Rudnick v. No Named Defendant
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 5/30/17 re 28 Motion for Injunctive Relief. The Court respectfully RECOMMENDS that the Motion for Injunctive Relief 28 be DENIED. IT IS HEREBY ORDERED that the Motion Requesting Action 42 is DENIED asmoot. (lgale, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-02071-RM-KLM
DARREN COREY, and
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Temporary Restraining
Order and Preliminary Injunction [#28]1 (the “Motion for Injunctive Relief”),2 and Plaintiff’s
“[#28]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Recommendation.
“Where the opposing party has notice, the procedure and standards for issuance of a
temporary restraining order mirror those for a preliminary injunction.” Emmis Commc’ns Corp. v.
Media Strategies, Inc., No. 00-WY-2507CB, 2001 WL 111229, at *2 (D. Colo. Jan. 23, 2001) (citing
11A Charles Alan Wright, et al., Federal Practice and Procedure § 2951 (2d ed. 1995)).
Defendants have received notice of the Motion for Injunctive Relief, indicated by the fact that they
have filed a Response. See Response [#68]. Thus, the Court will consider this Motion as a request
for injunctive relief.
Request for Action on His T.R.O./Preliminary Injunction Motion (Filed on 1-17-2017 2nd Time) and Notice of Hardship [#42] (the “Motion Requesting Action”). Defendants
filed a Response [#68] in opposition to the Motion for Injunctive Relief.3 The Court has
reviewed the Motions, the Response, the entire case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons set forth below, the Court respectfully
RECOMMENDS that the Motion for Injunctive Relief [#28] be DENIED. The Motion
Requesting Action [#42] is DENIED as moot.
Plaintiff is a prisoner in the custody of the Colorado Department of Corrections
(“CDOC”) at the Sterling Correctional Facility. He has brought this pro se action against
various prison officials pursuant to 42 U.S.C. § 1983. See Second Am. Compl. [#24] at 12.
Plaintiff challenges the replacement of his prescription eyeglasses with state-issued
eyeglasses that he alleges are inadequate. He also challenges certain restrictions placed
on his access to the prison’s law library and his legal materials. See id. at 36-50. Plaintiff
seeks immediate injunctive relief related to provision of new eyeglasses, unlimited and
unrestricted print-outs of and access to his legal documents, and to “stop all ‘scrutiny’ and
‘sharing’ of Plaintiff’s privileged confidential legal file information with other parties,” among
other requests. Motion for Injunctive Relief [#28] at 25-27. Plaintiff’s Motion Requesting
Action [#42] seeks a ruling on the Motion for Injunctive Relief [#28].
Although Plaintiff has not filed a Reply and his time to do so has not yet expired, the Court
nonetheless may rule on the Motion for Injunctive Relief. See D.C.COLO.LCivR 7.1(d) (“Nothing
in this rule precludes a judicial officer from ruling on a motion at any time after it is filed.”).
Standard for Injunctive Relief
As a preliminary matter, because Plaintiff is proceeding pro se, the Court must
construe his pleadings liberally. 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 the pro
se litigant’s advocate, nor should the Court “supply additional factual allegations to round
out [a pro se litigant’s] complaint or construct a legal theory on [his] behalf.” Whitney v.
New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110).
Injunctive relief is an extraordinary remedy that should only be granted when the
moving party clearly and unequivocally demonstrates its necessity. Schrier v. Univ. of
Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). In the Tenth Circuit, a party requesting
injunctive relief must clearly establish that: (1) the party will suffer irreparable injury unless
the injunction issues; (2) the threatened injury outweighs whatever damage the proposed
injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse
to the public interest; and (4) there is a substantial likelihood of success on the merits. Id.
“Because a showing of probable irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction, the moving party must first
demonstrate that such injury is likely before the other requirements for the issuance of an
injunction will be considered.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,
356 F.3d 1256, 1260 (10th Cir. 2004) (citations omitted). Moreover,
[b]ecause the limited purpose of a preliminary injunction is merely to preserve
the relative positions of the parties until a trial on the merits can be held, we
have identified the following three types of specifically disfavored preliminary
injunctions . . . (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, 427 F.3d at 1258-59 (citations omitted). These disfavored injunctions are “more
closely scrutinized to assure that the exigencies of the case support the granting of a
remedy that is extraordinary even in the normal course.” Id. at 1259.
