Sheldon v. Williams et al

Filing 58

ORDER ON MOTION FOR PRELIMINARY INJUNCTION The Motion for Preliminary Injunction [Doc. 9 ] is DENIED. By Judge Nina Y. Wang on 2/7/2024. [Order mailed as directed, see ECF 59](norlin, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-00273-NYW-SBP
GARY SHELDON,
Plaintiff,
v.
BUREAU OF PRISONS (BOP),
MR. WILLIAMS (WARDEN),
Mr. TERRY (CSO MAILROOM),
MS. ASHLEY HERBST (PSYCHOLOGY),
Defendants.

ORDER ON MOTION FOR PRELIMINARY INJUNCTION
This matter is before the Court on the Motion for Preliminary Injunction filed by
Plaintiff Gary Sheldon (“Plaintiff” or “Mr. Sheldon”). [Doc. 9]. Defendants—the Federal
Bureau of Prisons (“BOP”), Warden Williams, Officer Terry, and Dr. Herbst (collectively,
Defendants”)—filed a response in opposition, [Doc. 43], and Plaintiff has replied, [Doc.
52]. For the reasons set forth in this Order, the Motion for Temporary Restraining Order
is respectfully DENIED.

BACKGROUND
The following facts are drawn from the Amended Prisoner Complaint. [Doc. 19]. 1
Plaintiff is in the custody of the BOP and is currently housed at FCI Englewood. [Id. at 2].
Plaintiff alleges that he is subject to a Correctional Management Plan (“CMP”), which
requires that his incoming mail be screened by prison officials. [Id. at 6]. Relevant here,
Plaintiff’s CMP restrictions provide that he is prohibited from possessing “any materials
that contain any type of sexual or sexually violent content” or “any materials that contain
or could reasonably be expected to contain any depiction of sexual content, nudity, or
pictures of models who are scantily clad . . . or in sexually provocative poses or positions.”
[Doc. 43-14 at 5].
According to Plaintiff, the FCI Englewood mailroom forwards his incoming mail to
Dr. Ashley Herbst, a psychologist, for screening. [Doc. 19 at 5–6]. Plaintiff claims that,
under BOP and federal regulations and under federal law, the only person authorized to
reject incoming mail is the warden, or if the warden is absent, the associate warden. [Id.
at 6]. He therefore takes issue with Dr. Herbst’s participation in the screening process.
[Id. at 5–6]. He also suggests that BOP and federal regulations permit inmates to possess
“[m]aterial not containing nudity or deemed to be sexually [explicit],” [id. at 6], and claims
that prison officials “misapply” applicable regulations “when ‘interpreting’ what they deem
to be sexually explicit or contain nudity,” [id. at 5]. He asserts that he will “demonstrate
the BOP or prison officials lack any penological interest in the banning or denying what is
otherwise permitted pursuant to regulations and statute.” [Id.].

Mr. Sheldon filed his Amended Prisoner Complaint after he filed the Motion for
Preliminary Injunction. See [Doc. 9; Doc. 19]. The allegations in the Amended Prisoner
Complaint are of the same nature as those in his original Complaint. See [Doc. 7].

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Plaintiff sought relief under the Administrative Procedure Act (“APA”), asking for a
Court order directing prison officials to comply with prison policies and federal regulations.
[Id. at 5–8]. The Amended Complaint was screened pursuant to D.C.COLO.LCivR 8.1,
see [Doc. 20], and the Honorable Susan Prose issued a Recommendation recommending
that Plaintiff’s APA claims be dismissed for lack of subject matter jurisdiction. [Doc. 22 at
9].

However, Judge Prose also construed Plaintiff’s Complaint as asserting a First

Amendment claim for prospective injunctive relief and declined to review that claim at the
initial screening step.

[Id. at 8–9, n.5].

