United States District Court, D. Colorado
REPORT AND RECOMMENDATION PLAINTIFF'S MOTION TO
ADDRESS A CONFLICT OF INTEREST AND TRANSFER (DOCKET NO.
MICHAEL J. WATANABE UNITED STATES MAGISTRATE JUDGE
case is before this court pursuant to an Order of Reference
to Magistrate Judge issued by Judge Raymond P. Moore on June
21, 2016 (Docket No. 20). Now before the Court is the pro se
prisoner Plaintiff's Motion to Address a Conflict of
Interest and Transfer (Docket No. 76). Defendants filed a
response (Docket No. 78). No reply was replied. Judge Moore
referred the subject motion to the undersigned magistrate
judge (Docket No. 77). The Court has reviewed the
parties' filings (Docket Nos. 76 & 79), taken
judicial notice of the Court's entire file in this case,
and considered the applicable Federal Rules of Civil
Procedure, statutes, and case law. Now being fully informed,
the Court makes the following report and recommendation.
Court has recited in detail the facts of this case in earlier
rulings. See, e.g., Report and Recommendation on
Defendants' Motion to Dismiss (Docket No. 39). For the
purposes of this motion, it is sufficient to state the
following. Plaintiff is an inmate of the Colorado Department
of Corrections (“CDOC”). He is currently housed
in Buena Vista Minimum Center (“BVMC”), where
Defendants Robert Himschoot and Jason Lengerich are employed.
Plaintiff was given a facility job in the BVMC kitchen, where
his supervisor, “Murry” (apparently, one Sergeant
Murray) made menacing comments and threatened to hit him over
the head with a spoon. Plaintiff alleges that Murray is
friends with Defendant Himschoot, and is retaliating against
Plaintiff for pursuing this lawsuit. He requests that he be
transferred to a different facility.
interpret Plaintiff's motion as one for a preliminary
injunction, and the Court follows suit. Injunctive relief is
an extraordinary remedy that should only be granted when the
moving party clearly and unequivocally demonstrates its
necessity. See Schrier v. Univ. of Colo., 427 F.3d
1253, 1258 (10th Cir. 2005). In the Tenth Circuit, a party
requesting injunctive relief must clearly establish the
following: (1) the party will suffer irreparable injury
unless the injunction issues; (2) the threatened injury
outweighs whatever damage the proposed injunction may cause
the opposing party; (3) the injunction, if issued, would not
be adverse to the public interest; and (4) there is a
substantial likelihood of success on the merits. Id.
It is well-established that “[b]ecause a showing of
probable irreparable harm is the single most important
prerequisite for the issuance of a preliminary injunction,
the moving party must first demonstrate that such injury is
likely before the other requirements for the issuance of an
injunction will be considered.” Dominion Video
Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d
1256, 1260 (10th Cir. 2004) (citations omitted). Moreover,
[b]ecause the limited purpose of a preliminary injunction is
merely to preserve the relative positions of the parties
until a trial on the merits can be held, we have identified
the following three types of specifically disfavored
preliminary injunctions . . . (1) preliminary injunctions
that alter the status quo; (2) mandatory preliminary
injunctions; and (3) preliminary injunctions that afford the
movant all the relief that [he] could recover at the
conclusion of a full trial on the merits.
Schrier, 427 F.3d at 1258-59 (citations omitted).
These disfavored injunctions are “more closely
scrutinized to assure that the exigencies of the case support
the granting of a remedy that is extraordinary even in the
normal course.” Id. at 1259. In requesting a
transfer to a different prison facility, Plaintiff seeks to
alter the status quo, meaning that the injunctive relief must
be denied unless Plaintiff demonstrates that his “right
to relief [is] clear and unequivocal.” Id. at
the law is well-established that prison management functions
should be left to the broad discretion of prison
administrators to enable them to manage prisons safely and
effectively. See, e.g., Meachum v. Fano, 427 U.S.
215 (1976). Courts should grant injunctive relief involving
the management of prisons only under exceptional and
compelling circumstances. Taylor v. Freeman, 34 F.3d
at 266, 269-70 n. 2 (4th Cir. 1994); see also Citizens
Concerned for Separation of Church & State v.
Denver, 628 F.2d 1289, 1299 (10th Cir. 1980). Indeed,
the Tenth Circuit has stated that it “abhor[s] any
situation or circumstance requiring the intervention of the
federal courts in matters involving the administration,
control and maintenance by the sovereign states of their
penal systems. It is a delicate role assigned to the federal
courts to display that restraint so necessary in the
maintenance of proper federal-state relations.”
Battle v. Anderson, 564 F.2d 388, 392 (10th Cir.
1977) (quotation omitted). Therefore, “intervention in
the management of state prisons is rarely appropriate when
exercising the equitable powers of the federal courts. . . .
[This] is especially true where mandatory injunctive relief
is sought and only preliminary findings as to the
plaintiff's likelihood of success on the merits have been
made.” Taylor, 34 F.3d at 269 (citations
has not met his heavy burden in demonstrating a clear and
unequivocal right to injunctive relief, and therefore his
motion should be denied. Most importantly, Plaintiff has not
established that he will suffer irreparable harm if his
requested relief is denied. “To constitute irreparable
harm, an injury must be certain, great, actual ‘and not
theoretical.'” Heideman v. S. Salt Lake
City, 348 F.3d 1182, 1189 (10th Cir. 2003) (quoting
Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.
Cir.1985)). Irreparable harm is more than “merely
serious or substantial” harm. Id. (citation
omitted). The party seeking the preliminary injunction
“must show that the injury complained of is of such
imminence that there is a clear and present need for
equitable relief to prevent irreparable harm.”
Id. (quotation omitted). Therefore, to demonstrate
irreparable harm, Plaintiff “must establish both that
harm will occur, and that, when it does, such harm will be
irreparable.” Vega v. Wiley, 259 Fed.Appx.
104, 106 (10th Cir. 2007). Finally, an injunction is only
appropriate “to prevent existing or presently
threatened injuries. One will not be granted against
something merely feared as liable to occur at some indefinite
time in the future.” Connecticut v.
Massachusetts, 282 U.S. 660, 674 (1931).
Plaintiff has not alleged that Defendants have acted in any
threatening manner. Instead, his complaints are about
Sergeant Murray's behavior. Sergeant Murray may indeed be
a friend of Defendant Himschoot, but Plaintiff does not
allege that Defendant Himschoot is acting in concert with
Murray or encouraging her to place him in harm's way.
Moreover, while Plaintiff alleges that Sergeant Murray
verbally harasses him, he has failed to show that he will
actually suffer serious and irreparable physical injury if
such harassment is not enjoined. Indeed, it appears that
Plaintiff no longer works with Sergeant Murray at all.
See Exhibit D to Defendant's Response (Docket
No. 78-4). Finally, it is obvious that the mere fact that
Plaintiff is housed in the same facility as the Defendants
cannot by itself create the threat of irreparable harm. Any
other result would lead to complete chaos and would make
prison administration impossible.
Plaintiff has not met the first element necessary to order a
preliminary injunction, the Court declines to address the
three remaining requirements
hereby RECOMMENDED that Plaintiff's
Motion to Address a Conflict of Interest and ...