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Watts v. Donley

United States District Court, D. Colorado

March 16, 2015

JESS WATTS, Plaintiff,
v.
CHRIS DONLEY, CHRIS DONLEY REAL ESTATE, GRANT W. LEWIS, LAW OFFICE OF GRANT W. LEWIS, KATHY ELLIOTT, Defendants.

ORDER

RAYMOND P. MOORE, District Judge.

This matter is before the Court on Plaintiff Jess Watts' "Emergency Motion for a Temporary Restraining Order and Preliminary Injunctive Relief" (ECF No. 9). For the reasons stated below, the Court DENIES Plaintiff's motion.

I. BACKGROUND

On February 17, 2015, Plaintiff filed a Verified Complaint ("Complaint")[1] alleging Defendants: (1) denied him due process pursuant to 42 U.S.C. § 1983 (ECF No. 1 at 16-20); (2) lacked standing to foreclose on a property owned by him (ECF No. 1 at 20-21); (3) engaged in mortgage fraud (ECF No. 1 at 21-22); (4) intentionally inflicted emotional distress (ECF No. 1 at 22-23); (5) slandered him (ECF No. 1 at 23-24); (6) deprived him of property pursuant to 42 U.S.C. § 1983 (ECF No. 1 at 24-25); (7) committed fraud on a court (ECF No. 1 at 25-26, 50); (8) engaged in a conspiracy pursuant to 42 U.S.C. § 1985(3) (ECF No. 1 at 50-51); and (9) wrongfully foreclosed on his property (ECF No. 1 at 51-53). Plaintiff's Complaint names as Defendants: (1) Chris Donley ("Donley"); (2) Chris Donley Real Estate (3) Grant W. Lewis ("Lewis"); (4) the Law Office of Grant W. Lewis; and (5) Kathy Elliott ("Elliott") in her official capacity as Public Trustee of Freemont County, Colorado. (ECF No. 1.) Plaintiff's Complaint does not specify any allegations against Elliott. ( See generally ECF No. 1.) Plaintiff's Complaint makes only allegations as to the capacities of Defendants Donley and Lewis. (ECF No. 1 at 3.) Plaintiff alleges that the Court has jurisdiction under 42 U.S.C. 1983 ("Section 1983").

The crux of Plaintiff's Complaint concerns property allegedly owned by him and upon which certain Defendants have engaged in a foreclosure action. ( See ECF No. 1 at 16.)

On March 12, 2015, Plaintiff filed the at-issue motion. (ECF No. 9.) Plaintiff seeks a temporary restraining order ("TRO") and a preliminary injunction ("PI") to restrain Defendants from engaging in a "non-judicial foreclosure proceeding and the sale of his propert[ies]." (ECF No. 9 at 1.)

II. LEGAL STANDARDS

A. Pro Se Status

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. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). 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 may 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. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf) (citation omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court may not construct arguments or theories for the plaintiff in the absence of any discussion of those issues) (citations omitted). Plaintiff's pro se status does not entitle him to application of different rules of civil procedure. See Hall, 935 F.2d at 1110; Wells v. Krebs, Case No. 10 CV 00023, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010) (citation omitted).

B. Preliminary Injunction

Before a preliminary injunction may be issued, the moving party must establish: (1) it will suffer irreparable injury unless the injunction issues, (2) the threatened injury outweighs any damage the proposed injunction may cause the opposing party, (3) if issued, the injunction would not be adverse to the public interest, and (4) it has a substantial likelihood of success on the merits. Fed.R.Civ.P. 65(a); Wilderness Workshop v. United States Bureau of Land Mgmt., 531 F.3d 1220, 1224 (10th Cir. 2008) (citation omitted). "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) (citation omitted).

C. Temporary Restraining Order

To obtain a temporary restraining order under Rule 65(b)(1)(a) of the Federal Rules of Civil Procedure, a plaintiff must show, via affidavit: (i) that he will suffer immediate and irreparable injury before the defendant can be heard in opposition; and (ii) the efforts he has made to give notice of the request to the opposing party, or to show why notice should be ...


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