Judge Prose recommended that the First

Amendment claim against Defendants be dismissed with prejudice to the extent it was
asserted against Defendants in their individual capacities, but insofar as the claim was
asserted against Defendants in their official capacities, she recommended that the claim
be drawn to a presiding judge. [Id. at 9]. The Honorable Lewis T. Babcock adopted Judge
Prose’s Recommendation, dismissed Plaintiff’s APA claims, dismissed Plaintiff’s claims
against Defendants in their individual capacities, and ordered that the First Amendment
claim asserted against Defendants in their official capacities for prospective injunctive
relief be drawn to a presiding judge. [Doc. 23 at 1–2]. The case was then reassigned to
the undersigned. [Id.].
LEGAL STANDARDS
I.

Rule 65
Federal Rule of Civil Procedure 65 authorizes the Court to enter preliminary

injunctions and issue temporary restraining orders.

Fed. R. Civ. P. 65(a), (b).

“Preliminary injunctions are extraordinary remedies requiring that the movant’s right to
relief be clear and unequivocal.” Planned Parenthood of Kan. v. Andersen, 882 F.3d

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1205, 1223 (10th Cir. 2018). A party seeking preliminary injunctive relief must make a
four-part showing: (1) that the movant has a likelihood of success on the merits of his
claims; (2) that the movant will suffer irreparable harm in the absence of preliminary relief;
(3) that the balance of equities tips in the movant’s favor; and (4) that the injunction is in
the public interest. Petrella v. Brownback, 787 F.3d 1242, 1257 (10th Cir. 2015). A party
seeking an injunction must demonstrate that “all four of the equitable factors weigh in its
favor,” Sierra Club, Inc. v. Bostick, 539 F. App’x 885, 888 (10th Cir. 2013) (emphasis in
original), and a “plaintiff’s failure to prove any one of the four preliminary injunction factors
renders its request for injunctive relief unwarranted,” Vill. of Logan v. U.S. Dep’t of Interior,
577 F. App’x 760, 766 (10th Cir. 2014).
The primary goal of a preliminary injunction is to preserve the pre-trial status quo.
“Status quo” is defined to be the last uncontested status between the parties that
preceded the controversy until the outcome of the final hearing. See Schrier v. Univ. of
Colo., 427 F.3d 1253, 1260 (10th Cir. 2005). Therefore, courts view the following types
of injunctions with caution:

(1) preliminary injunctions that alter the status quo;

(2) preliminary injunctions that require the nonmoving party to take affirmative action, i.e.,
“mandatory” preliminary injunctions; and (3) preliminary injunctions that give the movant
all the relief it would be entitled to if it prevailed in a full trial. RoDa Drilling Co. v. Siegal,
552 F.3d 1203, 1208 (10th Cir. 2009). Whether to issue a preliminary injunction lies in
the sound discretion of the trial court. See id.
II.

Pro Se Filings
In applying the above principles, this Court is mindful that Mr. Sheldon proceeds

pro se and the Court thus affords his papers and filings a liberal construction. Haines v.

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Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). But the Court cannot and does not
act as his advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and applies
the same procedural rules and substantive law to Plaintiff as to a represented party, see
Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir. 2002); Dodson v. Bd. of
Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
ANALYSIS
In the Motion for Preliminary Injunction, Plaintiff argues that prison officials’
enforcement of the CMP restrictions “hinder[s], impede[s,] and den[ies]” his ability to
freely exercise his First Amendment rights. [Doc. 9 at 1]. The exact relief sought in the
Motion for Preliminary Injunction is unclear, but he appears to request that this Court order
Defendants to cease enforcing the CMP restrictions against Plaintiff. See [id. at 2].
Plaintiff “prays the Court to issue the Preliminary Injunction specifically for Mr. Williams,
Warden, Dr. Ms. Herbst, psychology, Mr. Terry CSO Mailroom, their successors in office,
employment, agents, and all other prison officials acting in concern [sic] and participation
with them.” [Id. at 3–4].
Defendants oppose Plaintiffs’ Motion. See [Doc. 43]. They argue first that Plaintiff
is not likely to succeed on the merits of his claim, invoking their affirmative defenses of
failure to exhaust administrative remedies and claim preclusion. [Id. at 5–11]. They then
turn to the substantive merits of Plaintiff’s claim, asserting that Plaintiff cannot show that
the CMP restrictions requiring mail screening are unconstitutional.

