Sutton v. Colorado Department of Corrections (CDOC) et al

Filing 20

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re denying 2 Emergency Motion for T.R.O. (Temporary Restraining Order) and/or Preliminary Injunction; Alternatively, Writ of Habeas Corpus Ad Testificandum and/or Subpoena(s) Due to Continuous Retaliation filed by Joshua Lamont Sutton, by Magistrate Judge Michael J. Watanabe on 4/07/2017. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00605-RM-MJW
JOSHUA LAMONT SUTTON,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS (CDOC),
VAUGHN, Mrs.,
BOLTON, Mrs.,
GRANT, Mrs.,
HEALY, Mrs.,
O’BRIAN, Mrs.,
GEBHART, Mr.,
JASON LENGERICH,
BRUNELL, Mr.,
GILLIS, Mr.,
SCAMPA, Mrs.,
LAGUE, Mr.,
WOOD, Mrs.,
LORENZE, Mrs.,
LONG, Mr.,
FOWLER, Mr.,
JIMERSON, Mr.,
OWENS, Mr., and
LISAC, Mr.,
Defendants.

REPORT AND RECOMMENDATION ON PLAINTIFF’S EMERGENCY MOTION FOR
T.R.O. (TEMPORARY RESTRAINING ORDER) AND/OR PRELIMINARY
INJUNCTION; ALTERNATIVELY, WRIT OF HABEAS CORPUS AND
TESTIFICANDUM AND/OR SUBPOENA(S) - DUE TO CONTINUOUS RETALIATION
(Docket No. 2)

Entered by Magistrate Judge Michael J. Watanabe
This case is before the Court pursuant to an Order of Reference to Magistrate
Judge issued by Judge Raymond P. Moore on March 13, 2017. (Docket No. 8.) Now

before the Court is Plaintiff’s filed an “Emergency Motion for T.R.O. (Temporary
Restraining Order) and/or Preliminary Injunction; Alternatively, Writ of Habeas Corpus Ad
Testificandum and/or Subpoena(s) – Due to Continuous Retaliation” (the “Motion”). (Docket
No. 2.) Defendants filed a Response (Docket No. 15) and Plaintiff filed a Reply. (Docket
No. 19.) The Court has considered these motion papers as well as the Court’s file and
applicable Federal Rules of Civil Procedure and case law. The Court now being fully
informed makes the following findings, conclusions of law, and recommendation that the
Motion be denied.
The pro se plaintiff is in the custody of the Colorado Department of Corrections
(“CDOC”) and is currently incarcerated at the Buena Vista Correction Complex (“BVCC”).
The operative pleading is the Amended Prisoner Complaint (Docket No. 18). Plaintiff
asserts that Defendants have violated his constitutional rights, including his Eighth
Amendment right to humane conditions, his constitutional right to bodily privacy, and his
Fourteenth Amendment due process and equal protection rights. The crux of Plaintiff’s
Amended Prisoner Complaint (Docket No. 18) is that inmates in Plaintiff’s housing unit are
forced to undress and use the toilet in their cells in full view of female staff because their
cells have bars instead of walls and their privacy curtains have been removed. Plaintiff also
alleges that he has received threats from other inmates because he has complained about
these problems.
Plaintiff is proceeding pro se. The Court, therefore, reviews his pleadings and
other papers liberally and holds them to a less stringent standard than those drafted by
attorneys. Trackwell v. United States Government, 472 F.3d 1242, 1243 (10th Cir.
2007). See also Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding allegations of
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a pro se complaint to less stringent standards than formal pleadings drafted by
lawyers). However, a pro se litigant’s conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). A court m ay not assume that a plaintiff
can prove facts that have not been alleged or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v.
California State Council of Carpenters, 459 U.S. 519, 526 (1983). See Whitney v. New
Mexico, 113 F.3d 1170, 1173–74 (10th Cir.1997) (court m ay not supply additional
factual allegations to round out a plaintiff’s complaint or construct a legal theory on
plaintiff’s behalf); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (the
court may not “construct arguments or theories for the plaintiff in the absence of any
discussion of those issues”).
Plaintiff claims in the Motion that he is housed in the only one of the three
medium security level units that has no visual obstruction to prevent female staff from
watching the male inmates use their cell toilets. The door and walls of the cells in this
unit are made of steel bars rather than non-transparent walls. When Plaintiff arrived at
BVCC, the front wall of the cells in his living unit had black privacy curtains, but there
was no privacy curtain on the cell door. The existing privacy curtains were removed by
staff in November 2016; female staff members now have a completely unobstructed
view into Plaintiff’s cell when he uses the toilet or undresses. Plaintiff states that female
staff members have repeatedly seen him using his cell toilet, in violation his
constitutional rights. He asks the Court to enter a preliminary injunction ordering the

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Defendants to provide privacy curtains or to otherwise “substitute, restore, and maintain
the full function of the non-transparent cell door and front wall of the other medium
security level cells and units within the facility.” (Docket No. 2 at 16.)
Injunctive relief is an extraordinary remedy that should be granted only when the
moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ.
of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). In the T enth Circuit, the party
requesting a temporary restraining order (“TRO”) or a preliminary injunction (“PI”) must
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. See id.;
Brode v.. Chase Home Finance, LLC, 2010 WL 1258066, *2 (D.Colo. Mar. 25, 2010).
It is well established that “[b]ecause 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). “[A] plaintiff satisfies the irreparable harm requirement by
demonstrating ‘a significant risk that he or she will experience harm that cannot be
compensated after the fact by monetary damages. . . . Purely speculative harm will not
suffice . . ..” RoDa Drilling Co v. Siegal, 552 F.3d 1203, 1210 (10th Cir.2009). See also
Sims v. New, 2008 WL 5044554, *2 (D. Colo. Sept. 2, 2008) (inmate’s speculation that

