Carbajal et al v. Morrissey et al

Filing 94

ORDER Adopting Recommendation of United States Magistrate Judge. Recommendation of United States Magistrate Judge 38 , is APPROVED and ADOPTED. The objections stated in Plaintiffs Contemporaneous Objection to Magistrate Mix's Recommendation 38 87 , are OVERRULED. Plaintiffs' Petition for Federal Injunction Pursuant to Fed. R. Civ. P.65 4 , is DENIED by Judge Robert E. Blackburn on 06/04/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12–cv–03231–REB–KLM
VICTORIA CARBAJAL,
DEAN CARBAJAL, and
LUIS LEAL,
Plaintiffs,
v.
MITCHELL R. MORISSEY, District Attorney for the Second Judicial District, in his
official and individual capacities,
JEFFREY WATTS, Investigator for the Second Judicial District, in his official and
individual capacities,
ROBERT FULLER, Investigator for the Second Judicial District, in his official and
individual capacities,
REBEKAH MELNICK, Deputy District Attorney for the Second Judicial District, in her
official and individual capacities,
LARA MULLIN, Deputy District Attorney for the Second Judicial District, in her official
and individual capacities,
MILES FLESCHE, District Administrator and Clerk for the Second Judicial District, in his
official and individual capacities,
KEITH CRISWELL, Deputy Court Clerk for the Second Judicial District, in his official
and individual capacities,
ANNE MANSFIELD, District Court Judge for the Second Judicial District, in her official
and individual capacities,
KEEFER, Deputy Sheriff for the Denver Detention Center, in his official and individual
capacities,
MICHAEL SIMPSON, Detective for the Denver Police Department, in his official and
individual capacities,
JAY LOPEZ, Detective for the Denver Police Department, in his official and individual
capacities,
RICHARD HAGAN, Detective for the Denver Police Department, in his official and
individual capacities,
CAROL DWYER, a co-conspirator with the Second Judicial District Attorney’s Office, in
her official and individual capacities,
WELLS FARGO, a corporation,
BRIAN BERARDINI, a co-conspirator with the Second Judicial District Attorney’s Office,
in his individual capacity, and
JOHN SUTHERS, Attorney General for the State of Colorado, in his official and
individual capacities,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matters before me are (1) the Recommendation of United States
Magistrate Judge [#38],1 filed February 28, 2013; and (2) Plaintiffs’
Contemporaneous Objection to Magistrate Mix’s Recommendation [Doc. #38]
[#87], filed April 18, 2013. I overrule the objection, approve and adopt the
recommendation, and deny the apposite motion.
The plaintiffs are proceeding pro se. Thus, I have construed their pleadings more
liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167
L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519,
520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed. I have considered carefully the
recommendation, objections, and applicable caselaw.
The recommendation is detailed and well-reasoned. Contrastingly, plaintiffs’
objections are imponderous and without merit. A preliminary injunction is an
extraordinary remedy that should only be granted when the moving party clearly and
unequivocally demonstrates necessity. See Schrier v. University of Colorado, 427

1

“[#38]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

2

F.3d 1253, 1258 (10th Cir. 2005). In addition to the four requirements for injunctions
generally, id., the movant also “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 v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.
2003) (citation and internal quotation marks omitted). In other words, to demonstrate
irreparable harm, plaintiffs “must establish both that harm will occur, and that, when it
does, such harm will be irreparable.” Vega v. Wiley, 259 Fed. Appx, 104, 106 (10th Cir.
Dec. 17, 2007), cert. denied, 128 S.Ct. 2069 (2008).
As the magistrate judge adroitly noted, plaintiffs have failed to show such a threat
of imminent and irreparable injury. Although plaintiffs suggest that Mr. Carbajal
allegedly faces irreparable injury based on a theory of continuing infringement of his civil
rights, “there is no evidentiary support for [their] broad, conclusory allegations other than
their self-serving statements.” (Recommendation at 9.)2 By thus failing to specify any
injury that is “certain, great, actual and not theoretical,” Heideman, 348 F.3d at 1189
(citation and internal quotation marks omitted), plaintiffs’ request for relief must be
denied.3
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#38], filed
February 28, 2013, is APPROVED and ADOPTED as an order of this court;

2

The magistrate judge noted also that plaintiffs’ description of the irreparable harm they allegedly
face in this case is essentially identical to that they alleged in another case in which Dean Carbajal is a
party plaintiff. See Carbajal v. Warner et al., Civil Action No. 10-cv-02862-REB-KLM. Mr. Carbajal’s
motion for injunctive relief was denied in that case also, for reasons similar to those found dispositive here.
(See Order Adopting Recommendation of United States Magistrate Judge [#446], filed March 6,
2013.)
3

In addition, plaintiffs’ request for injunctive relief implicates defendants who are not named in the
complaint, and who thus are not presently within the jurisdiction of the court.

3

2. That the objections stated in Plaintiffs’ Contemporaneous Objection to
Magistrate Mix’s Recommendation [Doc. #38] [#87], filed April 18, 2013, are
OVERRULED; and
3. That plaintiffs’ Petition for Federal Injunction Pursuant to Fed. R. Civ. P.
65 [#4], filed December 26, 2012, is DENIED.
Dated June 4, 2013, at Denver, Colorado.
BY THE COURT:

4