[Id. at 11–15].

Furthermore, they argue that Plaintiff has not shown that he will suffer irreparable harm
absent a preliminary injunction, that the balance of equities are in his favor, or that an
injunction is in the public interest. [Id. at 15].

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For the reasons set forth in this Order, the Court concludes that Plaintiff has not
demonstrated that he is entitled to preliminary injunctive relief.
First, as mentioned above, the Motion for Preliminary Injunction does not make
clear the exact relief Plaintiff seeks. Plaintiff states that the Court “has jurisdiction to
mandate and compel[] . . . prison officials to follow and comply with their and [sic] federal
regulations and statute.” [Doc. 9 at 1]; see also [id. at 2 (arguing that “[t]he CMP is in
conflict with statute and regulations” and that “[r]equiring prison officials to adhere to their
own and federal regulations as a matter of law” is in the public interest)].
To the extent Plaintiff’s Motion can be construed as seeking a Court order directing
Defendants to comply with BOP regulations and federal regulations and statutes, the
Court cannot grant such relief under Rule 65, which “requires that an injunction be
reasonably specific in identifying what acts are prohibited or required, both to give notice
to the defendant of what is prohibited, and to guide an appellate court in reviewing the
defendant’s compliance or noncompliance with the injunction.” Keyes v. Sch. Dist. No. 1,
895 F.2d 659, 668 (10th Cir. 1990); see also Fed. R. Civ. P. 65(d)(1)(C) (requiring that all
injunctions “describe in reasonable detail—and not by referring to the complaint or other
document—the act or acts restrained or required”).
The Tenth Circuit has instructed that “injunctions simply requiring the defendant to
obey the law are too vague to satisfy Rule 65.” Shook v. Bd. of Cnty. Comm’rs of Cnty.
of El Paso, 543 F.3d 597, 604 (10th Cir. 2008) (quoting Monreal v. Potter, 367 F.3d 1224,
1236 (10th Cir. 2004)). Following this directive, courts within this Circuit have denied
requests for injunctive relief wherein the movant simply requests a court order directing
compliance with the law or facility regulations. See, e.g., Montoya v. Am. Online, Inc.,

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No. 6:07-cv-01078-BB-ACT, 2009 WL 10708276, at *11 (D.N.M. Apr. 29, 2009) (denying
request for injunctive relief that was “nothing more than a generalized request asking the
Court to force AOL to comply with the law”); cf. Shapiro v. Chapdelaine, No. 13-cv-03086WJM-KMT, 2015 WL 6549275, at *2 (D. Colo. Oct. 29, 2015) (dismissing claims for
injunctive relief where the plaintiff sought to require the defendants to follow CDOC
regulations). “Obey-the-law injunctions do not individuate, and so very often, they fail to
effectively tell the defendant what [s]he is supposed to do. There may be many ways to
violate the law, and many ways to comply; what is a violation is often at the heart of the
dispute.”

Acosta v. Finishing Pros., LLC, No. 18-cv-00978-RPM-NYW, 2018 WL

6603641, at *3 (D. Colo. Nov. 20, 2018) (quoting Douglas Laycock, Modern American
Remedies 274 (4th ed. 2010)). Accordingly, to the extent Plaintiff seeks a Court order
directing Defendants to comply with federal law or BOP regulations, the Court cannot
enter such an order.
Construing Plaintiff’s Motion liberally, however, it could also be read to request that
the Court order Defendants to no longer impose the CMP restrictions on Plaintiff. See,
e.g., [Doc. 9 at 2 (“The application of the CMP subjects Sheldon to incident reports,
sanctions and disciplinary actions, [further] denying Sheldon of otherwise legal and
permissible material. Accordingly, Sheldon is subject to imminent and irreparable injury
absent the injunction.”)]. Even so, the Court cannot conclude that Plaintiff is entitled to
preliminary relief under the four-part test. Indeed, Mr. Sheldon appears to seek most, if
not all, of the relief through a preliminary injunction that he would obtain if he prevailed
after a full trial. Compare [Doc. 9], with [Doc. 19]. Accordingly, Mr. Sheldon must satisfy
a heightened burden. See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,

