O'Connor v. Bassoff et al.

Filing 29

SECOND ORDER DENYING TRO MOTION. The Second Motion for a Temporary Restraining Order and Preliminary Injunction Pursuant to Fed. R. Civ. P. 65(b)(1)(A) (ECF No. 27 ) is DENIED, by Judge Lewis T. Babcock on 11/16/2015.(agarc, )

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.

SECOND ORDER DENYING TRO MOTION

This matter is before the Court on the “Second Motion for a Temporary Restraining
Order and Preliminary Injunction Pursuant to Fed. R. Civ. P. 65(b)(1)(A)” (“TRO Motion”)
(ECF No. 27), although it is actually the third such motion (see ECF No. 11 and 17), filed
pro se by Plaintiff, Andrew J. O’Connor, in this case. 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.
Mr. O’Connor has filed a Fifth 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. 28). 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 be allowed on school
property in order to walk his daughter to her classroom, to pick his daughter up from
school or in case of emergency, from attending parent-teacher conferences, PTA
meetings, or attending any of his daughter’s extracurricular activities . . . .” (ECF No. 27 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

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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
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).
Nothing has changed since the Court’s November 3, 2015 Order denying Mr.
O’Connor’s Motion for a Preliminary Injunction (ECF No. 25). Again, in his current TRO
motion, he has failed to demonstrate, clearly and unequivocally, that he is entitled to a
preliminary injunction or temporary restraining order. Similar to his previous motion, his
current TRO motion fails to allege specific facts that demonstrate he will suffer great and
irreparable injury if no preliminary injunction or temporary restraining order is issued.

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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. In his current motion, he attempts to expand on how
he will be injured by stating that he cannot pick up his daughter in case of emergency,
cannot attend parent-teacher conferences, PTA meetings, or any of his daughter’s
extracurricular activities. However, the letter from the school principal, which was
attached to an earlier version of his complaint, states: “All visits to the school must be
approved and pre-arranged through me.” (ECF No. 20 at 20). Unlike the “total ban” that
Plaintiff portrays, the letter actually directs him to make arrangements with the principal if
he has a reason to visit the school. He makes no allegations that he has tried to
pre-arrange visits to parent-teacher conferences, PTA meetings, extracurricular events,
or for any other reason.
Further, he states numerous times in his TRO motion that the ban is “indefinite.”
(ECF No. at 1, 2, 15). On the contrary, the email from Defendant Fernandez, Executive
Director for Elementary School Leadership for Boulder Valley School District, to Plaintiff,
which Plaintiff cites in his Fifth Amended Complaint, stated that Fernandez “was
supporting the school in their requirement for you not to enter the school until you are able
to meet and determine how best to work together.” (ECF No. 28 at 12) (emphasis added).
The email indicates that the ban will be in place until Plaintiff meets with the school
officials. According to Plaintiff’s own factual allegations, he had a meeting scheduled
with the school principal, which he skipped. At one point he says he skipped the meeting
because “of illness” (Id. at 10), while at another point he states, he “decided not to attend

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the meeting because of the unnecessary, acrimonious and antagonistic presence of the
[BVSD] security guard” (Id. at 7). In any event, it is clear that instead of first attempting to
meet with the school officials directly involved, Plaintiff filed a federal complaint. At this
point the ban is only “indefinite” because Plaintiff has refused to meet with school officials.
Accordingly, at this point, the “indefiniteness” of the ban is due to Plaintiff’s own
actions. Further, he is able to pre-arrange visits to the school by contacting the principal,
and he can walk his daughter to the edge of school property. As such, Plaintiff has failed
to demonstrate how any great and irreparable injury will occur unless his TRO Motion is
granted. Therefore, the TRO Motion will be denied.
Unless the factual circumstances change, Plaintiff is warned any repeated filings
of additional TRO Motions will be frowned upon by the Court and may be stricken.
Accordingly, it is
ORDERED that the “Second Motion for a Temporary Restraining Order and
Preliminary Injunction Pursuant to Fed. R. Civ. P. 65(b)(1)(A)” (ECF No. 27) is DENIED.
DATED at Denver, Colorado, this

16th

day of

November

, 2015.

BY THE COURT:

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

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