Plaintiff seeks to change various prison rules, or at least to change how the rules are
applied to him. See generally Motion for Injunctive Relief [#28]. Thus, Plaintiff seeks a
preliminary injunction which would require Defendants to act and/or otherwise alter the
status quo in relation to their dealings with Plaintiff. For these reasons, the injunctive relief
sought by Plaintiff “constitutes a specifically disfavored injunction” that “must be more
closely scrutinized.” See Schrier, 427 F.3d at 1261. Therefore, “the right to relief must be
clear and unequivocal.” Id. at 1258.
Additionally, the Court must consider well-established precedent that prison
management functions should be left to the broad discretion of prison administrators in
order to enable them to manage prisons safely and effectively. See, e.g., Meachum v.
Fano, 427 U.S. 215 (1976). Thus, courts should grant injunctive relief involving the
management of prisons only under exceptional and compelling circumstances. Taylor v.
Freeman, 34 F.3d 266, 269-70 & n.2 (4th Cir. 1994); see also Citizens Concerned for
Separation of Church & State v. Denver, 628 F.2d 1289, 1299 (10th Cir. 1980). Indeed,
the Tenth Circuit has stated that it “abhor[s] any situation or circumstance requiring the
intervention of the federal courts in matters involving the administration, control and
maintenance by the sovereign states of their penal systems. It is a delicate role assigned
to the federal courts to display that restraint so necessary ‘in the maintenance of proper
federal-state relations.’” Battle v. Anderson, 564 F.2d 388, 392 (10th Cir. 1977) (citation
omitted). As such, “intervention in the management of state prisons is rarely appropriate
when exercising the equitable powers of the federal courts. . . . [This] is especially true
where mandatory injunctive relief is sought and only preliminary findings as to the plaintiff’s
likelihood of success on the merits have been made.” Taylor, 34 F.3d at 269 (citations
To obtain injunctive relief, Plaintiff must first show that he will suffer irreparable injury
if his request for injunctive relief is denied. See Schrier, 427 F.3d at 1258. “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) (quoting Wis. Gas Co. v. FERC,
758 F.2d 669, 674 (D.C. Cir. 1985)). Irreparable harm is more than “merely serious or
substantial” harm. Id. (citation omitted). The party seeking the preliminary injunction “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.” Id. (citation omitted). Therefore,
Plaintiff “must establish both that harm will occur, and that, when it does, such harm will be
irreparable.” See Vega v. Wiley, 259 F. App’x 104, 106 (10th Cir. 2007).
Plaintiff has failed to demonstrate that he is likely to experience more than “merely
serious or substantial harm.” See Heideman, 348 F.3d at 1189. First, Plaintiff alleges that
use of his current state-issued eyeglasses has resulted in “eyestrain, headaches, nausea,
blurred vision, and visual disorientation.” Motion for Injunctive Relief [#28] at 16. Although
these symptoms may rise to the level of serious or substantial harm, they do not appear
to be “irreparable.” See Bruce v. Wilson, No. 13-cv-0491-WJM-CBS, 2013 WL 5890793
(D. Colo. Nov. 4, 2013) (adopting recommendation to deny prisoner’s preliminary injunction
motion for failure to show irreparable harm, where plaintiff lacked eyeglasses for over six
months and suffered “painful headaches, deterioration of vision and difficulty reading or
movement”). An affidavit from Trisha Kautz, a Nurse Practitioner for CDOC, states that she
reviewed Plaintiff’s optometry records, which show that he was last seen by an optometrist
for an eye exam in August of 2015 and was provided with state-issued glasses that
matched his prescription. Aff. of Trisha Kautz [#68-1] ¶¶ 20, 24. Moreover, she explains
that Plaintiff is eligible for an optometry appointment in July 2017 and that he may obtain
new glasses with an updated prescription at that time. Id. ¶ 27. Plaintiff’s concern that
Defendants “will continue to misdiagnose and misprescribe glasses” is speculative. See
Motion for Injunctive Relief [#28] at 23. Thus, although Plaintiff alleges that his state-issued
eyeglasses are inadequate, he has not demonstrated that he has been denied eyeglasses
entirely, or that they are causing conditions that are likely to lead to harm that is irreparable.
See Heideman, 348 F.3d at 1189.
