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Makeen Investment Group, LLC v. State

United States District Court, D. Colorado

March 12, 2018

MAKEEN INVESTMENT GROUP, LLC, as trustee for THE MAKEEN FAMILY CHILDRENS TRUST; and AKEEM MAKEEN, Plaintiffs,
v.
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.

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         As 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[1] filed in Denver District Court. (See Motion, ¶¶1-4, 7, 9; Amended Complaint, pp. 2, 30.)[2] 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, [3] 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 followed.

         II. LEGAL STANDARD

         A. Injunctive Relief

         Makeen 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).

         The Tenth Circuit no longer applies a “modified test”[4] 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.

         B. Pro Se Party

         Makeen proceeds pro se[5]; 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).

         III. ANALYSIS

         Makeen has brought many claims in this case, but his Motion is based on one claim, that of breach of contract.[6] (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, [7] which it addresses in turn below.

         A. Standing

         Defendants' 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). ‚ÄúPast wrongs are evidence bearing on whether there is a real and ...


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