United States District Court, D. Colorado
ORDER DENYING EMERGENCY MOTION FOR PRELIMINARY INJUNCTION (ECF NO. 5)
RAYMOND P. MOORE, District Judge.
Plaintiff Brandon Morris is in the custody of the Federal Bureau of Prisons ("BOP") and housed at the U.S. Penitentiary ("USP") in Florence, Colorado. He filed this lawsuit seeking mental health treatment and the termination of his referral to ADX (Administrative-Maximum U.S. Penitentiary) Florence.
This matter is now before the Court on Plaintiff's Emergency Motion for Preliminary Injunction ("Motion") (ECF No. 5), seeking relief also requested in his Complaint. Plaintiff also requests an evidentiary hearing. Defendants filed a response (ECF No. 20) in opposition, arguing that (1) the BOP has recently determined Plaintiff will not be transferred to the ADX "at this time" and (2) Plaintiff is receiving appropriate psychological and psychiatric care at USP Florence. The Court has considered the Motion, Response, the Court file, and the applicable statutes, rules and case law, and is otherwise fully advised in the premises. Upon such consideration, the Court finds no hearing is required and denies the Motion without prejudice.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
As stated, Plaintiff filed is an inmate at USP Florence. On August 31, 2015, Plaintiff filed this action stating he is awaiting transfer to ADX Florence, is actively suicidal, and is not receiving mental health treatment. On September 23, 2015, Plaintiff filed his Motion, stating he suffers from major depression and anxiety, and is presently contemplating suicide. Plaintiff seeks two forms of relief. First, Plaintiff seeks specific mental health treatment - the enrollment in the Psychology Treatment Program. Second, Plaintiff seeks to have his impending transfer to ADX Florence terminated, in light of his mental health and the treatment he seeks.
In response, Defendants conducted an "ADX Referral Analysis, " examined Plaintiff's history and concluded that Plaintiff should be placed in a "suitable facility" with access to mental health treatment to address his needs. Accordingly, Plaintiff will not be transferred to ADX Florence at this time. In addition, Dr. Kristen Moody, Deputy Chief Psychologist for the Federal Correctional Complex at Florence, examined Plaintiff's mental health history and, on October 13, 2015, conducted a suicide risk assessment of Plaintiff. As of that date, Dr. Moody concluded Plaintiff did not appear to have "clinically significant symptoms" but stated Plaintiff will continue to be seen for monthly Care2-MH contacts, with treatment based on reported symptom, and can consult with psychology services or telepsychiatry between his monthly appointments. Plaintiff will also continue with a treatment plan focused on "Cognitive Behavior Therapy for Depression."
II. STANDARD OF REVIEW
A. Preliminary Injunctions
Before a preliminary injunction may be issued, the moving party must establish: "(1) [he] 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) [he] has a substantial likelihood of success on the merits." Okla. ex rel Okla. Tax Comm'n v. Int'l Registration Plan, Inc., 455 F.3d 1107, 1112-1113 (10th Cir. 2006). The standard of proof varies depending on the type of injunction sought.
Where the injunction sought is prohibitory, i.e., requiring the nonmovant to stop acting in a manner that disturbs the status quo, the movant may be afforded relief under a lesser standard of proof on the likelihood-of-success-on-the-merits factor if he can show the other three requirements tip strongly in his favor. Id. at 1112-1113. Where the injunction sought is one of three types of disfavored injunctions,  however, the ordinary and/or lesser standard is inapplicable. Additionally, the movant must make a heightened showing to demonstrate entitlement to relief. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004) ( en banc ), aff'd and remanded, 546 U.S. 418 (2006) (" O Centro "). The request must be more closely scrutinized to assure that the exigencies of the case require extraordinary interim relief. O Centro, 389 F.3d at 975, 978-979. Determining whether an injunction is mandatory or prohibitory can be "vexing." Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005) (quotation marks and citation omitted).
B. Plaintiff's Pro Se Status
Plaintiff proceeds pro se. The Court, therefore, reviews Plaintiff's 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). However, the Court should not act as the pro se litigant's advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
A. Referral ...