Morris v. Cozza-Rhodes et al

Filing 21

ORDER denying 5 Emergency Motion for Preliminary Injunction, by Judge Raymond P. Moore on 11/06/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 15-cv-01877-RM
BRANDON MORRIS,
Plaintiff,
v.
THERESA K. COZZA-RHODES;
FRANK STRATTA;
JOSE SANTANA; and
FEDERAL BUREAU OF PRISONS
Defendants.
______________________________________________________________________________
ORDER DENYING
EMERGENCY MOTION FOR PRELIMINARY INJUNCTION (ECF NO. 5)
______________________________________________________________________________
Plaintiff Brandon Morris is in the custody of the Federal Bureau of Prisons (“BOP”) and
housed at the U.S. Penitentiary (“USP”) in Florence, Colorado. He filed this lawsuit seeking
mental health treatment and the termination of his referral to ADX (Administrative-Maximum
U.S. Penitentiary) Florence.
This matter is now before the Court on Plaintiff’s Emergency Motion for Preliminary
Injunction (“Motion”) (ECF No. 5), seeking relief also requested in his Complaint. Plaintiff also
requests an evidentiary hearing. Defendants filed a response (ECF No. 20) in opposition,
arguing that (1) the BOP has recently determined Plaintiff will not be transferred to the ADX “at
this time” and (2) Plaintiff is receiving appropriate psychological and psychiatric care at USP
Florence. The Court has considered the Motion, Response, the Court file, and the applicable

statutes, rules and case law, and is otherwise fully advised in the premises.1 Upon such
consideration, the Court finds no hearing is required2 and denies the Motion without prejudice.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As stated, Plaintiff filed is an inmate at USP Florence. On August 31, 2015, Plaintiff

filed this action stating he is awaiting transfer to ADX Florence, is actively suicidal, and is not
receiving mental health treatment. On September 23, 2015, Plaintiff filed his Motion, stating he
suffers from major depression and anxiety, and is presently contemplating suicide. Plaintiff
seeks two forms of relief. First, Plaintiff seeks specific mental health treatment – the enrollment
in the Psychology Treatment Program. Second, Plaintiff seeks to have his impending transfer to
ADX Florence terminated, in light of his mental health and the treatment he seeks.
In response, Defendants conducted an “ADX Referral Analysis,” examined Plaintiff’s
history and concluded that Plaintiff should be placed in a “suitable facility” with access to mental
health treatment to address his needs. Accordingly, Plaintiff will not be transferred to ADX
Florence at this time. In addition, Dr. Kristen Moody, Deputy Chief Psychologist for the Federal
Correctional Complex at Florence, examined Plaintiff’s mental health history and, on October
13, 2015, conducted a suicide risk assessment of Plaintiff. As of that date, Dr. Moody concluded
Plaintiff did not appear to have “clinically significant symptoms” but stated Plaintiff will

1

The Court finds no reply brief is necessary.
Fed. R. Civ. P. 65(a) does not expressly require an evidentiary hearing before the Court rules on a motion for a
preliminary injunction. The Court may deny an injunction based on the written evidence without a hearing, even if
one is requested, where “receiving further evidence would be manifestly pointless.” 11A Charles Alan Wright et al.,
Federal Practice and Procedure § 2949, at 246-248 (3d ed. 2013). Whether to hold a hearing is a matter of the
Court’s discretion. Carbajal v. Warner, 561 F. App’x 759, 764 (10th Cir. 2014); Reynolds & Reynolds Co. v. Eaves,
149 F.3d 1191, 1998 WL 339465, at *3 (10th Cir. June 10, 1998) (table).
2

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continue to be seen for monthly Care2-MH3 contacts, with treatment based on reported
symptom, and can consult with psychology services or telepsychiatry between his monthly
appointments. Plaintiff will also continue with a treatment plan focused on “Cognitive Behavior
Therapy for Depression.”
II.

