Johnson v. Western State Colorado University et al

Filing 47

ORDER denying 2 Plaintiffs Motion for Preliminary Injunction; The Courts Temporary Restraining Order ECF Nos. 37 & 44 shall EXPIRE on its own terms, by Judge William J. Martinez on 11/18/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2747-WJM-KMT
KEIFER JOHNSON,
Plaintiff,
v.
WESTERN STATE COLORADO UNIVERSITY,
BRAD BACA, in his official capacity as president of Western State Colorado University,
GARY PIERSON, in his official capacity as Vice President Student Affairs & Dean of
Students, and
SARA PHILLIPS, individually, and in her official capacity as Title IX Coordinator,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Plaintiff Keifer Johnson brings this action against Western State University and
some of its employees under 42 U.S.C. § 1983, alleging that disciplinary proceedings
brought against him violate his due process rights. (ECF No. 1.) Before the Court is
Plaintiff’s Motion for Preliminary Injunction (“Motion”). (ECF No. 2.) For the reasons set
forth below, the Motion is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
For purposes of the instant Motion, the Court accepts the facts pled in the
Plaintiff’s Complaint as true. The facts necessary to resolve the Motion are set forth
below.
Plaintiff Keifer Johnson is a student at Western State University (the
“University”). During the 2012-13 school year, he was a teaching assistant for English

102. (Compl. (ECF No. 1) ¶ 12.) Onna Gould was a student in that class. (Id. ¶ 14.)
In mid-May 2013, Plaintiff and Ms. Gould began a sexual relationship. (Id. ¶ 16.)
The relationship was heavily influenced by a book each had read entitled “Fifty
Shades of Grey” and, based on their interest in this book, they engaged in role play,
bondage, and “light sado-masochism”. (Id. ¶¶ 27-29.) In June 2013, Plaintiff sent Ms.
Gould a letter that included graphic references to sado-masochistic sexual acts that he
would like to perform with Ms. Gould (the “June Letter”). (ECF No. 42-2 at 11-21.)
Plaintiff ended the relationship with Ms. Gould in late July 2013. (Compl. ¶ 38.)
On August 17, 2013, Plaintiff was informed that he would not be able to continue
as a teaching assistant for the fall semester. (Id. ¶ 41; see also ECF No. 42-2 at 7.)
Plaintiff was directed to contact the University’s Student Affairs Office if he had any
questions as to why this decision had been made. (Id.)
On August 20, 2013, Plaintiff went to see Gary Pierson, Vice President of
Student Affairs and Dean of Students for the University. (Compl. ¶ 43.) Mr. Pierson
interviewed Plaintiff about his relationship with Ms. Gould, including the June Letter.
(Id.) Mr. Pierson explained the University’s policies concerning student conduct, as well
as its obligations under Title IX of the Education Amendments of 1972, 20 U.S.C. §
1681. (Id. ¶ 47.)
Over the next few days, Plaintiff’s parents, Kathy and Keith Johnson, had
conversations with Mr. Pierson and Chris Luekenga, the University’s Associate Vice
President for Student Affairs. (Compl. ¶¶ 49-51.) University officials suggested that the
complaint received had not come directly from Ms. Gould, and suggested that it may

2

have come from her mother. (Id. ¶ 49.) Mr. Pierson informed the Johnsons that he
believed this incident would result in counseling for Plaintiff. (Id. ¶ 51.)
On Friday, August 23, 2013, Plaintiff went to the University cafeteria and, in the
presence of a food service worker, removed Ms. Gould’s expired student identification
card from his wallet. (Compl. ¶ 52.) Ms. Gould’s card was confiscated, and the incident
was reported to the University by the cafeteria operator. (Id.)
The following day, Plaintiff was seen entering into a University dormitory through
a basement window. (Compl. ¶ 53.) This incident was reported to the University by the
resident assistant. (Id.)
On Monday, August 26, 2013, Mr. Luekenga sent Plaintiff a letter notifying him
that a disciplinary hearing would be held on August 28, 2013 for three violations of the
Student Code: (1) inappropriate behavior towards another student; (2) inappropriate
behavior towards Sodexo Staff; and (3) use and possession of another student’s card
(the “First Disciplinary Proceeding”). (Id. ¶¶ 55-56; ECF No. 42-2 at 27.) Plaintiff
understood this letter to be addressing his behavior towards Ms. Gould, the meal card
incident, and the dorm incident. (Pl.’s Aff. ¶ 5.)
On the advice of his track coach, Plaintiff went to speak with Mr. Luekenga on
the afternoon of August 26, 2013. (Pl.’s Aff. ¶ 8.) Mr. Luekenga informed Plaintiff that
the University had received a complaint from an outside party regarding his relationship
with Ms. Gould. (Id.) Plaintiff described his relationship with Ms. Gould in detail, stating
that they had a consensual, fantasy-based relationship. (Id.) Plaintiff specifically
addressed the June Letter, saying that it was intended to keep a spark in a stressed

