Snyder v. Manguso et al

Filing 37

ORDER Denying Motion for Temporary Restraining Order and Directing Briefing on Motion for Preliminary Injunction (ECF No. 36 ). Defendants shall file a response to Plaintiff's Motion (ECF No. 36 ) on or before 8/10/2015 and Plaintiff may file any reply within 14 days of the service of Defendants' Response. By Judge Raymond P. Moore on 06/29/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 15-cv-00591-RM-MJW
JOSEPH R. SNYDER,
Plaintiff,
v.
ROBERT MANGUSO,
RANDY LIND, and
RICK RAEMISCH,
Defendants.
______________________________________________________________________________
ORDER
DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
AND DIRECTING BRIEFING ON
MOTION FOR PRELIMINARY INJUNCTION (ECF NO. 36)
______________________________________________________________________________
THIS MATTER is before the Court on Plaintiff Joseph R. Snyder’s “Motion for a
Temporary Restraining Order and a Preliminary Injunction Pursuant to Rule 65 Fed. R. Civ. P.”
(the “Motion”). (ECF No. 36.) In the Motion, Plaintiff seeks an order directing Defendants to
provide Plaintiff immediate medical treatment for Parkinson’s disease. Plaintiff, a state prisoner
appearing pro se, filed this 42 U.S.C. § 1983 action alleging he has Parkinson’s disease1 for
which Defendants are denying appropriate medical care.

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Plaintiff’s Amended Prisoner[’]s Complaint alleges he suffers from a number of “chronic medical conditions,” but
his Motion seeks relief relating only to one of such condition, i.e., Parkinson’s disease.

I.

PLAINTIFF’S PRO SE STATUS
The Court must construe the Motion liberally because Plaintiff 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, construed liberally, is denied as to Plaintiff’s request for a temporary
restraining order and is deferred until briefing is completed as to Plaintiff’s request for a
preliminary injunction.
II.

REQUIREMENTS FOR A TEMPORARY RESTRAINING ORDER
Under Rule 65(b)(1)(a) of the Federal Rules of Civil Procedure, in order to obtain a

temporary restraining order without written or oral notice to the adverse party or his attorney, a
plaintiff must: (i) via affidavit or a verified complaint, provide specific facts that clearly show he
will suffer immediate and irreparable injury, loss, or damage before the defendant can be heard
in opposition; and (ii) show the efforts his attorney has made to give notice of the request to the
opposing party, or to show why notice should be excused. See D.C.COLO.LCivR 65.1
(requiring a certificate from movant that actual notice and copies of filings were given, or of the
efforts made to provide such notice and copies, to the opposing party); Boles v. Dansdill, Case
No. 05CV01661OES, 2005 WL 2205860, at *1 (D. Colo. Sept. 8, 2005) (“[A] party seeking a
temporary restraining order must demonstrate clearly, with specific factual allegations, that
immediate and irreparable injury will result unless a temporary restraining order is issued.”)
(citation omitted).

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“[T]he procedure and standards for issuance of a temporary restraining order mirror those
for a preliminary injunction” under Rule 65(a) of the Federal Rules of Civil Procedure. See
Emmis Commc’ns Corp. v. Media Strategies, Inc., Case No. 00-WY-2507CB, 2001 WL 111229,
at *2 (D. Colo. Jan. 23, 2001). Before a preliminary injunction may be issued, the moving party
must establish: (1) he will suffer irreparable injury unless the injunction issues, (2) the threatened
injury outweighs any damage the proposed injunction may cause the opposing party, (3) if
issued, the injunction would not be adverse to the public interest, and (4) he has a substantial
likelihood of success on the merits. Fed. R. Civ. P. 65(a); Wilderness Workshop v. United States
Bureau of Land Mgmt., 531 F.3d 1220, 1224 (10th Cir. 2008) (citation omitted). “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)
(citation omitted). In addition, where the injunction sought is one of three types of disfavored
injunctions, the movant must make a heightened showing to demonstrate entitlement to relief. O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004)
(en banc), aff’d and remanded, 546 U.S. 418 (2006). The request must be more closely
scrutinized to assure that the exigencies of the case require extraordinary interim relief. Id. at
975, 978-979. In this case, the Court need not decide whether the relief Plaintiff seeks is one of
the three types of disfavored injunctions as it finds entitlement to relief has not been shown even
under the regular standard.
III.