STANDARD OF REVIEW
A. Preliminary Injunctions
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.” Okla. ex rel Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 11121113 (10th Cir. 2006). The standard of proof varies depending on the type of injunction sought.
Where the injunction sought is prohibitory, i.e., requiring the nonmovant to stop acting in
a manner that disturbs the status quo, the movant may be afforded relief under a lesser standard
of proof on the likelihood-of-success-on-the-merits factor if he can show the other three
requirements tip strongly in his favor. Id. at 1112-1113. Where the injunction sought is one of
three types of disfavored injunctions,4 however, the ordinary and/or lesser standard is
inapplicable. Additionally, 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) (“O Centro”).
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The BOP uses mental health care levels to classify inmates based on their need for mental health services. (ECF
No. 20-2, page 8.)
4
The three disfavored injunctions are: (1) preliminary injunctions that alter the status quo; (2) mandatory
preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that he could recover at
the conclusion of a full trial on the merits. Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005).

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The request must be more closely scrutinized to assure that the exigencies of the case require
extraordinary interim relief. O Centro, 389 F.3d at 975, 978-979. Determining whether an
injunction is mandatory or prohibitory can be “vexing.” Schrier v. Univ. of Colo., 427 F.3d
1253, 1260 (10th Cir. 2005) (quotation marks and citation omitted).
B. Plaintiff’s Pro Se Status
Plaintiff proceeds pro se. The Court, therefore, reviews Plaintiff’s pleadings and
other papers liberally and holds them to a less stringent standard than those drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United
States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). However, the Court
should not act as the pro se litigant’s advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
III.

ANALYSIS
A. Referral to ADX
Defendants argue that Plaintiff’s request not to be transferred to ADX is moot in light of

the BOP’s recent decision not to refer Plaintiff to ADX. The Court agrees.
“[T]he constitutional mootness doctrine focuses upon whether a definite controversy
exists throughout the litigation and whether conclusive relief may still be conferred by the court
despite the lapse of time and any change of circumstances that may have occurred since the
commencement of the action.” Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (citation
and internal quotation marks omitted). “[T]he crucial question is whether granting a present
determination of the issues offered will have some effect in the real world.” Ind v. Colo. Dept. of
Corrections, 801 F.3d 1209, 1213 (10th Cir. 2015) (quotation marks and citation omitted). Here,
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in Plaintiff’s preliminary injunction request, he seeks to have his referral to ADX Florence
terminated due to his present mental health condition. Defendants have examined Plaintiff’s
current mental condition and agree that referral is not appropriate; therefore, Plaintiff is not being
transferred to ADX Florence and has received the relief he seeks. Accordingly, Plaintiff’s
request for injunctive relief on this basis is moot. See Ind, 801 F.3d at 1211, 1217 (prisoner’s
transfer from administrative segregation into general population rendered claims moot where
prisoner was no longer subjected to the restrictions which gave rise to his suit); Burden v. Olen,
No. 06-cv-00268-ZLW-MEH, 2007 WL 2244794 (D. Colo. Aug. 2, 2007) (plaintiff’s claim
seeking a change in his sex offender classification was moot where his sex offender status was
changed).5
B. Mental Health Treatment
As to Plaintiff’s request for a specific type of mental health treatment, i.e., “Psychology
Treatment Program,” he has not met the standards for granting preliminary injunctive relief, even
assuming, arguendo, the injunction he seeks is not disfavored.
1. Irreparable Harm and the Balance of Harm
“‘To constitute irreparable harm, an injury must be certain, great, actual and not
theoretical.’” Schrier, 427 F.3d at 1267 (quoting Heideman v. South Salt Lake City, 348 F.3d
1182, 1189 (10th Cir. 2003)). It is “harm that cannot be undone, such as by an award of
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Generally, a court may not dismiss a case as moot if: “(1) secondary or collateral injuries survive after resolution of
the primary injury; (2) the issue is deemed a wrong capable of repetition yet evading review; (3) the defendant
voluntarily ceases an allegedly illegal practice but is free to resume it at any time; or (4) it is a properly certified
class action.” Ind, 801 F.3d at 1213 (internal quotation marks omitted). The Court finds, however: (1) no secondary
or collateral injuries are claimed to trigger the first exception; (2) the “narrow” second exception applicable in
“exceptional circumstances,” id. at 1215, also does not apply due to, among other things, the situational nature of the
relief sought, i.e., Plaintiff’s request for the termination of any transfer and Defendants’ determination that transfer
is inappropriate are based on Plaintiff’s current mental health, considered in light of his mental health history; (3) the
third exception is inapplicable for the same reason as the second exception; and (4) this is not a class action.