3

relationship. (Id.; ECF No. 42-2 at 31.) Mr. Luekenga advised Plaintiff that his main
concern was Plaintiff’s ability to make wise decisions, and that he would be making a
decision on discipline shortly. (ECF No. 42-2 at 31.) Mr. Luekenga advised Plaintiff
that there was no ongoing Title IX investigation, and that their meeting would serve as
Plaintiff’s disciplinary hearing. (Id.)
Later that day, Plaintiff sent an e-mail to his parents recounting his meeting with
Mr. Luekenga. (ECF No. 42-2 at 31-32.) Plaintiff explained that he and Mr. Luekenga
had discussed the cafeteria incident, the dorm incident, and his relationship with Ms.
Gould, with particular emphasis on the June Letter. (Id.)
On August 28, 2013, Plaintiff received a letter from Mr. Luekenga following up on
their meeting. (ECF No. 42-2 at 34.) Plaintiff was found responsible for violating
policies in the Student Handbook and was sanctioned with completion of 48 hours of
community service, writing a letter of apology to the dining staff, attending four
counseling sessions, and placement on probation for one year. (Id.)
On August 29, 2013, the University received a complaint from Ms. Gould. (ECF
No. 2-3.) Ms. Gould’s complaint describes her relationship with Plaintiff, and alleges
that Plaintiff frightened and intimidated her. (Id.) The complaint also alleges that
Plaintiff forced himself on Ms. Gould sexually at least once. (Id.)
On August 30, 2013, Plaintiff received a letter from Sarah Phillips, the
University’s Title IX coordinator, informing him that the University had been learned of
alleged sexual misconduct initiated by Plaintiff and directed towards Ms. Gould (the
“Second Disciplinary Proceeding”). (ECF No. 42-2 at 38.) Plaintiff was informed that

4

he was required to meet with Ms. Phillips on September 3, 2013 to discuss the
complaint, as well as the University’s processes for investigating the complaint. (Id.)
Plaintiff assumed that this meeting was a follow-up to the First Disciplinary Proceeding,
specifically regarding the June Letter. (Pl.’s Aff. ¶ 11.)
Plaintiff met with Ms. Phillips on September 3, 2013. (Pl.’s Aff. ¶ 12.) Ms.
Phillips informed Plaintiff that Ms. Gould had filed a complaint, and Plaintiff again
explained the nature of his relationship with Ms. Gould. (Id.) Ms. Phillips explained that
this was a new complaint, and was not related to the First Disciplinary Proceeding. (Id.)
Plaintiff felt blind-sided by this turn of events. (Id.)
On September 5, 2013, Plaintiff received a letter from Edward Klein, the
University’s Title IX Deputy, informing him that a meeting had been scheduled for
September 10, 2013. (Compl. ¶ 68.) The letter explained that the meeting was not a
disciplinary hearing, but was “essentially an opportunity for us to do some fact finding
surrounding the complaint.” (Id.)
Plaintiff appeared, with his attorney, at the September 10, 2013 meeting.
(Compl. ¶ 71.) Plaintiff was presented with a copy of Ms. Gould’s complaint. (Id.) After
reviewing the complaint, Plaintiff’s counsel advised him not to answer any questions or
make any comments. (Id. ¶ 72.)
On October 8, 2013, Plaintiff commenced this action by filing a Complaint
alleging the disciplinary proceedings brought against him violated his Due Process
rights, and breached the Student Handbook. (ECF No. 1.) Contemporaneous with his
Complaint, Plaintiff filed the instant Motion for Preliminary Injunction asking the Court to

