Carbajal et al v. Morrissey et al

Filing 245

ORDER by Magistrate Judge Kristen L. Mix on 2/26/15. Motion for Leave to Have a Legal Box for Each of the Plaintiff's Cases That Are Presently being Litigated [#243]is DENIED without prejudice.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03231-REB-KLM
DEAN CARBAJAL
Plaintiff,
v.

ANDREW KEEFER, in his individual capacity,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Leave to Have a Legal Box
for Each of the Plaintiff’s Cases That Are Presently being Litigated [#243]1 (the
“Motion”). Defendant did not file a Response. For the reasons stated below, the Motion
[#243] is DENIED without prejudice.
I. Background
Plaintiff, who is proceeding pro se,2 is presently incarcerated by the Colorado

1

“[#243]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

The Court must construe the filings of a pro se litigant liberally. 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 the pro se litigant’s advocate, nor should the Court “supply additional factual
allegations to round out [the pro se litigant’s] complaint or construct a legal theory on [his] behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
In addition, pro se litigants must follow the same procedural rules that govern other litigants.
Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

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Department of Corrections (“CDOC”) at Arkansas Valley Correctional Facility. He states
that he is currently litigating multiple cases (six cases in federal court and three cases in
state court) and that the volume of written legal materials he has acquired for each case
exceeds the volume of the single 2' x 3' legal box he is permitted to have by CDOC. He
asserts that CDOC staff have asked Plaintiff to obtain an order from the Court permitting
two additional 2' x 3' boxes for his legal materials. In short, although he does not use the
terminology, Plaintiff seeks injunctive relief.
The amount of space permitted for legal materials kept by offenders incarcerated
in CDOC facilities is governed by Administrative Regulation 850-06(IV)(G)(3)(a). This
regulation provides:
A 2.0 cubic foot box for legal papers [is permitted], which is available for sale
through the DOC Canteen. In the interest of effective property management
and fire safety concerns, facilities shall limit the amount of personal legal
papers that an offender may maintain in his/her possession to a maximum
of two cubic feet. It is the offender’s responsibility to determine what legal
papers he/she will retain to comply with this restriction. Excess legal material
shall not be stored by any facility, nor shall anything other than legal papers
be stored in this box. Property found stored within a legal box deemed not
personal legal papers shall be considered contraband.
The Tenth Circuit has found that “prison rules permitting inmates two-cubic feet of legal
materials in their cells [are] ‘reasonable and necessary for orderly maintenance of the
facility and proper security.’” Green v. Johnson, 977 F.2d 1383, 1390 (10th Cir. 1992)
(citing Cruz v. Hauck, 515 F.2d 322, 333 (5th Cir. 1975) (finding that the restriction of legal
materials in cell was reasonable in light of security and fire dangers)).
II. Legal Standard
Fed. R. Civ. P. 65(a) and (b) govern preliminary injunctions and temporary
restraining orders. “Where the opposing party has notice, the procedure and standards for
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issuance of a temporary restraining order mirror those for a preliminary injunction.” Emmis
Commc'ns Corp. v. Media Strategies, Inc., No. 00-WY-2507CB, 2001 WL 111229, at *2 (D.
Colo. Jan. 23, 2001) (citing 11A Charles Alan Wright, et al., Federal Practice and
Procedure § 2951 (2d ed.1995)). Here, because Defendants were given notice and an
opportunity to respond, the Court analyzes the Motion under the standards for issuance of
a preliminary injunction.
Injunctive relief is an extraordinary remedy that should only be granted when the
moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ.
of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). In the Tenth Circuit, a party requesting
injunctive relief must clearly establish the following: (1) the party will suffer irreparable injury
unless the injunction issues; (2) the threatened injury outweighs whatever damage the
proposed injunction may cause the opposing party; (3) the injunction, if issued, would not
be adverse to the public interest; and (4) there is a substantial likelihood of success on the
merits. Id. It is well-established that “[b]ecause a showing of probable irreparable harm
is the single most important prerequisite for the issuance of a preliminary injunction, the
moving party must first demonstrate that such injury is likely before the other requirements
for the issuance of an injunction will be considered.” Dominion Video Satellite, Inc. v.
Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (citations omitted).
“The purpose of a preliminary injunction is to preserve the relative positions of the
parties until a trial on the merits can be held.” Bray v. QFA Royalties LLC, 486 F. Supp.
2d 1237, 1241 (D. Colo. 2007) (citing Univ. of Texas v. Camenisch, 451 U.S. 390, 395
(1981)). “The purpose of a preliminary injunction is not to remedy past harm but to protect
plaintiffs from irreparable injury that will surely result without their issuance.” Schrier, 427
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F.3d at 1267. Moreover,
[b]ecause the limited purpose of a preliminary injunction is merely to preserve
the relative positions of the parties until a trial on the merits can be held, we
have identified the following three types of specifically disfavored preliminary
injunctions . . . (1) preliminary injunctions that alter the status quo; (2)
mandatory preliminary injunctions; and (3) preliminary injunctions that afford
the movant all the relief that [he] could recover at the conclusion of a full trial
on the merits.
Id. at 1258-59 (citations omitted).