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compensatory damages or otherwise.” Salt Lake Tribune Publ’g Co., LLC v. AT & T Corp., 320
F.3d 1081, 1105 (10th Cir. 2003). The movant, however, must show a “significant risk” of
irreparable harm. Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003).
Plaintiff argues “[c]ourts have required prisons to house the mentally ill in more
appropriate facilities,” as support for his contention that he faces irreparable harm. (ECF No. 5,
page 3.) Plaintiff’s argument appears to be addressed to where he is housed, rather than to what
treatment he seeks to receive. In light of the termination of any transfer to ADX Florence based
on Plaintiff’s current mental condition, irreparable harm has not been shown.
To the extent Plaintiff contends he is suffering irreparable harm because he was (at the
time he filed his Motion and prior thereto) receiving no treatment, Defendants have stated
otherwise. The Court need not, however, resolve this dispute as the issue at hand is whether the
mental treatment requested should be ordered. Defendants have filed sworn statements that
Plaintiff is receiving and will continue to receive appropriate treatment, including access to
educational and other programs. To the extent Plaintiff contends he is suffering irreparable harm
because he was not – and is not – receiving a particular type of treatment, Plaintiff has provided
no factual allegations or support that this particular treatment was prescribed or recommended, or
is otherwise needed, for his mental health condition. And, Defendants have shown to the
contrary – that the treatment Plaintiff is being provided is appropriate in light of his mental
health condition. As such, no irreparable harm has been shown.
As irreparable harm has not been shown, it follows that the second factor – balance of
harms – also weighs against preliminary injunctive relief.

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2.

The Public Interest

Plaintiff summarily argues it is in the public interest for prison officials to obey the law.
In light of the lack of any harm, however, Plaintiff fails to show the public interest would not be
adverse to the issuance of a preliminary injunction ordering prison officials to enroll him in a
particular treatment program. Instead, “there is a strong public interest in affording substantial
deference to prison officials in managing the daily operations of a prison due to the unique
nature, needs and concerns of the prison environment.” Pinson v. Pacheco, 424 F. App’x 749,
756 (10th Cir. 2011); see 18 U.S.C. § 3626(a)(2) (“[T]he court shall give substantial weight to
any adverse impact on public safety or the operation of a criminal justice system caused by”
preliminary injunctive relief.).
3. Likelihood of Success on the Merits
Plaintiff argues he will succeed on the merits of his claim as prisoners should not be
housed in supermax facilities.6 But, as previously addressed, Plaintiff’s request for preliminary
injunctive relief as to the termination of any transfer to ADX Florence is moot. As for his other
request, Plaintiff offers no facts or arguments as to the likelihood of success as to the request for
enrollment in a Psychology Treatment Program. As Defendants argue, Plaintiff is being assessed
and receiving treatment. Moreover, Plaintiff’s request for a specific treatment indicates he
contends that he is entitled to a particular course of treatment, a right not protected by the Eighth
Amendment. Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (“Both this court and
our sister circuits have rejected such an expansive view of the rights protected by the Eighth

6

Plaintiff makes this same argument as to solitary confinement, but his Motion seeks termination of a transfer to
ADX Florence, not a transfer from solitary confinement.

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Amendment.”); Williams v. Allred, 611 F. App’x 491, 495 (10th Cir. 2015).7 Accordingly,
Plaintiff fails to establish this factor as well.
IV.

CONCLUSION
Under the facts and circumstances, Plaintiff has not demonstrated the preliminary

injunction requested should be ordered. By this finding, however, Plaintiff is not precluded from
seeking relief in the future should there be a change in facts and circumstances which would
support a request for relief. It is therefore
ORDERED that Plaintiff’s Emergency Motion for Preliminary Injunction (ECF No. 5) is
DENIED without prejudice.
DATED this 6th day of November, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

7

This is not an instance where Plaintiff has alleged or shown that a certain level or type of treatment, i.e., the
Psychology Treatment Program, was prescribed or recommended but was denied.

8