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 amended motion will be denied.

Mr. Faircloth is a prisoner in the custody of the Colorado Department of
Corrections (DOC) at the Buena Vista Correctional Facility in Buena Vista, Colorado.
The operative pleading in this action is a Prisoner Complaint pursuant to 42 U.S.C. §
1983 filed by Mr. Faircloth in which he alleges that his constitutional rights have been
violated. On December 10, 2012, the Court entered an order denying two motions filed
by Mr. Faircloth seeking preliminary injunctive relief because Mr. Faircloth failed to
make the necessary showing to justify a preliminary injunctive and, in particular, he
failed to demonstrate he would suffer irreparable injury if no preliminary injunction was
issued.
In the amended motion, Mr. Faircloth alleges that he has suffered the following
irreparable injuries: (1) he was harassed by a prison official on November 17 and 24,
2012; (2) he was subjected to two “pat-down searches of a nature that alarmed him,
due to the hand knifing to the genital area” (ECF No. 39 at 2) between November 3 and
November 17, 2012; (3) the prison law librarian prevented him from filing an affidavit in
a pending case in Colorado state court in a timely manner on November 28, 2012; (4)
he was removed from the general prison population in a discriminatory manner on
November 30, 2012; and (5) he was convicted of the prison disciplinary offenses of
advocating a facility disruption and disobeying a lawful order without adequate due
process on December 11, 2012.
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
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public interest. See Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). “Because a
preliminary injunction is an extraordinary remedy, the right to relief must be clear and
unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir.
2003).
“[T]he 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. Faircloth 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.
“[A] showing of probable irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction.” Dominion Video Satellite, Inc.
v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004). Thus, Mr. Faircloth
“must first demonstrate that such injury is likely before the other requirements for the
issuance of an injunction will be considered.” Id.
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)
(internal quotation marks omitted). Therefore, Mr. Faircloth “must establish both that
harm will occur, and that, when it does, such harm will be irreparable.” Vega v. Wiley,
259 F. App’x 104, 106 (10th Cir. 2007). Furthermore, a party seeking preliminary
injunctive relief “must show that the injury complained of is of such imminence that there
is a clear and present need for equitable relief to prevent irreparable harm.” Heideman,
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348 F.3d at 1189. A preliminary injunction is only appropriate “to prevent existing or
presently threatening injuries. One will not be granted against something merely feared
as liable to occur at some indefinite time in the future.” Connecticut v. Massachusetts,
282 U.S. 660, 674 (1931).
Mr. Faircloth fails to demonstrate, clearly and unequivocally, that he is entitled to
preliminary injunctive relief. In particular, Mr. Faircloth’s vague and conclusory
allegations in the amended motion regarding harassment and other past events do not
demonstrate he will suffer future injury that is irreparable if no preliminary injunction is
issued. Therefore, the amended motion will be denied. Accordingly, it is
ORDERED that the “Amended Motion and Re-Petition for T.R.O./Preliminary
Injunction and Protection Order for Witnesses” (ECF No. 39) is denied.
DATED at Denver, Colorado, this 28th day of

December

, 2012.

BY THE COURT:

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

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