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he may suffer acts of retaliation, including placement in segregation or a transfer,
without more does not establish irreparable harm for purposes of imposing injunctive
relief).
Furthermore, because the limited purpose of a PI is merely to preserve the
relative positions of the parties until a trial on the merits can be held, the following three
types of “specifically disfavored preliminary injunctions” are “closely scrutinized”: “(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). Finally, the Court is reminded that it is “well-established law that
prison management functions should be left to the broad discretion of prison
administrators to enable them to manage prisons safely and effectively. . . . Courts
should grant injunctive relief involving the management of prisons . . . only under
exceptional and compelling circumstances.” Walker v. Meyer, 2009 WL 1965493, *4 (D.
Colo. July 8, 2009) (citations omitted).
Turning to the Motion at issue, the Court finds that Plaintiff is not entitled to a PI
or TRO because he has not established that he will suffer irreparable injury unless an
injunction issues. First, he has failed to demonstrate that his current conditions do not
meet applicable privacy standards. Second, he has not demonstrated that he is in
danger of suffering imminent, irreparable harm.
Had Plaintiff filed this motion a year ago, a different result may have been
warranted. A Prison Rape Elimination Act (“PREA”) audit was conducted at BVCC in
May 2016. (Docket No. 15-3.) Although the subsequent report found that BVCC met the
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standard for cross-gender viewing and searches, it noted that the unit where Plaintiff is
housed
[H]ave open bar cells which provided less than appropriate
privacy to offenders from opposite gender/cross gender
viewing during restroom use within their cell. BVCF had
previously noted this as an area of concern and had started
the process of receiving quotes to place an order for privacy
screens. Auditor required BVCF administration to take
immediate action to allow offenders to cover the area from
opposite gender view when using the restroom until they are
able to receive the appropriate privacy screens.
(Id. at 10.) BVCC administration apparently allowed offenders to cover the bars on their
cells until PREA-compliant screens could be installed. (Id.) According to the Affidavit of
David Lisac (Docket No. 15-1), who serves as BVCC’s PREA coordinator, offenders
were permitted to use sheets or towels to obstruct the view of their cells prior to the
audit as well. (Docket No. 15-1 ¶ 8.) However, after the PREA-compliant screens were
utilized in July 2016, it was determined that the dark sheets that offenders were hanging
in front of their bunks constituted a safety hazard and the sheets were removed. (Id. ¶
13.) The PREA-compliant screens, which are opaque rather than completely dark
(again, for safety purposes), remained in the cells. (Id. ¶¶ 9, 13.) Moreover, Major Lisac
states that when a female staff member enters the unit, they first turn a key that
activates an automated voice announcement warning that female staff members will be
entering the cell. (Id. ¶ 14.)
Based upon the documentation provided to the Court, the Court finds that
Plaintiff has not demonstrated the existence of exceptional and compelling
circumstances at BVCC that mandate injunctive relief. Although Plaintiff contends that

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the public announcement system is not used, he admits that screens are present in his
cell (Docket No. 19 at 1.) Plaintiff argues that these sheets are small, “completely
transparent,” and were not installed until October 2016. (Id.) However, the screens are
undoubtedly there now, and Plaintiff does not argue that they are not in compliance with
the PREA. Thus, Plaintiff has not met his burden of irreparable harm based on an
unreasonable and unconstitutional invasion of privacy.
Further, the Court agrees with Defendants that Plaintiff has failed to provide
specific instances showing that his mental and physical well-being is at imminent risk.
Plaintiff’s claim that PTSD treatment has been affected by his living conditions in
conclusory and devoid of details or supporting documentation. Similarly, Plaintiff states
that he has been threatened and suf fered a shoulder injury after another inmate
attacked him. However, Plaintiff provides no details as to how he is currently in danger.
In a January 20, 2017 Grievance, which was attached to Plaintiff’s Complaint (Docket
No. 1-2 at 14), Plaintiff states that he was threatened by other offenders “starting on 1025-2016 through 12-3-2016,” but he makes no reference to any more recent threats
indicating he is in certain, imminent danger of physical harm. Thus, any harm is wholly
speculative in nature, and cannot support Plaintiff’s request for injunctive relief.
In light of Plaintiff’s failure to establish irreparable harm, the Court need not
analyze the three additional elements that must be established to obtain a preliminary
injunction. See Caught Fish Enters., LLC v. Action Mfg., LLC, 2010 WL 2508397, *2 (D.
Colo. June 17, 2010).

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Plaintiff has failed to carry his burden of establishing that the circumstances
under which he is currently incarcerated give rise to a substantial risk of serious harm or
place him in imminent danger. Accordingly, as Plaintiff has failed to satisfy the four
prerequisites for obtaining a preliminary injunction, the undersigned respectfully
RECOMMENDS that Plaintiff’s Emergency Motion for T.R.O. (Temporary Restraining
Order) and/or Preliminary Injunction; Alternatively, Writ of Habeas Corpus Ad
Testificandum and/or Subpoena(s) – Due to Continuous Retaliation (Docket No. 2) be
DENIED.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999);
Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

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Done this 7th day of April 2017.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE

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