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389 F.3d 973, 975 (10th Cir. 2004).
In addition, the Supreme Court has instructed lower courts to exercise restraint in
ruling on requests for preliminary injunctive relief in the prison context:
Running a prison is an inordinately difficult undertaking that requires
expertise, planning, and the commitment of resources, all of which are
peculiarly within the province of the legislative and executive branches of
government. Prison administration is, moreover, a task that has been
committed to the responsibility of those branches, and separation of powers
concerns counsel a policy of judicial restraint.
Turner v. Safley, 482 U.S. 78, 84–85 (1987). “Courts should grant preliminary injunctive
relief involving the management of prisons only under exceptional and compelling
circumstances.” Escobar v. Reid, No. 06-cv-01222-CMA-KLM, 2008 WL 4877009, at *3
(D. Colo. Nov. 12, 2008) (citing Taylor v. Freeman, 34 F.3d 266, 270 (4th Cir. 1994)),
aff’d, 348 F. App’x 387 (10th Cir. 2009). “[I]ntervention in the management of state
prisons is rarely appropriate when exercising the equitable powers of the federal courts.”
Taylor, 34 F.3d at 269. And the Tenth Circuit has said that, “[i]n the case of unprivileged
incoming and outgoing prison mail, regulation by prison officials is essentially an
administrative matter in which the courts will not intervene.” United States. v. Gordon,
168 F.3d 1222, 1228 (10th Cir. 1999) (quotation omitted). With these principles in mind,
the Court turns to Plaintiff’s arguments in favor of injunctive relief.
First, Mr. Sheldon contends that he is likely to succeed on his First Amendment
claim because he “will produce a set of Request for Admissions which will fully support
the assertions made in the Complaint by their own admission” and because “[t]he CMP
is in conflict with statute and regulations.” [Doc. 9 at 2]. However, Plaintiff does not
explain why the BOP’s alleged failure to comply with a federal statute or regulations
amounts to a constitutional violation. See [id.]. Even if Plaintiff is correct that the

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imposition of CMP restrictions on him is contrary to statutes or regulations, this would not
demonstrate that his First Amendment rights have been violated. See, e.g., Ernst v.
Creek Cnty. Pub. Facilities Auth., 697 F. App’x 931, 934 (10th Cir. 2017) (“[S]imply failing
to follow jail policies is not a constitutional violation in and of itself.”). Nor is his conclusory
statement that he stands a better than 50% chance of prevailing sufficient to satisfy his
burden of making a “heightened showing” to justify a mandatory injunction. See Cathey
v. Jones, 505 F. App’x 730, 733 (10th Cir. 2012).
Furthermore, while inmates have a First Amendment right to send and receive
mail, see Garcia v. Tafoya-Lucero, No. 1:22-cv-00129-JB-JHR, 2023 WL 3852919, at *4
(D.N.M. June 6, 2023) (collecting cases), the Supreme Court has instructed that prison
administrators should be afforded deference in their decisions to regulate prison mail, see
Thornburgh v. Abbott, 490 U.S. 401, 407–08 (1989) (“Acknowledging the expertise of
[prison] officials and that the judiciary is ill equipped to deal with the difficult and delicate
problems of prison management, this Court has afforded considerable deference to the
determinations of prison administrators who, in the interest of security, regulate the
relations between prisoners and the outside world.” (quotation omitted)). Prison officials,
therefore, may “impose restrictions on prisoner correspondence if those restrictions are
‘reasonably related to legitimate penological interests.’” Van den Bosch v. Raemisch,
658 F.3d 778, 785 (7th Cir. 2011) (quoting Turner, 482 U.S. at 89). In deciding whether
mail restrictions are reasonably related to legitimate penological interests, courts consider
four factors identified in Turner:
(1) whether a valid and rational connection exists between the regulation
and the asserted legitimate governmental interest; (2) whether alternative
means of exercising the constitutional right remain available to inmates;
(3) any effect accommodating the right would have on guards, inmates, and