5

enjoin the University from further disciplinary proceedings, under with the Student
Handbook or Title IX. (ECF No. 2.)
Based on the allegations in the Complaint and the Motion, it did not appear that
any further disciplinary proceedings were scheduled against Plaintiff. The Court
therefore found that the Motion did not allege any immediate harm, and that resolution
of the Motion could wait until the University could be heard. (ECF No. 10.) The Court
ordered Plaintiff to immediately serve the University, and directed the University to
respond to the Motion on an expedited basis. (Id.)
On October 16, 2013, Plaintiff received a letter notifying him that the University
had set a disciplinary hearing on Ms. Gould’s complaint for October 22, 2013 (the
“Second Disciplinary Proceeding”). (ECF No. 27.) The letter explained that the matter
to be adjudicated at the hearing was whether, based on the allegations in Ms. Gould’s
complaint, Plaintiff had violated the University’s policy regarding sexual harassment.
(Id.) The letter stated that the hearing was “an opportunity to explain the situation
through your perspective” and that Plaintiff would be able to present a written
statement, call witnesses or submit written witness statements, and submit pertinent
records or exhibits. (Id.) Plaintiff was referred to the Student Handbook regarding his
right to have an advisor present at the hearing, as well as the role that advisor could
play. (Id.)
On October 17, 2013, Plaintiff filed an Emergency Ex Parte Motion for
Temporary Restraining Order (“TRO Motion”), asking the Court to enjoin the hearing
scheduled in the Second Disciplinary Proceeding. (ECF No. 23.) The Court set a
hearing on the TRO Motion for October 21, 2013. (ECF No. 28.) At the hearing, the
6

Court heard argument from counsel, and granted the TRO Motion. (ECF No. 35.) In a
subsequent written Order, the Court found that entry of the Temporary Restraining
Order was necessary to preserve the status quo until the Court could resolve the
Motion for Preliminary Injunction on its merits. (ECF No. 37.) The Temporary
Restraining Order was extended on Plaintiff’s Motion, and is currently set to expire on
November 18, 2013. (ECF No. 44.)
II. LEGAL STANDARD
To prevail on a motion for injunctive relief, the movant must establish that four
equitable factors weigh in his favor: (1) he is substantially likely to succeed on the
merits; (2) he will suffer irreparable injury if the injunction is denied; (3) his threatened
injury outweighs the injury the opposing party will suffer under the injunction; and (4) the
injunction would not be adverse to the public interest. See Westar Energy, Inc. v. Lake,
552 F.3d 1215, 1224 (10th Cir. 2009). “[B]ecause 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).
III. ANALYSIS
Because the Court finds that Plaintiff has failed to show a likelihood of success
on the merits, its analysis will begin and end there. Plaintiff brings seven causes of
action, all of which relate to whether he was deprived of certain rights during the First
Disciplinary Proceeding, or will be deprived of rights by the Second Disciplinary
Proceeding. (Compl. pp. 25-31.) Encompassed in these claims are two separate
arguments: (1) whether the Second Disciplinary Proceeding, in and of itself, violates

7

Due Process; and (2) whether the procedures which will be utilized during the Second
Disciplinary Proceeding conform with Due Process. The Court will address each of
these issues in turn below.
A.

Double Jeopardy / Claim Splitting
In the Motion, Plaintiff argues that he is likely to succeed on the merits of his Due

Process claims because allowing the University to hold the Second Disciplinary
Proceeding would subject him to double jeopardy, which is prohibited by the
Constitution. (ECF No. 2 at 19-20.) At the hearing on the TRO, the Court implored
Plaintiff’s counsel to cite a case in which Double Jeopardy had been applied to
disciplinary proceedings in a school setting. In his Reply to the Motion, which was filed
after the hearing on the TRO, Plaintiff acknowledges that he has “not located legal
authority to support application of the Fifth Amendment Double Jeopardy Clause in
student disciplinary proceedings”, and recognizes that, “as a novel legal theory,
seemingly one of first impression, it would be extremely difficult to argue that it has a
substantial likelihood of ultimately prevailing on the merits.” (ECF No. 42 at 5-6.)
Plaintiff then proceeds to argue that “the parallel court-created doctrines of claim
preclusion and/or issue preclusion provide very substantial support for barring the
University from undertaking the second intended proceeding – in the same manner and
for the same equitable reasons it was argued that double jeopardy should apply.” (Id.
at 6.)
The Court views these statements in the Plaintiff’s Reply as an abandonment of
any argument regarding the applicability of the Double Jeopardy Clause of the Fifth
Amendment, at least for purposes of the instant Motion. As such, the Court need not
8