These disfavored injunctions are “more closely

scrutinized to assure that the exigencies of the case support the granting of a remedy that
is extraordinary even in the normal course.” Id. at 1259.
III. Analysis
As noted above, Plaintiff seeks an injunction requiring CDOC to allow him to obtain
two additional legal boxes.3 Thus, the relief Plaintiff seeks would alter the status quo rather
than preserve it and would also require CDOC, a non-party, to act. Therefore, the
injunctive relief sought by Plaintiff “constitutes a specifically disfavored injunction” that
“must be more closely scrutinized.” Schrier, 427 F.3d at 1261. Accordingly, the Motion
must be denied unless Plaintiff's “right to relief [is] clear and unequivocal.” Id. at 1258.
The law is well-established that prison management functions should be left to the
broad discretion of prison administrators to enable them to manage prisons safely and
effectively. See, e.g., Meachum v. Fano, 427 U.S. 215 (1976). Courts should grant
injunctive relief involving the management of prisons only under exceptional and compelling
circumstances. Taylor v. Freeman, 34 F.3d 266, 269-70 n.2 (4th Cir. 1994); see also

3

According to Administrative Regulation 850-06(IV)(G)(3)(a), Plaintiff must purchase legal
boxes from his facility’s canteen. Plaintiff does not appear to take issue with this. The requested
injunction merely seeks permission to have and store two additional legal boxes which Plaintiff
would presumably purchase himself.

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Citizens Concerned for Separation of Church & State v. Denver, 628 F.2d 1289, 1299 (10th
Cir. 1980). Indeed, the Court of Appeals for the Tenth Circuit has stated that it “abhor[s]
any situation or circumstance requiring the intervention of the federal courts in matters
involving the administration, control and maintenance by the sovereign states of their penal
systems. It is a delicate role assigned to the federal courts to display that restraint so
necessary in the maintenance of proper federal-state relations.” Battle v. Anderson, 564
F.2d 388, 392 (10th Cir. 1977) (quotation omitted).

