Rainey v. No Named Defendant

Filing 8

ORDER denying 7 Motion for Temporary Restraining Order and Preliminary Injunction for Being Denied Due Process of Law, and Access to the Court and D.C. Colo. L. Civ. R. 7.1 by Judge Lewis T. Babcock on 9/3/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01916-BNB
JOHN RAINEY,
Plaintiff,
v.
[NO DEFENDANTS NAMED],
Defendants.

ORDER

This matter is before the Court on the “Motion for Temporary Restraining Order
and Preliminary Injunction for Being Denied Due Process of Law, and Access to the
Court and D.C. Colo. L. Civ. R. 7.1” (ECF No. 7) filed pro se by Plaintiff, John Rainey.
The Court must construe the motion liberally because Mr. Rainey 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
will be denied.
Mr. Rainey is a prisoner in the custody of the Colorado Department of
Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Rainey
initiated this action by submitting a letter to the Court (ECF No. 1) complaining about the
conditions of his confinement and apparently seeking judicial relief. The instant action
was commenced and, on July 19, 2013, Magistrate Judge Boyd N. Boland entered an

order (ECF No. 3) directing Mr. Rainey to cure certain deficiencies within thirty days if
he wishes to pursue any claims in this action. Specifically, Magistrate Judge Boland
ordered Mr. Rainey to file a Prisoner Complaint and to either pay administrative and
filing fees totaling $400.00 or file a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915. On August 14, 2013, Magistrate Judge Boland entered a
minute order (ECF No. 5) granting Mr. Rainey’s request for blank copies of the forms
necessary to cure the deficiencies and extending the time to cure the deficiencies.
Mr. Rainey has not cured any of the deficiencies in this action. He alleges in the
motion for a temporary restraining order or preliminary injunction that he is seeking a
temporary restraining order or preliminary injunction because he is being prevented
from exhausting administrative remedies with respect to the claims he intends to raise in
this action. Mr. Rainey also requests an extension of time to cure the deficiencies and
to be provided with another blank copy of the court-approved Prisoner Complaint form
because the prison law library will make only one copy.
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
public interest. See Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). Similarly, a
temporary restraining order is appropriate only if “specific facts in an affidavit or a
verified complaint clearly show that immediate and irreparable injury, loss, or damage
will result to the movant before the adverse party can be heard in opposition.” Fed. R.
Civ. P. 65(b)(1)(A).
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The Court finds that Mr. Rainey fails to demonstrate he is entitled to issuance of
either a preliminary injunction or a temporary restraining order. For one thing, Mr.
Rainey has not filed a proper pleading in this action that identifies clearly who he intends
to sue and that provides a short and plain statement of the specific claims for relief he
intends to pursue. More importantly, Mr. Rainey fails to demonstrate he will suffer
immediate and irreparable injury if he is prevented from exhausting administrative
remedies. “Where prison officials prevent, thwart, or hinder a prisoner’s efforts to avail
himself of an administrative remedy, they render that remedy ‘unavailable’ and a court
will excuse the prisoner’s failure to exhaust.” Little v. Jones, 607 F.3d 1245, 1250 (10th
Cir. 2010).
For these reasons, the motion for a temporary restraining order or preliminary
injunction will be denied. However, Mr. Rainey will be granted one more extension of
time to cure the deficiencies in this action. The Court will not provide another blank
copy of the court-approved Prisoner Complaint form because Mr. Rainey’s allegation
that the law library will make only one copy does not demonstrate he does not have
access to the necessary form. Accordingly, it is
ORDERED that Plaintiff’s “Motion for Temporary Restraining Order and
Preliminary Injunction for Being Denied Due Process of Law, and Access to the Court
and D.C. Colo. L. Civ. R. 7.1” (ECF No. 7) is denied. It is

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FURTHER ORDERED that Plaintiff shall have thirty (30) days from the date of
this order to cure the deficiencies in this action as directed.
DATED at Denver, Colorado, this

3rd

day of

September

, 2013.

BY THE COURT:

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

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