Plaintiff also states several times in a conclusory fashion that the taking of his
eyeglasses has hindered his access to legal remedies. See, e.g., Motion for Injunctive
Relief [#28] at 18, 19. Plaintiff’s most specific explanation of how his access has been
hindered is that he is “unable to maintain ongoing effort on his legal remedies without
suffering eyestrain and fatigue forcing him to cease his activities to rest his eyes and relieve
headaches.” Id. at 18. The Court finds Plaintiff’s argument that he has been “unable to
maintain ongoing effort on his legal remedies” unconvincing, given the numerous and
lengthy filings Plaintiff has submitted to the Court, which include citations to case law. See
id. Thus, these allegations do not satisfy Plaintiff’s burden of showing “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.
Additionally, Plaintiff has failed to demonstrate, clearly and unequivocally, that he
is entitled to injunctive relief regarding the alleged restrictions on Plaintiff’s access to his
legal work and the law library. See Schrier, 427 F.3d at 1258. As stated above, the docket
demonstrates that Plaintiff has been able to prepare and submit numerous filings. He
therefore does not appear to be hindered by his limited access to his legal work or law
library access in the present case. Furthermore, Plaintiff has not alleged that he has been
“denied access, only that he want[s] more or better access,” which does not indicate that
he will suffer irreparable harm if injunctive relief is not granted. See Mears v. Bargdill, 83
F.3d 432 (10th Cir. 1996) (finding allegations setting forth a “general need for . . . legal
materials” and better access to a law library as insufficient for a preliminary injunction).
While not entirely clear, Plaintiff also appears to allege that he is being denied access to
his legal files – related to other litigation – that are stored on the CDOC Legal Access
Program System because he refuses to sign a contract for usage that includes terms that
are not acceptable to Plaintiff. Plaintiff’s Decl. [#28] ¶ 5, 10-14. The only information
Plaintiff provides to the Court about his other litigation is that “new constitutional grounds
are revealed that will require submission of new motions into the court for proper review
and relief” with respect to Plaintiff’s criminal convictions. Id. ¶ 3. “To the extent he alleges
a general need for the legal materials in order to pursue other litigation, we do not have
adequate information about the other litigation to evaluate this claim.” See Mears, 83 F.3d
at 432; see also Longstreth v. Ward, 113 F. App’x 882, 883 (10th Cir. 2004) (upholding
denial of a preliminary injunction motion involving library access because the prisoner had
not demonstrated an impediment to assertion of an actual legal claim). Moreover, based
on Plaintiff’s own allegations, he will gain access to his files on signing CDOC’s Legal
Access contract. Plaintiff’s Decl. [#28] ¶ 14 (“defendant [Anderson] refuses to allow me
access to my files unless I signed [sic] a (new) contract”). Plaintiff’s decision not to sign a
contract because he disagrees with its terms does not demonstrate exceptional and
compelling circumstances warranting Court intervention in prison management. See
Taylor, 34 F.3d at 270 n.2.
Lastly, to the extent Plaintiff conclusorily alleges that Defendant Anderson has
shared Plaintiff’s legal documents with other Defendants and other prisoners, Plaintiff has
failed to show any irreparable harm resulting from the alleged conduct. See Motion for
Injunctive Relief [#28] at 16; Heideman, 348 F.3d at 1189.
Given that the Court finds that Plaintiff has failed to demonstrate that he will suffer
irreparable injury if his request for injunctive relief is denied, the Court need not analyze the
three additional elements that must be established to obtain a preliminary injunction. See
Sampson v. Murray, 415 U.S. 61, 91-92 (1974) (noting that the failure to show irreparable
injury is sufficient ground, by itself, to deny injunctive relief).4
For the foregoing reasons,
The Court respectfully RECOMMENDS that the Motion for Injunctive Relief [#28] be
Plaintiff states in the Motion Requesting Action [#42] that “a hearing must be scheduled,”
or that the Court must grant Plaintiff’s injunctive relief request outright. Motion Requesting Action
[#42] at 6. The Court is not inclined to set a hearing because, for the reasons discussed above,
Plaintiff has not met his heavy burden of demonstrating that he will suffer irreparable harm if his
requested relief is not granted. See Schrier, 427 F.3d at 1258.
In light of this Recommendation,
IT IS HEREBY ORDERED that the Motion Requesting Action [#42] is DENIED as
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of the Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party’s objections to this
Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).
Dated: May 30, 2017
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