As such, “intervention in the

management of state prisons is rarely appropriate when exercising the equitable powers
of the federal courts. . . . [This] is especially true where mandatory injunctive relief is
sought and only preliminary findings as to the plaintiff's likelihood of success on the merits
have been made.” Taylor, 34 F.3d at 269 (citations omitted).
As noted, Plaintiff seeks an order against a non-party. The Tenth Circuit applies a
heightened standard for litigants seeking injunctive relief against non-parties. Andrews v.
Andrews, 160 F. App'x 798, 800 (10th Cir. 2005). “While the non-party status of an
injunction's target may [not] be a conclusive impediment, it nevertheless heightens the
hurdle that must be cleared to obtain the injunction: not only must the motion advance
considerations satisfying the traditional injunction factors . . . but those considerations must
also constitute . . . ‘appropriate circumstances’ . . . to justify issuing an injunction against
a non-party.” Id. The “appropriate circumstances” referred to by the Andrews court require
a non-party to be “in a position to frustrate [or facilitate] the implementation of a court order
or the proper administration of justice.” Id. at 799 (quoting United States v. N.Y. Tel. Co.,
434 U.S. 159, 174 (1977)).
To obtain injunctive relief, Plaintiff must first show that he will suffer irreparable harm
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if his request for injunctive relief is denied. Schrier, 427 F.3d at 1258. “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) (quoting Wis. Gas Co. v. FERC,
758 F.2d 669, 674 (D.C. Cir. 1985)). Irreparable harm is more than “merely serious or
substantial” harm. Id. (citation omitted). The party seeking the preliminary injunction “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.” Id. (quotation omitted). Therefore,
to demonstrate irreparable harm, Plaintiff “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). Finally, an injunction is only appropriate “to prevent existing or presently
threatened 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).
The Court finds that Plaintiff has failed to show that he will suffer irreparable harm
if his request for injunctive relief is denied. See, e.g., Whitington v. Zavaras, No. 06-cv00759-LTB-CBS, 2010 WL 2541125, at *5-7 (D. Colo. May 20, 2010) (denying request for
additional space to store legal material because the incarcerated plaintiff failed to meet the
required elements for injunctive relief). Plaintiff has failed to show that future injury is
certain or even likely. The Court concludes that Plaintiff's conjectural and unsubstantiated
allegations fail to demonstrate a risk of harm that is more than “merely serious or
substantial.” Heideman, 348 F.3d at 1189. Given that (1) there is no evidentiary support
for Plaintiff's conclusory allegations, and (2) even if the allegations are true they do not
establish that irreparable injury is imminent, injunctive relief should be denied. See
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Sampson v. Murray, 415 U.S. 61, 91-92 (1974) (inferring that the failure to show irreparable
injury is sufficient ground, by itself, to deny injunctive relief); Dominion, 356 F.3d at 1260
(noting that without irreparable harm, injunctive relief is not available). Because Plaintiff
has not asserted facts sufficient to meet the traditional injunction standard, the heightened
standard applied to non-parties is certainly not met here.4 See Garcia v. Chamjock, No.
11-cv-00263-PAB-MEH, 2011 WL 7429425, at *7 (D. Colo. Dec. 20, 2011) (finding that the
plaintiff's allegations against non-parties that restrooms were unsanitary and “infectious”
were insufficient to meet the required heightened standard that he suffered an irreparable
injury).
However, although Plaintiff has not provided enough information to the Court to
warrant injunctive relief, Plaintiff’s limited allegations suggest that this may be a situation
where it may be appropriate to issue an injunction against non-party CDOC because CDOC
is “in a position to frustrate [or facilitate] the implementation of a court order or the proper
administration of justice.” Andrews, 160 F. App'x at 799 (quoting N.Y. Tel. Co., 434 U.S.
at 174). At least three of Plaintiff’s six federal lawsuits (10-cv-02862-REB-KLM, 12-cv-02257REB-KLM, and 12-cv-03231-REB-KLM) partially survived motions to dismiss and progressed

to the discovery stage, where there may be voluminous records produced already or that
may be produced in the future.5 Further, trial is set in two of Plaintiff’s federal lawsuits (12cv-02257-REB-KLM and 12-cv-03231-REB-KLM). Although the Court takes no position on the

4

Because Plaintiff fails to demonstrate irreparable harm, the Court declines to address the
other factors regarding the issuance of a preliminary injunction.
5

Two more federal cases are still in the initial review stage: 14-cv-02880-GPG and 14-cv2926-GPG.

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ultimate merit of Plaintiff’s lawsuits, CDOC may be in a position frustrate “the proper
administration of justice” in this case by severely limiting the amount of legal material
Plaintiff may keep to properly litigate his claims where, as here, Plaintiff has successfully
entered later stages of litigation in multiple lawsuits.
Thus, the Court will provide Plaintiff with an additional opportunity to make his
request.

If he chooses to do so, he must address each of the above-mentioned

prerequisites for entry of an injunctive order. As part of his discussion, he must: (1)
estimate how many inches of documents he presently possesses for each of his lawsuits
and describe the types of documents he possesses in detail, (2) explain what types of
documents and estimate how many inches of documents he reasonably expects to
generate or receive for each of his lawsuits in the future, and (3) explain why he cannot
discard enough unnecessary documents to meet his presently allowed box.
IV. Conclusion
Accordingly, the Motion [#243] is DENIED without prejudice.

Dated: February 26, 2015

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