Faircloth v. Colo. Dept. of Corrections et al

Filing 7

ORDER denying 5 Application for Injunctive Relief by Judge Lewis T. Babcock on 5/2/16.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00908-GPG
JAMES FAIRCLOTH,
Plaintiff,
v.

COLO. DEPT. OF CORRECTIONS - CDOC,
RICK RAEMISCH, Executive Director of CDOC,
MICHAEL MILLER, Warden of Crowley Corr. Fac.,
DAVE ZUPAN, Asst. Warden of Crowley Corr. Fac.,
DAMON HININGER, CEO of C.C.A.,
CORRECTIONS CORPORATION OF AMERICA,
IAN HOLCOMB, Crowley Mailroom Personnel Chief, and
LT. BAZONA, Mailroom Lt. @ CMC-FMCC,
Defendants.

ORDER DENYING MOTION

This matter is before the Court on “Petitioner/Plaintiff’s Application for Injunctive
Relief” (ECF No. 5) filed pro se by Plaintiff James Faircloth on April 25, 2016. The
Court must construe the motion liberally because Mr. Faircloth 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. Faircloth is a prisoner in the custody of the Colorado Department of
Corrections at the Crowley County Correctional Facility. He has filed a Prisoner
Complaint (ECF No. 1) claiming that his First Amendment rights were violated when

Defendants retaliated against him by placing him on a postage restriction of no more
than $2.00 per month in outgoing legal mail postage pursuant to the policy of the
Colorado Department of Corrections. He also claims that Defendants have violated his
Fourteenth Amendment due process and equal protection rights by stopping his
outgoing mail based on his indigent pro se status.
In the motion, Mr. Faircloth seeks preliminary injunctive relief to enjoin
Defendants from “utilizing sec. (a) and (b) of A.R. 300-38, sec. IV – Procedures at
subsection B-8, for Good Cause of protecting this Petitioner’s and other Indigent
Petitioners’ Constitutional 1st Amendment rights of Access to meaningful and adequate
ability to litigate their Redresses before the Courts during the Course of litigations even
if it does set one back Credit wise – Debit to Inmate Account.” (ECF No. 5 at 2). He
further seeks to prevent “defendants from further harm to Access to Courts, meaning
fully and adequately, without interruption and retaliation and hindrance, obstruction
against those whom challenge or oppose the processes used by Defendants as this
Plaintiff has litigated in 14cv464 REB KLM, 15cv513 GPG and the Criminal Cases he is
a defendant in for Cases 08CR329 and 08CR1222, which are still ongoing along with 10
other cases which Plaintiff has a right to access the Courts for relief.” (Id. at 4). He
alleges that he “will continue to suffer stoppage of his litigation mail and will lose his
Cases unfairly as a result when he deserves the merit to be adjudged fairly and
Correctly.” (Id. at 3).
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;

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(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
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. Faircloth
“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

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theoretical.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)
(internal quotation marks omitted). Therefore, Mr. Faircloth “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. Faircloth fails to demonstrate, clearly and unequivocally, that he is entitled to
a preliminary injunction or temporary restraining order. Most importantly, Mr. Faircloth
fails to allege specific facts that demonstrate he will suffer irreparable injury if no
preliminary injunction or temporary restraining order is issued. Mr. Faircloth also fails to
allege specific facts in support of his claims that demonstrate a substantial likelihood of
prevailing on the merits in this action. Accordingly, it is
ORDERED that “Petitioner/Plaintiff’s Application for Injunctive Relief” (ECF No. 5)
is denied.
DATED at Denver, Colorado, this 2nd

day of

May

, 2016.

BY THE COURT:
s/Lewis T. Babcock_____________
LEWIS T. BABCOCK, Senior Judge
United States District Court

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