United States District Court, D. Colorado
OPINION AND ORDER DENYING MOTION FOR TEMPORARY
S. Krieger, Chief United States District Judge
MATTER comes before the Court pursuant to Ms.
Jesuale's pro se Motion for Temporary
Restraining Order (# 2).
Jesuale's Complaint (# 1) is somewhat
rambling, but the pertinent facts are ascertainable. In or
about 2014, she and her then-husband, Defendant Donald
Oelsner, purchased a home in the Buell Mansion Neighborhood,
a community governed by a homeowner's association
(Defendant Buell Mansion Owners Association, Inc., hereafter
“the Association”). Ms. Jesuale, who suffers from
a variety of disabilities and relies upon a service dog,
intended to construct a fence around the back yard of the
property. The Association's guidelines permitted the
building of fences upon the consent of adjoining neighbors.
Much of Ms. Jesuale's Complaint relates her frustrations
in dealing with her neighbors and the Association concerning
obtaining permission for the construction of the fence, but
because those events are not pertinent herein, the Court will
not address them in detail. It is sufficient to observe that
Ms. Jesuale and Mr. Oelsner did eventually construct a fence,
the Association brought litigation against them relating to
the fence, and Mr. Olsner apparently agreed to settle with
the Association by removing the fence.
on these facts, and others, Ms. Jesuale appears to assert
three claims against some or all of the named Defendants: (i)
discrimination in housing on the basis of disability in
violation of 42 U.S.C. § 3604(f) and C.R.S. §
24-34-502.2, in that the Defendants' resistance to the
construction of a fence deprived Ms. Jesuale of the
privileges of property ownership because of her disability
and deprived her of reasonable accommodations for that
disability; (iii) criminal conspiracy in violation of 18
U.S.C. § 241 (and perhaps a civil conspiracy in
violation of 42 U.S.C. § 1985), in that the Defendants
“conspired to illegally deprive [her] of her marital
property and her civil rights claims against the Association
and her neighbors and her marital asset of the values of the
fence, the marital property with the fence, the landscaping,
and the associated attoreny's fees”; and (iii)
promissory estoppel, apparently under Colorado common law, in
that the Association's guidelines and representations
promised her that she could build a fence on the property,
and that she relied upon those representations by agreeing to
purchase the property.
January 2017, Mr. Olsner filed for divorce from Ms. Jesuale
in the Colorado District Court for Arapahoe County. The
divorce is clearly contentious, although again, the Court
need not dwell on particular details recited by Ms. Jesuale.
At some point in time the Arapahoe County court authorized
Mr. Olsner to sell the couple's home. In July 2018, Mr.
Olsner entered into a contract of sale to sell the
house, and Ms. Jesuale alleges that the sale was intended to
close on August 15, 2018. She contends that, due to her
informing the buyers of her intention to file this suit
against Mr. Olsner and others, the buyers postponed the
closing of that sale to an undetermined date in the future.
Ms. Jesuale has filed a Motion for Temporary Restraining
Order (# 3), and although the specific
nature of the relief she requests is somewhat unclear, it
appears to the Court that she is asking for an injunction
preventing Mr. Olsner from completing the sale of the
property. She states, variously, that the sale is
“illegal[ ] under federal and state civil rights and
criminal laws” and “laws that give jurisdiction
to this court, ” that “the marital property . . .
is irreplaceable and selling it violates [Ms. Jesuale's
civil rights], ” and that she will be “asking for
the property to be awarded to her as partial satisfaction of
her prayer for relief” in the underlying action.
obtain an ex parte temporary restraining order, Ms.
Jesuale must first comply with Fed.R.Civ.P. 65(b)(1). That
rule requires her to: (i) demonstrate, via affidavit or
verified complaint, facts that show that she will suffer
irreparable harm before the defendants can be heard in
opposition, Fed.R.Civ.P. 65(b)(1)(A); and (ii) certify in
writing any efforts that the she has made to give the
defendants notice of the motion and the reasons why such
notice should not be required, Fed.R.Civ.P. 65(b)(1)(B). In
addition, Ms. Jesuale must also make a sufficient showing as
to the traditional elements for provisional injunctive
relief: (i) that there is an imminent and irreparable harm
that she will suffer if the injunction is not granted; (ii) a
substantial likelihood that she will prevail on the merits of
her claims; (iii) the balance of the equities favors the
granting of the request; and (iv) that the injunction would
not be contrary to the public interest. RoDa Drilling
Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009).
making particular findings, the Court will assume that Ms.
