Serna v. Denver Police Department et al

Filing 15

ORDER Denying Plaintiff's Construed #1 Motion for Preliminary Injunction, Denying as Moot Plaintiffs #13 Motion for Expedited Discovery, and Striking Plaintiffs Rule 15(a) Pleading Amendment. Plaintiff's Rule 15(a) Pleading Amendment (ECF No. #14 ) is STRICKEN. ORDERED by Judge William J. Martinez on 4/1/2021. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 21-cv-0789-WJM-MEH
FRANCISCO SERNA,
Plaintiff,
v.
DENVER POLICE DEPARTMENT, and
ANSELMO JARAMILLO,
Defendants.

ORDER DENYING PLAINTIFF’S CONSTRUED MOTION FOR PRELIMINARY
INJUNCTION, DENYING AS MOOT PLAINTIFF’S MOTION FOR EXPEDITED
DISCOVERY, AND STRIKING PLAINTIFF’S RULE 15(A) PLEADING AMENDMENT

This matter is before the Court on that portion of Plaintiff’s Complaint and Request
for Injunction that the Court has construed as a motion for preliminary injunction (“PI
Motion”). (ECF Nos. 1, 7.) Defendants Denver Police Department (“DPD”) and DPD
Officer Anselmo Jaramillo (jointly, “Defendants”) filed their response to the PI Motion on
March 24, 2021 (ECF No. 10), and Plaintiff filed his reply on March 27, 2021 (ECF No.
12). Having reviewed the parties’ filings, the Court finds that an evidentiary hearing is
not necessary to resolve the PI Motion.
Also before the Court are Plaintiff’s Motion for Expedited Discovery (ECF No. 13)
and Rule 15(a) Pleading Amendment (ECF No. 14).
For the reasons stated below, the Court denies the PI Motion, denies as moot the
Motion for Expedited Discovery, and strikes the Rule 15(a) Pleading Amendment.

I. BACKGROUND 1
Plaintiff is a licensed hemp producer from Texas. (ECF No. 12-1 ¶ 1.) On March
16, 2021, Plaintiff was stopped at the Transportation Security Administration (“TSA”)
security checkpoint while traveling through Denver International Airport. (ECF No. 1 at
4.) Plaintiff was traveling with 32 “plant clones or rooted clippings” and certificates of
compliance showing that the plants had a concentration of delta-9 tetrahydrocannabinol
(“THC”) of less than 0.3%, such that the plants are categorized as hemp under Subtitle G
of the Agricultural Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490 (2018)
(the “2018 Farm Bill”). (Id. at 5.) Although Plaintiff informed Officer Jaramillo that his
“paperwork demonstrated the plants were under 0.3% THC and therefore protected by
the 2018 Farm Bill,” Officer Jaramillo confiscated Plaintiff’s hemp plants. (Id.; ECF No.
12-1 ¶¶ 6–7.)
Plaintiff filed this action on March 17, 2021, alleging that Defendants have violated
Section 10114 of the 2018 Farm Bill. (ECF No. 1 at 3.) According to Plaintiff,
[a]s a licensed Texas hemp producer I am currently making
preparations for the grow season that if not done in a timely
manner will prevent a harvest this season. The clones
confiscated by the Denver Police must be kept under
permanent light and returned to me immediately so that I can
grow these mother plants to produce the starts necessary for
this season’s harvest. The irreparable injury I will suffer
without injunctive protection is the loss of this season’s hemp
harvest.
(Id. at 5.) He further states that “[t]he Denver Police must immediately enact interstate
commerce policies consistent with the [2018 Farm Bill] which forbids states from
prohibiting compliantly produced hemp plants from interstate commerce.” (Id.)
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Although the parties have slight differences in their factual accounts, such disputes do
not affect the outcome of the PI Motion. Accordingly, the Court accepts Plaintiff’s allegations as
true for purposes of this Order.

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II. PI MOTION 2
A.

General Preliminary Injunction Standard
A preliminary injunction is an extraordinary remedy; accordingly, the right to relief

must be clear and unequivocal. See Flood v. ClearOne Commc’ns, Inc., 618 F.3d 1110,
1117 (10th Cir. 2010). A movant must show: (1) a likelihood of success on the merits,
(2) a threat of irreparable harm, which (3) outweighs any harm to the non-moving party,
and (4) that the injunction would not adversely affect the public interest. See, e.g., Awad
v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012). Among the preliminary injunction
elements, “a showing of probable irreparable harm is the single most important
prerequisite.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256,
1260 (10th Cir. 2004) (internal quotation marks omitted).
Moreover, the Tenth Circuit endorses a heightened standard for “[d]isfavored
preliminary injunctions,” which do not
merely preserve the parties’ relative positions pending trial.
Instead, a disfavored injunction may exhibit any of three
characteristics: (1) it mandates action (rather than prohibiting
it), (2) it changes the status quo, or (3) it grants all the relief
that the moving party could expect from a trial win. To get a
disfavored injunction, the moving party faces a heavier
burden on the likelihood-of-success-on-the-merits and the
balance-of-harms factors: []he must make a strong showing
that these tilt in [his] favor.
Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 797 (10th Cir. 2019)
(citations and internal quotation marks omitted).
Because Plaintiff’s PI Motion seeks an injunction that mandates action and grants
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Because Plaintiff proceeds pro se, the Court will construe his pleadings liberally and
hold them to a “less stringent standard than formal pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Nonetheless, the Court cannot be a pro se
litigant’s advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

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all the relief that Plaintiff could expect from a trial win, he is seeking a disfavored
injunction. Therefore, Plaintiff must meet the Tenth Circuit’s heightened standard to
obtain the relief he seeks. See id.
B.

