Makeen v. State of Colorado, The et al

Filing 129

ORDER Adopting and Affirming 123 December 18, 2015 Recommendation of United States Magistrate Judge. Plaintiff's Corrected Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (Doc. # 60 ) and Plaintiff's Verified Emergency Motion for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (Doc. # 103 ) are DENIED. By Judge Christine M. Arguello on 01/05/2016. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-03452-CMA-CBS
AKEEM MAKEEN,
Plaintiffs,
v.
THE STATE OF COLORADO,
DENVER CITY AND COUNTY,
Defendants.
ORDER ADOPTING AND AFFIRMING DECEMBER 18, 2015
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case was referred to United States Magistrate Judge Craig B. Shaffer
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. (Doc. # 15.)

On December 18,

2015, Judge Shaffer issued a Recommendation to deny Plaintiff’s two motions for
temporary injunctive relief. 1 (Doc. # 123.) The Recommendation is incorporated herein
by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). On January 1, 2016,
Plaintiff filed timely objections to the Recommendation. (Doc. # 128.)
“When a magistrate judge issues a recommendation on a dispositive matter,
Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part
of the magistrate judge’s [recommended] disposition that has been properly objected
1

Pro se Plaintiff Akeem Makeen first submitted a Corrected Verified Petition and Application for
Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue
on March 30, 2015. (Doc. # 60.) On June 1, 2015, Plaintiff filed a Verified Emergency Motion for
Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue.
(Doc. # 103.)

to.” In conducting its review, “[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.
In his Recommendation, Magistrate Judge Shaffer recites three categories of
disfavored injunctions recognized by the Tenth Circuit, including injunctive relief that
“alters the status quo.” (Doc. # 123 at 16.) If a request for relief implicates a disfavored
category, the movant is held to a heightened standard requiring a strong showing of the
“likelihood of success” and “balance of harms” elements of the preliminary injunction
inquiry. 2 (Id.) Magistrate Judge Shaffer characterizes Plaintiff’s petitions as requests
for injunctive relief that would “alter the status quo”, and therefore evaluates the
petitions in accordance with the heightened standard. (Id.)
Plaintiff objects, arguing that Magistrate Judge Shaffer “erroneously applied the
heightened standard of proof . . . ,” claiming “courts have held that the heightened
standard . . . does not apply where a plaintiff is seeking injunction for the purpose of
enforcing a statute designed to protect the public.” (Doc. # 128 at 2.) In support of his
proposition, Plaintiff cites United States v. Rx Depot, Inc., 290 F. Supp. 2d 1238, 124648 (N.D. Okla. 2003). However, Rx Depot does not stand for the proposition asserted
by Plaintiff. Instead, “where a statute designed to protect the public authorizes
injunctive relief, [the movant] need not prove all of the elements.” Rx Depot, Inc., 290 F.

2

The “likelihood of success” and the “balance of the harms” are elements one and three of the
prerequisite inquiry for preliminary injunctive relief. Elements two and four respectively require a showing
that a movant will suffer irreparable injury if relief is denied and a showing that the injunction, if issued,
would not be adverse to the public interest. See Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC,
F.3d 1067, 1070 (10th Cir. 2009).

Supp. 2d at 1246. Specifically, where an injunction is authorized by statute, the movant
is simply not required to show the element of irreparable harm. Id.
In the instant case, Magistrate Judge Shaffer correctly identified a suspect
injunction and appropriately applied the heightened standard in his evaluation of the
“likelihood of success” and the “balance of harms” elements. This Court agrees with
Magistrate Judge Shaffer’s considered conclusion that the factual record does not
clearly demonstrate Plaintiff’s substantial likelihood of success. Accordingly, Plaintiff’s
first objection is without merit.
Plaintiff raises a second objection to Magistrate Judge Shaffer’s
Recommendation: his alleged failure to apply 28 C.F.R. § 35.160-164 and 28 C.F.R. §
42.503. (Doc. # 128 at 4.) This is an improper objection that merely reiterates
arguments that were before Magistrate Judge Shaffer at the time his recommendation
issued. Indeed, Magistrate Judge Shaffer explicitly considers Plaintiff’s arguments
concerning 28 C.F.R. § 35.160-164 in his Recommendation (Doc. # 123 at 22), and this
Court agrees with his conclusions. With respect to 28 C.F.R. § 42.503, Plaintiff has
failed to develop his argument. The statute is cited, but nowhere in the objection is it
discussed, nor does Plaintiff explain how consideration of the statute would alter the
conclusion drawn from the applicable standard for injunctive relief.
The Court has conducted a de novo review of this matter, including reviewing
all relevant pleadings, the Recommendation, and Plaintiff’s objection thereto. Based
on this de novo review, the Court concludes that Magistrate Judge Shaffer’s
Recommendation is correct and is not called into question by Plaintiff’s objection.

Accordingly, it is hereby ORDERED that Plaintiff’s objection (Doc. # 128) is
OVERRULED. It is
FURTHER ORDERED that the Recommendation of United States Magistrate
Judge Craig B. Shaffer (Doc. # 123) is AFFIRMED and ADOPTED as an order of this
Court. Pursuant to the Recommendation, it is
FURTHER ORDERED that Plaintiff’s Corrected Verified Petition and Application
for Temporary Restraining Order and Order to Show Cause Why a Preliminary
Injunction Should Not Issue (Doc. # 60) and Plaintiff’s Verified Emergency Motion for
Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction
Should Not Issue (Doc. # 103) are DENIED.
DATED: January 5, 2016
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge