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Brown v. State

United States District Court, D. Colorado

September 14, 2017

STEVIE BROWN, Plaintiff,



         This civil action is before the court on Plaintiff Stevie Brown's “FTA Response Showing Good Cause and Motion for Temporary Restraining Order Pursuant to Fed.R.Civ.P. 65(2)(b)(1)” (“Motion for TRO”). [#64, filed August 16, 2017]. The Motion was referred to this Magistrate Judge pursuant to the Order Referring Case dated September 21, 2016 [#11] and the memorandum dated August 17, 2017 [#65]. This court has reviewed the Motion for TRO and the Response thereto, the applicable case law, and the entire case file, and, for the following reasons, recommends that the court DENY the Motion for TRO.


         Mr. Brown is an inmate within the custody of the Colorado Department of Corrections (“CDOC”), and is currently incarcerated at the Crowley County Correctional Facility (“CCCF”). Mr. Brown alleges that he was sentenced to CDOC for a term of two years to life pursuant to Colorado's Sex Offenders Lifetime Supervision Act of 1998. [#6 at 1]. Plaintiff initiated this action on August 9, 2016, by filing pro se a prisoner Complaint. See [#1]. At that time, Plaintiff was incarcerated at Fremont Correctional Facility. Id. The court granted Mr. Brown leave to proceed in forma pauperis under 28 U.S.C. § 1915, and, pursuant to a review of his claims under that statute, ordered Plaintiff to file an Amended Complaint. See [#4, #5]. On September 7, 2016, Mr. Brown filed an Amended Complaint asserting claims for the violation of his rights under Title II of the ADA and the Rehabilitation Act and the First Amendment, based on allegations that certain CDOC employees failed to accommodate his diagnosis of Bipolar I, improperly suspended and then terminated him from the Sex Offender Treatment and Monitoring Program (“SOTMP”), and retaliated against him in response to his filing grievances. See generally [#6]. In particular, Plaintiff alleges that he informed Defendant Stansell, his SOTMP therapist, that he was diagnosed with Bipolar I, and requested “specialized services, ” as available under Admin. Reg. 700-19 IV.G.3, for inmates participating in SOTMP who suffer from chronic mental illness. [#6 at 2]. He alleges that Defendants refused to accommodate his disability by providing these “specialized services, ” Defendant Stansell took “action against the plaintiff in regards to his disability, ” and that Defendants ultimately terminated him from SOTMP in retaliation for his attempts to informally resolve the problem through the filing of grievances. [#6 at 3-4, 6].

         By Order dated September 13, 2016, the court dismissed Plaintiff's pleading in part and assigned the remaining claims to the Honorable David M. Ebel, the presiding judge, who referred the matter to the undersigned Magistrate Judge for pre-trial management. See [#7]. The following claims and demands for relief remained pending: “(i) the ADA claim asserted against Defendant State of Colorado and Defendant Stansell in her official capacity; (ii) the First Amendment claim for damages against Defendant Stansell in her individual capacity; and (iii) any claim for prospective injunctive relief against Defendant Stansell in her official capacity.” [#7 at 5]. Following a Status Conference held November 17, 2016, [#16], Plaintiff filed a Second Amended Complaint [#18]. Defendants the State of Colorado and Kristie Stansell (collectively, “Defendants”) filed an Answer on December 7, 2016 [#19]. Plaintiff was relocated to CCCF the same day. See [#20].

         On June 8, 2017, Plaintiff filed a Motion to Amend, seeking to proceed on his theory of retaliation under the First Amendment, as opposed to the ADA. [#41]. Defendants did not object, and this court issued a Recommendation on July 26, 2017 that the court grant the motion and accept the Third Amended Complaint for filing. See [#53]. Judge Ebel adopted the Recommendation on August 15, 2017. See [#63].[1]

         On August 4, 2017, the undersigned held a second Status Conference to address extending certain pre-trial dates and deadlines in this case. See [#55, #56]. Plaintiff failed to attend the Status Conference, and he alleges that various officials at CCCF, where he remained housed, prevented him from attending. See [#58]. On August 16, 2017, Plaintiff filed the pending Motion for TRO, asking the court to “prevent[] those in authority within Crowley County Correctional Facility from interfering with his constitutional right to access the courts.” [#64]. On August 23, 2017, Plaintiff filed a Supplement to the Motion for TRO. [#67]. On September 6, 2017, Defendants filed a Response.[2] [#74].


         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). “When the opposing party actually receives notice of the application for a restraining order, the procedure that is followed does not differ functionally from that on an application for a preliminary injunction and the proceeding is not subject to any special requirements.” 11A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2951 (3d ed.) Because Defendants have notice of the Motion for TRO, and, indeed, filed a Response, the court treats the Motion for TRO as a motion for preliminary injunction.

         A preliminary injunction is considered an extraordinary remedy. See, e.g., Winter v. Nat'l Res. Defense Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). Thus, the right to such relief must be “clear and unequivocal.” Petrella v. Brownback, 787 F.3d 1242, 1256 (10th Cir. 2015) (quoting Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009)). A party seeking preliminary injunctive relief must satisfy four factors: a likelihood of success on the merits; a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in the movant's favor; and that the injunction is in the public interest. Id. at 1257. It is the movant's burden to establish each of these factors. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188-89 (10th Cir. 2003) (citation omitted).

         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. University of Colorado, 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 (“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) (citing O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (per curiam), affirmed, 546 U.S. 418 (2006)). Movants who seek a disfavored injunction must demonstrate a substantial likelihood of success on the merits, as well as a heightened showing of the other three elements. Id. (citing O Centro, 389 F.3d at 980). See also Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012) (the movant must show that the factors “weigh heavily and compellingly” in his or her favor). The court may grant a disfavored injunction only if the moving party demonstrates that the “exigencies of the case require extraordinary interim relief, ” and satisfies the heightened burden. RoDa Drilling, 552 F.3d at 1209 (citing O Centro, 389 F.3d at 978). “The determination of whether an injunction is mandatory as opposed to prohibitory can be vexing, ” but the United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) has explained that a mandatory injunction affirmatively requires the non-moving party to act in a particular way. Schrier, 427 F.3d at 1261. Whether to issue a preliminary injunction lies in the sound discretion of the trial court. See Id. at 1208 (citations omitted).

         Mr. Brown is appearing pro se, and thus the court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, the court's “role is not to act as [pro se litigant's] advocate, ” Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Accord Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). To prevail, Mr. Brown must satisfy the same procedural and substantive requirements as a represented party. Murray v. City of Tahlequah, Okla. 312 F.3d 1196, 1199 n.2 (10th Cir. 2008) (observing that a party's pro se status does not relieve him of the obligation to comply with procedural rules) (citation omitted); Dodson v. Bd. of Cty. Comm'rs, 878 F.Supp.2d 1227, 1236 (D. Colo. 2012).


         Mr. Brown asserts that his failure to attend the August 3 Status Conference was the result of the actions of C.O. Montenez, who told Plaintiff that “since they had not received notification from the court that day, the hearing would not be held, ” and who “adamantly refused to allow plaintiff to attend the hearing.” [#64]. Plaintiff further states that CCCF “was on lock-down status beginning July 31, 2017 until August 5, 2017, ” but that during the week of August 3, ...

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