address this point any further. Instead, the Court will focus on the argument first raised
in the Plaintiff’s Reply brief, i.e., whether some aspect of the judicially-created doctrines
of claim preclusion and/or issue preclusion bar the Second Diciplinary Proceeding.
The University first argues that the doctrines of issue and claim preclusion simply
do not apply to school disciplinary proceedings because they are not “judicial
proceedings”. (ECF No. 45-1 at 2.) The Court finds the University’s arguments on this
point compelling, and has significant reservations about whether school disciplinary
proceedings are “judicial proceedings”. See Woodard v. Jefferson Cty., 18 F. App’x
706, 713-14 (10th Cir. 2001) (issue preclusion did not apply to the findings of an
internal grievance committee because it did not operate in a quasi-judicial capacity and
its findings did not have the force of law). However, in Matter of Greene, 302 P.3d 690,
693 (Colo. 2013), the Colorado Supreme Court held that attorney disciplinary
proceedings were subject to issue and claim preclusion, and a logical extension of that
analysis could bring apply these doctrines to school disciplinary proceedings. Given
this precedent, the Court assumes, without deciding and for purposes of this Order
only, that the disciplinary proceedings at issue in this case are subject to the doctrines
of issue and claim preclusion.
In Colorado, issue and claim preclusion require four conditions: “finality of the
earlier judgment, identity of subject matter, identity of claims, and identity of the parties
(or at least those in privity with them).” Greene, 302 P.3d at 693. Claim preclusion
generally refers to the effect of a prior judgment in foreclosing successive litigation on
the very same claim, whether or not relitigation of the claim raises the same issues as
the earlier suit. See New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001). On the
9

other hand, issue preclusion generally refers to the effect of a prior judgment in
foreclosing successive litigation of an issue of fact or law actually litigated and resolved
in a valid court determination essential to the prior judgment, whether or not the issue
arises on the same or a different claim. Id.
Here, Plaintiff contends that the University is barred from commencing the
second disciplinary proceeding because the University was required to adjudicate all
issues related to Plaintiff’s relationship with Ms. Gould during the First Disciplinary
Proceeding. (ECF No. 42 at 7.) This argument does not fall squarely within issue
preclusion or claim preclusion; rather, it is an offshoot of these doctrines commonly
referred to as “claim splitting”, and which “requires a plaintiff to assert all of its causes of
action arising from a common set of facts in one lawsuit”. Hartsel Springs Ranch of
Colo., Inc. v. Bluegreen Corp., 296 F.3d 982, 985 (10th Cir. 2002). The prohibition on
claim splitting prevents parties from wasting “scarce judicial resources” and
undermining “the efficient and comprehensive disposition of cases” by spreading claims
around in multiple lawsuits in other courts or before other judges. Id.
The key issue here is whether the two disciplinary proceedings are so similar that
they “should be treated as the same for purposes of a bar to sequential actions against
the same party.” Greene, 302 P.3d at 693. Colorado courts have generally ascribed to
the “transactional view”, which defines a claim “so as to embrace all remedial rights of a
plaintiff against a defendant growing out of the relevant transaction or series of
connected transactions.” Id. at 694 (citing Argus Real Estate, Inc. v. E-470 Pub. Hwy.
Auth., 109 P.3d 604, 609 (Colo. 2005)). A key consideration is whether the

10

subsequent proceeding will involve “substantially interrelated proof” as the initial
proceeding. See People v. Miranda, 754 P.2d 377, 380 (Colo. 1988).1
Whether two actions involve interrelated proof is a determination that must be
done on a case-by-case basis, and the Court must consider the particular facts and
particular nature of the claims at issue. Greene, 302 P.3d at 693. However, an
“integral” requirement is that the party commencing the discipline was aware of the
additional action that should be joined with the first “at a point in time making
consolidation or joinder a realistic option.” Id. at 695.
The University contends that the two disciplinary proceedings arise out of
different events and, therefore, do not have substantially interrelated proof. (ECF No.
45-1 at 4.) It also argues that it did not know of the events giving rise to the second
disciplinary proceeding until after the first was complete. (Id. at 5.) The Court finds that
the record supports both of these arguments.
With regard to the question of interrelated proof, the record shows that the First
Disciplinary Proceeding involved three events: (1) the June Letter from Plaintiff to Ms.
Gould; (2) Plaintiff presenting Ms. Gould’s student identification card at a dining facility;
and (3) Plaintiff entering a dorm through a basement window. (ECF No. 42-2.) Plaintiff
admits that, during his initial meeting with Mr. Pierson, he was questioned extensively
about the June Letter, and that there was no discussion of non-consensual sexual

1

The Court recognizes that Miranda is a criminal case and that issue and claim
preclusion are civil doctrines. However, in Greene, the Colorado Supreme Court relied heavily
on criminal precedent and held that there are significant similarities between attorney regulatory
proceedings and criminal actions. Because the Court is assuming that Greene can be
extended to the student discipline process, it also relies on precedent from criminal cases.

11

activity or sexual violence. (Pl.’s Aff. ¶¶ 1-2.) An e-mail composed by Plaintiff to his
parents on the day of his first hearing similarly states the only events discussed were
the three listed above. (Id. at 31-32.) There is no mention of sexual misconduct in any
of the documents related to the First Disciplinary Proceeding or affidavits recounting the
events which comprise the First Disciplinary Proceeding.2
On the other hand, the focus of the Second Disciplinary Proceeding is on
“alleged sexual misconduct, which [Plaintiff] initiated and was directed towards Onna
Gould,” and is based on a complaint filed by Ms. Gould on August 29, 2013. (ECF Nos.
2-3 & 42-2 at 38.) In the Second Disciplinary Proceeding, Plaintiff is being investigated
for a violation of the prohibition on sexual harassment, which was never discussed
during the First Disciplinary Proceeding. Because the Second Disciplinary Proceeding
focuses only on sexual misconduct, and there was no discussion of sexual misconduct
during the First Disciplinary Proceeding, the Court finds that the two disciplinary actions
do not involve substantially interrelated proof.
Additionally, Plaintiff has produced no reliable evidence showing that the
University had knowledge of Ms. Gould’s complaints regarding sexual misconduct,
specifically sexual assault or violence, before the First Disciplinary Proceeding
concluded. It is undisputed that, on August 28, 2013, Plaintiff received a letter from the
University that outlined his sanctions resulting from the First Disciplinary Proceeding.

2

Plaintiff has also submitted an affidavit from Kathy Johnson, Plaintiff’s mother, in
which she avers that Plaintiff told her on August 20, 2013 that he was being investigated for
“sexual violence”. (ECF No. 42-3 ¶ 4.) This affidavit is rife with hearsay and contradicts other,
more reliable evidence, such as the letters outlining the scope of the disciplinary hearing and
the e-mail drafted by Plaintiff to his parents on the day of the hearing in the First Disciplinary
Proceeding. As such, the Court gives little weight to Ms. Johnson’s affidavit.

12

(ECF No. 42-2 at 34-35.) This letter informed him that he could appeal the University’s
determination, and concluded the First Disciplinary Proceeding. The following day, on
August 29, 2013, the University received Ms. Gould’s complaint, which forms the basis
for the Second Disciplinary Action. Plaintiff has failed to show that the University had
any knowledge of Ms. Gould’s complaint at a point in time in which it would have been
possible to consolidate the allegations made therein with the First Disciplinary
Proceeding. See Greene, 302 P.3d at 695.
Because Plaintiff has failed to show that the two disciplinary actions involved
substantially interrelated proof, or that the University had knowledge of the facts
underlying the Second Disciplinary Proceeding during the First Disciplinary Proceeding,
he has failed to show that he is likely to succeed on his claim alleging claim or issue
preclusion through claim splitting.
B.

Right to Counsel
Plaintiff also alleges that he is likely to succeed on his Due Process claim

because the procedures that the University intends to employ during the Second
Disciplinary Proceeding deprive him of his right to counsel.3 (ECF No. 42 at 8-12.)
Specifically, Plaintiff contends that the University’s Student Handbook, which provides
that a student may have advisory counsel present at a disciplinary hearing “[w]ith the

3

Plaintiff’s Motion does not allege any Due Process violation based on a right to
counsel. (ECF No. 2 at 18-19.) This argument first appears in Plaintiff’s Reply Brief. (ECF No.
42 at 8.) Generally, an argument raised for the first time in a reply brief is deemed abandoned
or waived. See Hanh Ho Tran v. Trustees of State Colls. in Colo., 355 F.3d 1263, 1266 (10th
Cir. 2004) (“‘Issues not raised in opening brief are deemed abandoned or waived.’”) (quoting
Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997)). However,
in the interest of justice, and because the Court has permitted the University to file a sur-reply,
the Court will consider this argument.

