O'Connor v. Bassoff et al.

Filing 25

ORDER denying 17 Second Amended Emergency Motion for Declaratory Judgment and Injunctive Relief Or, In the Alternative, Request for Emergency Hearing by Judge Lewis T. Babcock on 11/3/15.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02121-GPG
ANDREW J. O’CONNOR,
Plaintiff,
v.
TOBEY BASSOFF,
JOLENE RADOSTIS,
RICK KELLOGG,
ROBBYN FERNANDEZ,
BRUCE MESSINGER,
RYAN ELEMENTARY SCHOOL, and
BOULDER VALLEY SCHOOL DISTRICT NO. RE2, individually and severally,
Defendants.

ORDER DENYING MOTION

This matter is before the Court on the “Second Amended Emergency Motion for
Declaratory Judgment and Injunctive Relief Or, In the Alternative, Request for Emergency
Hearing” (ECF No. 17) filed pro se by Plaintiff, Andrew J. O’Connor. The Court must
construe the motion liberally because Mr. O’Connor 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. Construing Mr. O’Connor’s motion liberally, the Court will
consider it as a Motion for a Temporary Restraining Order and Preliminary Injunction.
Mr. O’Connor has filed a Fourth Amended Complaint where he alleges that he
complained about the lack of supervision at his daughter’s school and his concerns for

her safety and in response, the Defendants banned him from the school campus. (ECF
No. 20). He argues that the Defendants have prohibited him from walking his daughter
to class since September 22, 2015. According to Plaintiff, the ban on walking his
daughter to her classroom violates his due process rights under the Fifth and Fourteenth
Amendments and was done to chill his free speech rights in violation of the First
Amendment. Mr. O’Connor seeks preliminary injunctive relief “to remove the prohibition
against the father walking his daughter to class; without fear of arrest,” or in the
alternative, for the Court to hold an emergency hearing on the merits of the motion. (ECF
No. 17 at 2.)
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,

2

“courts should be especially cautious when granting an injunction that requires the
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. O’Connor “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. O’Connor “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).
Mr. O’Connor fails to demonstrate, clearly and unequivocally, that he is entitled to
a preliminary injunction or temporary restraining order. Most importantly, Mr. O’Connor
fails to allege specific facts that demonstrate he will suffer great and irreparable injury if no
preliminary injunction or temporary restraining order is issued. Mr. O’Connor is banned
from walking his daughter to her classroom and entering the school grounds, but he is not
banned from walking her to school and saying goodbye at the edge of the school campus.
He has failed to demonstrate how any great and irreparable injury will occur if he is not

3

allowed to accompany his daughter all the way to her classroom. As there is no basis to
find a great and irreparable injury will occur if no preliminary injunction or temporary
restraining order is issued, there is no reason for an emergency hearing regarding this
motion. Accordingly, it is
ORDERED that the “Second Amended Emergency Motion for Declaratory
Judgment and Injunctive Relief Or, In the Alternative, Request for Emergency Hearing”
(ECF No. 17), construed liberally as a Motion for a Temporary Restraining Order and
Preliminary Injunction, is DENIED.
DATED at Denver, Colorado, this

3rd

day of

November

, 2015.

BY THE COURT:

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

4