Nicholas v. Gossett et al

Filing 28

ORDER Of Dismissal and Denial of Motion for Preliminary Injunction. The Complaint (ECF No. 19 ) and the action are dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. The Motion for Preliminary Injunction (ECF No. 5 ) is denied. Any other pending motions are denied as moot. By Judge Lewis T. Babcock on 6/20/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03497-BNB
CLIFFORD DENNIS NICHOLAS,
Plaintiff,
v.
BARBRA GOSSETT - Medical Administrator (LCF),
DR. KUCHER - LCF,
DENISE ASHUER - Nurse, (LCF),
MISS BRIGGS, Nurse, (LCF),
JANE DOE - Dietician (CDOC),
LT. JACKSON, Hearing Officer (LCF),
MRS. INFINITE, Investigator - (LCF),
SGT. KELLY, (LCF),
CAPT. SMITH, Shift Commander (LCF),
LT. LAWSON, (FCF),
LT. REICH, (FCF),
LT. BALDERSTON, Housing (FCF),
MISS ROBINO - Sgt. Housing (FCF),
MRS. BORNS - Sgt. Unit 2 (FCF),
MISS SIMONS, Case Manager (FCF),
MISS STRICKLETT, CO Unit 2 (FCF),
MISS HERRARA - Case Manager (KCCF),
MISS BERNIE, Sgt. Faith Pod (KCCF),
MR. MCCALUM, Case Manager (LCF), and
MR. GILLIS, Case Manager (LCF),
Defendants.

ORDER OF DISMISSAL AND
DENIAL OF MOTION FOR PRELIMINARY INJUNCTION

Plaintiff, Clifford Dennis Nicholas, is a prisoner in the custody of the Colorado
Department of Corrections at the Limon Correctional Facility in Limon, Colorado.
Plaintiff initiated this action on December 27, 2013, by filing numerous documents
including an “Emergency Prisoner Complaint” (ECF No. 1), Prisoner’s Motion and

Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3),
“Memorandum” (ECF No. 4), “Preliminary Injunction” (ECF No. 5), “Medical Emergency!!!!” (ECF No. 6), “Motion for Appointment of Counsel” (ECF No. 7), and
“Medical File Copy” (ECF No. 8). In response to an order directing Plaintiff to cure
deficiencies, Mr. Nicholas submitted a Complaint (ECF No. 19) and Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 20) on March 28, 2014.
Plaintiff was granted leave to proceed pursuant to 28 U.S.C. § 1915.
On April 10, 2014, United States Magistrate Judge Boyd N. Boland reviewed the
Complaint (ECF No. 19), determined that it was deficient, and entered an order directing
Mr. Nicholas to file an amended prisoner complaint within thirty days. In the April 10
order, the Court explained that the Complaint did not comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. The Court found that
the Complaint was prolix, vague, and unintelligible, and that Mr. Nicholas failed to
provide a short and plain statement of his claims showing that he is entitled to relief.
The Court also found that Mr. Nicholas failed to allege the personal participation of each
named Defendant in a violation of his constitutional rights. Finally, the Court advised
Mr. Nicholas that the Complaint did not comply with Rule 10.1 of the Local Rules of
Practice for this Court. (See ECF No. 23).
The Court afforded Mr. Nicholas the opportunity to cure the deficiencies in his
Complaint by submitting, within thirty days, an amended prisoner complaint that asserts
claims clearly and concisely in compliance with Rule 8 and alleges specific facts that
demonstrate how each named defendant personally participated in the asserted
constitutional violations. Mr. Nicholas was warned that if he failed to file an amended
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prisoner complaint that complied with the April 10 order within the time allowed, the
Court may dismiss some of the claims and defendants or the entire action without
further notice for the reasons discussed in the order. (See ECF No. 23).
On May 12, 2014, Mr. Nicholas requested an extension of time to file his
amended prisoner complaint, which the Court granted in a minute order (See ECF Nos.
24, 25). Mr. Nicholas, however, did not file an amended complaint by the court-ordered
deadline. Instead, Mr. Nicholas filed a Petition for Mandamus in the United States Court
of Appeals for the Tenth Circuit. (See ECF Nos. 26 and 27). In the Petition, Mr.
Nicholas asks the Tenth Circuit to order this District Court “to rule on the Prisoners
Complaint § 1983" pursuant to “the mandates of liberal pleadings.” (ECF No. 26).
Absent a stay, the filing of a petition for mandamus does not divest the district court of
jurisdiction. See Moore v. Busby, 92 Fed. Appx. 699, 702 (10th Cir. 2004)
(unpublished); Woodson v. Surgitek, Inc., 57 F.3d 1406, 1416 (5th Cir. 1995). Mr.
Nicholas has not sought a stay of proceedings. The Court, therefore, proceeds in the
instant action.
Mr. Nicholas has failed to file an amended prisoner complaint by the courtordered deadline. In addition, the most recently filed Complaint (ECF No. 19) fails to
comply with Fed.R.Civ.P. 8, as discussed in the April 10, 2014 Order Directing Plaintiff
to File an Amended Complaint. Based on the reasons set forth in the April 10 order, the
Court finds that the Prisoner Complaint (ECF No. 19) fails to comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure. A decision to dismiss a
complaint pursuant to Rule 8 is within the trial court’s sound discretion. See Atkins v.
Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Gillibeau v. City of
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Richmond, 417 F.2d 426, 431 (9th Cir. 1969). Accordingly, the Complaint and the
action will be dismissed without prejudice for failure to comply with Rule 8 and for failure
to comply with the Court’s April 10 Order.
In addition, on December 27, 2013, Mr. Nicholas filed a document entitled
“Preliminary Injunction” (ECF No. 5) in which he requests that the Court issue an order
to show cause why a preliminary injunction should not issue that (1) orders a second
medical opinion independent from the Department of Corrections; (2) orders “no
retaliation writ-ups claimed in the complaint;” and (3) prevents “transfers to stall or avoid
the opperation [sic]”. (Id.). Again, the Court construes the document liberally because
Mr. Nicholas is not represented by an attorney. See Haines, 404 U.S. at 520-21; Hall,
935 F.2d at 1110.
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). A preliminary injunction is an extraordinary remedy and “the 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
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affirmative action - a mandatory preliminary injunction - before a trial on the merits
occurs.” Id. Because Mr. Nicholas 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.
Mr. Nicholas has failed to demonstrate, clearly and unequivocally, that he is
entitled to issuance of either a preliminary injunction or a temporary restraining order.
For one thing, Mr. Nicholas has not filed an amended prisoner complaint in this action
that provides a short and plain statement of the claims for relief he intends to pursue
and that alleges the personal participation of each named Defendant. More importantly,
Mr. Nicholas fails to demonstrate a substantial likelihood of prevailing on the merits; that
he will suffer immediate and irreparable injury if no preliminary injunction is issued; that
his threatened injuries outweigh whatever damage the proposed injunction may cause
the opposing party; or that a preliminary injunction would not be adverse to the public
interest. For these reasons, the motion for a preliminary injunction (ECF No. 5) will be
denied.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Nicholas files a notice of appeal he also must pay the full $505.00
appellate filing fee or file a motion to proceed in forma pauperis in the Tenth Circuit
within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Complaint (ECF No. 19) and the action are dismissed
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without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the
failure of Plaintiff, Clifford Dennis Nicholas, to comply with the April 10, 2014 Order
Directing Plaintiff to File an Amended Complaint (ECF No. 23) and for failure to file a
pleading that complies with Fed.R.Civ.P. 8. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that the Motion for Preliminary Inunction (ECF No. 5) is
denied. It is
FURTHER ORDERED that any other pending motions are denied as moot.
DATED at Denver, Colorado, this 20th day of

June , 2014.

BY THE COURT:

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

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