13

approval of the Judicial Hearing Officer or Title IX Coordinator or Deputy”, is “plainly
illegal.” (Id. at 11-12.)
The parties disagree as to whether Plaintiff has a right to counsel during any
disciplinary hearing and, if so, to what extent counsel should be permitted to participate
in the hearing. Plaintiff cites Coulter v. East Stroudsberg University, 2010 WL 1816632
(M.D. Pa. May 5, 2010) for the proposition that his attorney should be permitted to
question witnesses and advocate on his behalf during the hearing. (ECF No. 42 at 8-9.)
Defendant contends that Coulter is an outlier, and that the majority of cases have held
that, at most, a student has right to have counsel present to advise him, but that there is
no right to have counsel participate directly in a disciplinary hearing. (ECF No. 45-1 at 6
(citing Johnson v. Temple Univ., 2013 WL 5298484, *10 (E.D. Pa. Sept. 19, 2013)
(collecting cases)).)
The Court finds that it need not resolve this dispute because Plaintiff does not
ask for his attorney to be able to participate in any disciplinary hearing. The only
argument Plaintiff makes in his Reply Brief is that the Student Handbook, on its face,
violates Plaintiff’s right to have counsel present in an advisory capacity. (ECF No. 42 at
11.) Because Plaintiff does not ask the Court to require the University to allow his
counsel to participate in the hearing in anything other than an advisory capacity, the
Court need not decide any broader issue.
The Court finds that Plaintiff has not shown that he is likely to succeed on any
claim that he is being denied access to an advisory attorney during an upcoming
disciplinary hearing. The record shows that Plaintiff’s attorney was able to attend the
investigatory meeting, in which Plaintiff was given a copy of Ms. Gould’s complaint.
14

(Compl. ¶¶ 71-72.) Counsel was able to review Ms. Gould’s complaint with Plaintiff,
and advised him not to answer any questions regarding the complaint. (Id.) The
University has consistently stated that Plaintiff will be able to have counsel present at
the hearing scheduled in the Second Disciplinary Proceeding, and that counsel will be
able to advise Plaintiff during this hearing. (See ECF No. 41 ¶ 16.) Given this
representation, and Plaintiff’s failure to present any evidence to the contrary, the Court
cannot find that the University, based on its Student Handbook or any other policy,
intends to take some action that will deprive Plaintiff of any right to counsel.
In sum, Plaintiff has failed to show that he likely to succeed on his claim that the
second disciplinary proceeding will violate his Due Process rights because it should
have been joined with the first proceeding. Plaintiff has also failed to show that he is
likely to succeed on his claim that any upcoming disciplinary hearing will violate his right
to have advisory counsel present. As such, the Court finds that Plaintiff has failed to
meet his burden of showing a likelihood of success on the merits of any of his claims.
C.

Remaining Factors
The Court declines to address the remaining preliminary injunction elements, as

the resolution of them will have no bearing on the outcome. See In re Qwest Commc’ns
Int’l, Inc. Sec. Litig., 241 F. Supp. 2d 1119, 1123 (D. Colo. 2002) (declining to enter
temporary restraining order, even “assum[ing], without deciding, that the plaintiffs have
a substantial likelihood of success on the merits,” because plaintiffs failed to establish
irreparable harm and that the balance of equities was in their favor); Russell v. Dep’t of
Air Force, 915 F. Supp. 1108, 1122 (D. Colo. 1996) (“Having decided that [plaintiff] has

15

not shown clearly that he has a substantial likelihood of success on the merits, I need
not address the remaining factors.”); see also Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 23-24 (2008) (plaintiff’s failure to meet one requirement for preliminary
injunction required denial of the requested relief); Sofinet v. INS, 188 F.3d 703, 707 (7th
Cir. 1999) (noting that if a plaintiff fails to meet the “threshold requirements” of showing
“likelihood of success and irreparable injury,” “the court’s inquiry is at an end and the
injunction must be denied”).
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Motion for Preliminary Injunction (ECF No. 2) is DENIED;

2.

The Court’s Temporary Restraining Order (ECF Nos. 37 & 44) shall EXPIRE on
its own terms.
Dated this 18th day of November, 2013.
BY THE COURT:

William J. Martínez
United States District Judge

16