Gosselin v. Kaufman et al

Filing 10

ORDER denying the motion for a preliminary injunction or temporary restraining order 7 by Judge Lewis T. Babcock on 3/18/15.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00539-GPG
KEITH V. GOSSELIN,
Plaintiff,
v.
SERGEANT KAUFMAN,
OFFICER GONZALEZ,
JOHN DOE,
SHARON PHILIPS,
JAMES LARIMORE,
INVESTIGATOR MONTOYA,
INVESTIGATOR RICHARDSON, and
MAJOR ALLEN,
Defendants.

ORDER DENYING MOTION

This matter is before the Court on the letter requesting a preliminary injunction or
temporary restraining order (ECF No. 7) filed pro se by Plaintiff, Keith Gosselin, that has
been docketed as a pending motion. Mr. Gosselin seeks preliminary injunctive relief
against Defendants that prohibits physical contact; verbal or written communication;
unnecessary write-ups, harassment, or retaliatory measures; and threats or coercive
tactics against Mr. Gosselin and his family members.
The Court must construe the motion liberally because Mr. Gosselin 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.

Mr. Gosselin is a prisoner in the custody of the Colorado Department of
Corrections at the Centennial Correctional Facility. He has filed a Prisoner Complaint
(ECF No. 1) claiming his rights were violated while he was incarcerated at the San
Carlos Correctional Facility. Mr. Gosselin specifically claims his rights were violated
when he was assaulted by a correctional officer who kicked him in the groin, when he
was placed in segregation for reporting the assault, and when he was denied adequate
medical treatment for the injuries he suffered when he was assaulted. With the possible
exception of the medical treatment claim, all of the claims in the Prisoner Complaint are
premised on events that occurred in October 2012.
A party seeking a preliminary injunction must show: (1) a substantial likelihood of
prevailing on the merits; (2) he will suffer irreparable injury unless the injunction issues;
(3) the threatened injury outweighs whatever damage the proposed injunction may
cause the opposing party; and (4) the injunction, if issued, would not be adverse to the
public interest. See Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). “Because 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). 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).
“[T]he 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
2

nonmoving party to take affirmative action - a mandatory preliminary injunction - before
a trial on the merits occurs.” Id. If the movant 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.
“[A] showing of probable irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction.” Dominion Video Satellite, Inc.
v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004). Thus, Mr. Gosselin
“must first demonstrate that such injury is likely before the other requirements for the
issuance of an injunction will be considered.” Id.
“To constitute irreparable harm, an injury must be certain, great, actual and not
theoretical.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)
(internal quotation marks omitted). Therefore, Mr. Gosselin “must establish both that
harm will occur, and that, when it does, such harm will be irreparable.” Vega v. Wiley,
259 F. App’x 104, 106 (10th Cir. 2007). Furthermore, a party seeking preliminary
injunctive relief “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,
348 F.3d at 1189. A preliminary injunction is only appropriate “to prevent existing or
presently threatening injuries. One will not be granted against something merely feared
as liable to occur at some indefinite time in the future.” Connecticut v. Massachusetts,
282 U.S. 660, 674 (1931).
Mr. Gosselin fails to demonstrate, clearly and unequivocally, that he is entitled to
a preliminary injunction or temporary restraining order. In particular, Mr. Gosselin fails
to allege specific facts relevant to his claims in the Prisoner Complaint that demonstrate
3

he will suffer future injury that is irreparable if no preliminary injunction or temporary
restraining order is issued. “[A] party moving for a preliminary injunction must
necessarily establish a relationship between the injury claimed in the party’s motion and
the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
1994) (per curiam) (citing Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir.
1975). As noted above, Mr. Gosselin’s claims in this action are premised on events that
occurred primarily in October 2012 when he was incarcerated at a different prison. His
vague and conclusory allegations that he still feels threatened are not sufficient to justify
preliminary injunctive relief. Accordingly, it is
ORDERED that the motion for a preliminary injunction or temporary restraining
order (ECF No. 7) is denied.
DATED at Denver, Colorado, this

18th

day of

March

, 2015.

BY THE COURT:

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

4