Irreparable Harm
“A plaintiff suffers irreparable injury when the court would be unable to grant an

effective monetary remedy after a full trial because such damages would be inadequate
or difficult to ascertain.” Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269
F.3d 1149, 1156 (10th Cir. 2001); see also Salt Lake Tribune Publ’g Co., LLC v. AT&T
Corp., 320 F.3d 1081, 1105 (10th Cir. 2003) (“Irreparable harm, as the name suggests,
is harm that cannot be undone, such as by an award of compensatory damages or
otherwise.”). Irreparable harm “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).
Defendants argue that Plaintiff “cannot show irreparable harm here, where his
claimed loss is exclusively the loss of personal property and economic profits from a
hemp crop” since “these losses can be remedied by money damages.” (ECF No. 10 at
7.) Defendants further contend that Plaintiff has not shown that he will suffer irreparable
harm unless the Court enters an injunction requiring DPD to adopt new policies
regarding interstate transportation of hemp, as Plaintiff “does not allege any plans to
travel through Denver International Airport to transport hemp in the immediate future.”
(Id. at 8.)
In his reply, Plaintiff does not respond directly to Defendants’ argument that he
has failed to establish irreparable harm. (See generally ECF No. 12.) Instead, he
contends that he “believes that expedited discovery to address the compliance failure
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that resulted in the confiscation of Plaintiff’s hemp plants will most directly address the
potential role for a preliminary injunction.” (Id. at 5–6; ECF No. 13.) Significantly,
however, Plaintiff does not explain how expedited discovery will help him establish that
he will suffer irreparable harm unless an injunction is entered.
After careful consideration of the parties’ arguments, the Court concludes that
Plaintiff has failed to meet his burden to establish irreparable harm. While Plaintiff
argues that he may suffer the “loss of this season’s hemp harvest” if Defendants do not
return his hemp plants, he does not allege that his hemp plants are irreplaceable or that
their value is difficult to determine. If Plaintiff loses his seasonal hemp harvest and
succeeds in his lawsuit against Defendants, Defendants should compensate Plaintiff for
the value of his lost harvest. However, because Plaintiff’s potential losses can be
compensated by monetary damages, they do not qualify as irreparable harm warranting
an injunction. See Fish v. Kobach, 840 F.3d 710, 751 (10th Cir. 2016) (recognizing that
party seeking injunction “must demonstrate a significant risk that he or she will
experience harm that cannot be compensated after the fact by money damages”); Salt
Lake Tribune Publ’g Co., 320 F.3d at 1105 (“Irreparable harm, as the name suggests, is
harm that cannot be undone, such as by an award of compensatory damages or
otherwise.”).
Likewise, Plaintiff has failed to demonstrate that he will suffer certain, actual, and
imminent harm unless the Court enters an injunction requiring DPD to adopt new policies
for transporting hemp through interstate commerce. (ECF No. 1 at 5.) Significantly,
Plaintiff does not allege that he plans to travel through Denver International Airport at any
point in the future, let alone imminently. Because the Court has no reason to believe that

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additional “harm is likely to occur before [the Court] rules on the merits,” there is no need
for the Court to issue interlocutory relief. See RoDa Drilling Co. v. Siegal, 552 F.3d
1203, 1210 (10th Cir. 2009) (recognizing that “[p]urely speculative harm will not suffice”).
Thus, Plaintiff fails to demonstrate a sufficient likelihood of irreparable harm, and
the Court need not examine the remaining elements of the preliminary injunction test.
Because the Court finds that Plaintiff has not established that he is entitled to a
preliminary injunction, Plaintiff’s related Motion for Expedited Discovery is moot.
III. RULE 15(a) PLEADING AMENDMENT
On March 31, 2021, Plaintiff filed a Rule 15(a) Pleading Amendment, which states
that “Plaintiff hereby amends his pleading to expand the relief sought to include the
following: return of his plants; monetary damages; other equitable and legal remedies the
[C]ourt finds proper.” (ECF No. 14.)
To the extent that Plaintiff wishes to file an amended complaint, he must file a new
complaint incorporating his proposed amendments. He may not merely list his proposed
amendments in a separate document such that the parties and the undersigned must
review multiple documents to ascertain what Plaintiff is pleading. Moreover, the Court
notes that the Rule 15(a) Pleading Amendment does not comply with the Local Rules of
Practice for the United States District Court for the District of Colorado (the “Local
Rules”), namely the requirements for filing amended pleadings as a matter of course:
(a) Amendment as a Matter of Course or by Consent. A party
other than an unrepresented prisoner who files an amended
pleading under Fed. R. Civ. P. 15(a)(1) or with the consent of
the opposing party shall file a separate notice of filing the
amended pleading and shall attach as an exhibit a copy of
the amended pleading which strikes through (e.g., strikes
through) the text to be deleted and underlines (e.g.,
underlines) the text to be added.
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D.C.COLO.LCivR 15.1.
As a consequence, Plaintiff’s Rule 15(a) Pleading Amendment is stricken without
prejudice to refiling an amended complaint that conforms to the Federal Rules of Civil
Procedure, the Local Rules, and the undersigned’s Revised Practice Standards.
IV. D CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

That portion of Plaintiff’s Complaint and Request for Injunction that the
Court has construed as a motion for preliminary injunction (ECF No. 1) is
DENIED;

2.

Plaintiff’s Motion for Expedited Discovery (ECF No. 13) is DENIED as
MOOT; and

3.

Plaintiff’s Rule 15(a) Pleading Amendment (ECF No. 14) is STRICKEN.

Dated this 1st day of April, 2021.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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