Jesuale has satisfied the requirements of Rule 65(b), and the
Court turns to the traditional injunction elements. The Court
finds that Ms. Jesuale has failed to show a likelihood of
success on any claim that would, as a remedy, entitle her to
retain possession of the property. It is Mr. Olsner who is
the ostensible owner of the property, the person attempting
to effectuate its sale, and thus, the only person who would
be enjoined if Ms. Jesuale's request is granted. Thus,
the Court looks specifically to the claims that Ms. Jesuale
has asserted against Mr. Olsner, not to the claims she
asserts against other Defendants. It would appear that Ms.
Jesuale's housing discrimination claims are not asserted
against Mr. Olsner: her articulation of that claim references
“Defendants Hursh, Debra and Roger Koenig, and the
Association” as parties subject to that claim. And Ms.
Jesuale's promissory estoppel claim cannot be asserted
against Mr. Olsner, as she makes clear that Mr. Olsner also
relied on the Association's promises when deciding to
purchase the property.
leaves only Ms. Jesuale's conspiracy claim asserted
against Mr. Olsner, and the contours of that claim are
decidedly unclear. She alleges that Mr. Olsner
“secretly entere[d] into negotiations and a
settlement” with the Association “over the fence
issue, ” apparently agreeing to remove the fence in
order to resolve the Association's lawsuit against him.
Ms. Jesuale contends that, by doing so, Mr. Olsner
“unilaterally estopp[ed her] from pursuing her civil
rights claims through federal agencies . . . and [from] being
able to safely use and enjoy her property.” To allege a
claim for a civil conspiracy under 42 U.S.C. § 1985, Ms.
Jesuale must allege facts showing that Mr. Olsner entered
into an agreement with others to either “participate in
an unlawful act, or a lawful act in an unlawful
manner.” See Halberstram v. Welch, 705 F.2d
472, 477 (D.C. Cir. 1983). The sole act that Mr. Olsner is
alleged to have performed - the removal of a fence from his
own property that he had previously constructed - is neither
unlawful nor allegedly accomplished in an unlawful way. Thus,
it is highly unlikely that Ms. Jesuale will succeed on her
conspiracy claim against Mr. Olsner and, thus, she is not
entitled to a preliminary injunction against him pending
resolution of that claim.
even assuming that Ms. Jesuale's claim against Mr. Olsner
was stronger, the Court would still refuse to grant her an
injunction prohibiting Mr. Olsner's sale of the property;
rather, the Court would abstain from hearing that request on
Younger grounds. The doctrine of Younger
abstention suggests that where there are ongoing state
judicial proceedings that concern an important state interest
- such as domestic relations - and the state proceedings
offer the plaintiff an adequate opportunity to litigate the
federal issues identified in the plaintiffs federal lawsuit,
the federal court should refrain from hearing claims that
would interfere with those state proceedings. Thompson v.
Reno, 728 Fed.Appx. 796 (10th Cir. 2018). To
the extent that federal law gives Ms. Jesuale some say in how
the property is maintained (or disposed of), it does not
appear that there is any impediment to her asserting those
federal rights in the Arapahoe County divorce proceedings.
See J.B. ex rel Hart v. Valdez, 186 F.3d 1280, 1292
(10th Cir. 1999). Thus, the Court would abstain
under Younger from hearing Ms. Jesuale's request
to displace the Arapahoe County court's order permitting
sale of the property in any event.
the Court DENIES Ms. Jesuale's Motion
for Temporary Restraining Order (# 3).
Moreover, for the reasons stated herein, the Court would also
deny any request by Ms. Jesuale for a preliminary injunction
based on the same facts and theories, and thus, to the extent
her motion can be construed to request a preliminary
injunction, it is denied as well.
 Although Ms. Jesuale represents herself in
this matter and would ordinarily be entitled to liberal
construction of her pleadings as a result, Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), her Complaint
indicates that she is a graduate of the University of
Michigan School of Law and was, at some point, licensed as an
attorney (although she is “not actively barred”).
The courtesy of construing pro se pleadings
liberally need not be extended to licensed attorneys.
Mann v. Boatright, 477 F.3d 1140, 1148 n. 4
(10th Cir. 2007). Nevertheless, the Court observes
that the outcome of this Order does not turn on whether Ms.
Jesuale's pleadings are granted liberal
 Ms. Jesuale alleges, among other things,
that the Arapahoe County court's decision was made
“without determining whether or not the property in
dispute is marital property, ” without determining the
fair-market value of the property, and that the court
required Mr. Olsner to comply with certain unspecified