THE FAILURE TO SHOW IRREPARABLE HARM
In this case, Plaintiff seeks an order for an examination and plan of treatment by a

qualified neurologist. Plaintiff’s declaration under 28 U.S.C. § 1746 states that he suffers from

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Parkinson’s disease which is treated by deep brain implants. He states, without sufficient
specific facts, that his “neurologists” have prescribed a course of treatment but Defendant
Manguso has refused to follow the “recommended therapy” and has refused to provide him any
treatment at all. Plaintiff also states that his medication is “continually unavailable,” that he has
had to wait up to six days for his medication, but his medication needs adjustment and is no
longer working. Plaintiff further states that “on information and belief” he has not been
provided with physical therapy or evaluated with a neurologist because the Arkansas Valley
Correctional Facility, where he is confined, gives low priority to the medical needs of inmates
“unless their medical condition is life threatening.” (ECF No. 36-1, Declaration, ¶7.) Plaintiff
contends he suffers from an “increasing risk of death” and the “risk” of another stroke if his
medication is not adjusted, and cursorily asserts that he is in constant pain. (ECF No. 36-1, ¶¶9,
10.) Similarly, Plaintiff’s Motion states that he “may suffer another stroke, possible death” and
“may” suffer other harm if he does not receive proper treatment and medication “at the proper
times.”
On the current record, the Court finds that Plaintiff has failed to meet his burden with
respect to any Defendant due to the insufficient evidence of irreparable harm. “To constitute
irreparable harm, an injury must be certain, great, actual and not theoretical. Irreparable harm is
not harm that is merely serious or substantial.” Heideman v. South Salt Lake City, 348 F.3d
1182, 1189 (10th Cir. 2003) (internal quotation marks and citations omitted). Here, Plaintiff has
failed to show a threat of irreparable harm that will – or is likely – to occur before Defendants
could be heard in response to the motion for temporary restraining order. Plaintiff states that he
“may” or there is the “possib[ility]” that he will suffer irreparable harm. In addition, Plaintiff has

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not shown such harm is imminent. Heideman, 348 F.3d at 1189 (“The party seeking 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.”) (internal alterations and citation
omitted); see Williams v. BAC Home Loans Serv., Case No. 10-CV-01805-MSK, 2010 WL
3025553, at *2 (D. Colo. July 30, 2010). In the light of this finding, the Court need not address
the remaining factors. Petrella v. Brownback, __ F.3d __, 2015 WL 3452663, at *9 (10th Cir.
June 1, 2015) (“Because we agree with the district court that plaintiffs are unlikely to prevail on
the merits, we need not address the remaining preliminary injunction factors.”); see ACLU v.
Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999) (a party seeking injunctive relief must satisfy all
four factors). Accordingly, Plaintiff’s request for a temporary restraining order is denied.
As for Plaintiff’s Motion which seeks a preliminary injunction, a determination at this
juncture is not appropriate as recognized in the Motion. Instead, a hearing will be set after the
Motion is fully briefed in accordance with the schedule set forth below.
IV.

CONCLUSION
Based on the foregoing, it is ORDERED
(1) That Plaintiff’s “Motion for a Temporary Restraining Order and a Preliminary
Injunction Pursuant to Rule 65 Fed. R. Civ. P.” (ECF No. 36) to the extent it seeks a
temporary restraining order is DENIED;
(2) That Plaintiff’s “Motion for a Temporary Restraining Order and a Preliminary
Injunction Pursuant to Rule 65 Fed. R. Civ. P.” (ECF No. 36) to the extent it seeks
preliminary injunctive relief is DEFERRED until the matter is fully briefed and ripe
for determination;

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(3) That the Clerk of the Court shall serve a copy of this Order on Defendants via the
Colorado Attorney General Office, Civil Litigation Division as shown on Plaintiff’s
Certificate of Service (ECF No. 36, page 4) and via the Office of Legal Services,
Colorado Department of Corrections as shown in the Waiver of Service of Summons
(ECF No. 28);
(4) That Defendants shall file a response (“Response”) to Plaintiff’s Motion (ECF No.
36) on or before August 10, 2015, the current deadline for Defendants to answer or
otherwise respond to Plaintiff’s Amended Prisoner[’s] Complaint; and
(5) That Plaintiff may file any reply within 14 days of the service of Defendants’
Response.
DATED this 29th day of June, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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