United States District Court, D. Colorado
MAKEEN INVESTMENT GROUP, LLC, as trustee for THE MAKEEN FAMILY CHILDRENS TRUST; and AKEEM MAKEEN, Plaintiffs,
STATE OF COLORADO; JUDGE MICHAEL JAMES VALLEJOS; JUDGE JENNIFER TORRINGTON; MAX A. MINNIG, JR. & ASSOCIATES, LLC; MAX A. MINNIG, JR., individually and in his official capacity as agent for GEORGE E. HAILEY; and GEORGE E. HAILEY, Defendants.
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
matter is before the Court on “Plaintiff Makeen's
Affidavit and Motion for Temporary Restraining Order and
Preliminary Injunction” (“Motion”) (ECF No.
34), seeking injunctive relief against Defendants State of
Colorado, Judge Michael James Vallejos, and Judge Jennifer
Torrington (collectively, “State Defendants”).
Plaintiff Akeem Makeen (“Makeen”) seeks
enforcement of the parties' alleged “contract and
Colorado Supreme Court Directive 04-7 to provide a ADA
accommodations of a note taker contract at each and every
District Court appearance of Mr. Makeen.” (Motion,
pages 1-2.) State Defendants filed a Response (ECF No. 62),
to which Plaintiff did not file any reply (see
Docket). After considering the Motion and Response, taking
judicial notice of the court record, and reviewing the
applicable rules and case law, and being otherwise fully
advised, the Motion is DENIED.
relevant to the Motion, Makeen alleges that he is a protected
person under the American with Disabilities Act
(“ADA”) and was a party in Civil Action
15CV253 filed in Denver District Court.
(See Motion, ¶¶1-4, 7, 9; Amended
Complaint, pp. 2, 30.) On January 4, 2016, State Defendants and
Makeen allegedly entered into a contract whereby the State
would provide Makeen with a note taker for each and every one
of his court appearances. The State Defendants allegedly
lived up to their contract until November 8, 2016. There, on
the second day of a two-day trial,  allegedly held before Judge
Vallejos in Civil Action 15CV253, State Defendants allegedly
failed to provide a note taker and refused to continue the
trial. Based on these, and other, allegations, Makeen filed
this action alleging many claims for relief, including the
Second Claim for Breach of Contract directed against the
State and Judge Vallejos. (AC, ¶¶93-103.)
Thereafter, Makeen's Motion seeking injunctive relief
requests a temporary restraining order and preliminary
injunctive relief. Notice has been provided to State
Defendants and they have responded to the Motion. Under
either form of injunctive relief, Makeen bears the burden of
showing such relief may be had. Specifically, in order to
obtain relief, the plaintiff must establish:
“‘(1) a substantial likelihood of prevailing on
the merits; (2) irreparable harm unless the injunction is
issued; (3) that the threatened injury outweighs the harm
that the preliminary injunction may cause the opposing party;
and (4) that the injunction, if issued, will not adversely
affect the public interest.'” Diné
Citizens Against Ruining our Environment v. Jewell,
839 F.3d 1276, 1281 (10th Cir. 2016) (quoting Davis v.
Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002)); Watts
v. Karmichael Family, LLC, No.
07-cv-00638-MSK-MJW, 2007 WL 1059051, at *1 (D. Colo. Apr. 4,
2007) (unpublished) (motion for temporary restraining order
is examined under same standards applicable to requests for
preliminary injunction). “Because a preliminary
injunction is an extraordinary remedy, the movant's right
to relief must be clear and unequivocal.”
Diné Citizens, 839 F.3d at 1281 (citation and
quotation marks omitted).
Tenth Circuit no longer applies a “modified
test” for determining temporary or preliminary
injunctive relief, finding it inconsistent with the Supreme
Court's decision in Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7 (2008).
Diné Citizens, 839 F.3d at 1282 (deciding
preliminary injunction). Nonetheless, under limited
circumstances, a court may presume irreparable harm.
First West. Capital Mgmt. Co. v. Malamed, 874 F.3d
1136, 1141 (10th Cir. 2017). Such circumstances exist
“when a statute mandates injunctive relief as a remedy
for a violation-or impending violation-of the statute, [as]
it has effectively constrained the courts' traditional
discretion to determine whether such relief is
warranted.” Malamed, 874 F.3d at 1141. In that
case, courts presume irreparable harm. Id.
“But when a statute merely authorizes-rather than
mandates-injunctive relief, courts must determine that the
moving party has established all four elements to grant
injunctive relief.” Id.
Pro Se Party
proceeds pro se; thus, the Court must liberally
construe his pleadings. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). The Court, however, cannot act as
advocate for Makeen, who must still comply with the
fundamental requirements of the Federal Rules of Civil
Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
has brought many claims in this case, but his Motion is based
on one claim, that of breach of contract. (Motion,
e.g., page 9 (In arguing likelihood of success on
the merits, Makeen argues that he “has put forward very
strong claims for breach of contract.”).) As such, the
Court will evaluate the Motion based on this claim, to which
Defendants raise a number of arguments. The Court finds two
arguments are fatal to Makeen's Motion,  which it
addresses in turn below.
first argument is that Makeen lacks standing. “At its
‘irreducible constitutional minimum, ' standing has
three elements.” Colo. Cross Disability Coalition
v. Abercrombie & Fitch Co., 765 F.3d 1205, 1210
(10th Cir. 2014) (quoting Lujan v. Defenders ofWildlife, 504 U.S. 555, 560 (1992)). The three
elements are (1) “injury in fact” that is actual
or imminent; (2) such injury must be fairly traceable to the
defendant's challenged action; and (3) the injury will
likely be addressed by the relief requested. Abercrombie
& Fitch Co., 765 F.3d at 1210-11. “The
‘injury in fact' requirement differs depending on
whether the plaintiff seeks prospective or retrospective
relief.” Abercrombie & Fitch Co., 765 F.3d
at 1211 (quotation marks and citation omitted). “When
prospective relief-such as an injunction-is sought, the
plaintiff must be suffering a continuing injury or be under a
real and immediate threat of being injured in the
future.” Abercrombie & Fitch Co., 765 F.3d
at 1211 (quotation marks and citation omitted). “Past
wrongs are evidence bearing on whether there is a real and