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the allocation of prison resources; and (4) the absence of ready alternatives.
Sperry v. Werholtz, 413 F. App’x 31, 40 (10th Cir. 2011); see also Turner, 482 U.S. at
89–90.
In his Motion for Preliminary Injunction, Plaintiff does not expressly argue that the
CMP restrictions are not reasonably related to legitimate penological interests and does
not otherwise meaningfully explain why he is likely to succeed on the merits of his First
Amendment claim. See [Doc. 9 at 2]. Although Plaintiff proceeds pro se and the Court
must construe his filings liberally, the Court cannot make arguments on his behalf or act
as his advocate. Hall, 935 F.2d at 1110. And to the extent Plaintiff raises new arguments
about the preliminary injunction factors in his reply brief, see, e.g., [Doc. 52 at 3–4],
because those arguments were not raised in his original Motion, they have been waived,
see United States v. Leffler, 942 F.3d 1192, 1197 (10th Cir. 2019). Without prejudging
the merits of Plaintiff’s claim, the Court simply notes that “[c]ourts have routinely found
that institutional security, treatment of sex offenders, and creating a safe working
environment are all legitimate penological goals that justify regulating nudity and sexually
explicit content in the prison setting.” Odneal v. Schnell, No. 22-cv-03107-JRT-JFD, 2024
WL 95191, at *5 (D. Minn. Jan. 9, 2024) (collecting cases), report and recommendation
adopted, 2024 WL 363740 (D. Minn. Jan. 31, 2024). At this juncture, Mr. Sheldon has
not carried his heightened burden of showing a likelihood of success on the merits of his
claim.
In addition, Mr. Sheldon has not demonstrated that the balance of harms tips in his
favor or that an injunction is in the public interest. He makes no argument with respect to
the balance of equities, see generally [Doc. 9], which is a sufficient basis to deny Plaintiff’s

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Motion, see Vill. of Logan, 577 F. App’x at 766; see also Nagim v. Walker, No. 10-cv02973-WYD-KLM, 2011 WL 1542460, at *2 (D. Colo. Mar. 8, 2011) (“Given that Plaintiff
has failed to allege irreparable injury, injunctive relief is subject to denial on this basis
alone.”), report and recommendation adopted, 2011 WL 1542157 (D. Colo. Apr. 25,
2011). As for the public interest, Plaintiff asserts that “[t]he enforcement of constitutional
rights is very much in the public interest.” [Doc. 9 at 3]. To be sure, “[t]he public has an
interest in protecting First Amendment freedoms,” but this interest “is less weighty in
cases like this one, where the moving party has failed to show a likelihood of success on
the merits.” Odneal, 2024 WL 95191, at *10. “There is also the countervailing interest of
prison security to consider.” Id.; see also Franco v. Collins, No. 2:14-cv-00148, 2014 WL
7506869, at *1 (S.D. Tex. June 30, 2014) (“It does not serve the public’s interest for the
courts to micro-manage the screening of incoming, non-legal, inmate mail.”), report and
recommendation adopted as modified, 2015 WL 136544 (S.D. Tex. Jan. 8, 2015). Given
that this Court must exercise judicial restraint and must take care to not interfere with the
administration of prisons, see Turner, 482 U.S. at 84–85, the Court cannot conclude that
the balance of equities weighs in Plaintiff’s favor or that the requested injunction is in the
public interest.
In sum, Plaintiff has not demonstrated a clear and unequivocal right to the relief he
requests. The Court finds that the extraordinary remedy of a temporary restraining order
is not warranted at this time.

The Motion for Preliminary Injunction is respectfully

DENIED.

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CONCLUSION
For the reasons set forth herein, it is ORDERED that:
(1)

The Motion for Preliminary Injunction [Doc. 9] is DENIED; and

(2)

A copy of this Order shall be sent to:
Gary Sheldon, #13437-045
Englewood Federal Correctional Institution
Inmate Mail/Parcels
9595 West Quincy Avenue
Littleton, CO 80123

DATED: February 7, 2024

BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge

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