Lovett v. Ruda

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          KRISTEN L. MIX MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Emergency Affidavit and Motion for TRO and Preliminary Injunction, Seeking Injunctive Relief Against Defendant's [sic] [#46]^[1] (the “Motion”). Defendants filed a Response [#51] in opposition to the Motion. Plaintiff, who proceeds as a pro se litigant, ^[2] did not file a Reply. The Motion has been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c). See [#47]. Having reviewed the entire case file and being sufficiently advised, the Court respectfully RECOMMENDS that the Motion [#46] be DENIED.

         I. Summary of the Case

          At all times relevant to this lawsuit, Plaintiff has been a prisoner in the custody of the United States Bureau of Prisons (“BOP”) at the Florence Prison Camp in Florence, Colorado. Second Am. Compl. [#13] at 2. The remaining Defendants in this matter consist of the Food Service Supervisor Tammy Ruda (“Ruda”) and Correctional Officers Harrison, Thomas, Versaw, McClendon, ^[3] and Pena, all in their official capacities. Id. at 2-3; Order [#57] at 26 n.15.

         Plaintiff suffers from celiac disease, ^[4] and the following constitutional claims remain in this lawsuit, all of which primarily relate to provision of his food by BOP's staff: (1) Eighth Amendment Claims against Defendants Harrison, Thomas, McClendon, Versaw, and Pena in their official capacities to the extent that such claims are based on allegations that defendants failed to feed plaintiff for two days in a row on more than one occasion, and (2) First and Eighth Amendment claims against Defendant Ruda in her official capacity to the extent that those claims are based on conduct occurring on or after August 21, 2015.^[5]Order [#57] at 26 n.15. As a result of these alleged violations of his civil rights, Plaintiff seeks injunctive relief requiring BOP staff in their official capacities “to provide the Gluten-Free diet as directed by the BOP Medical Department, and to cease their harassment of [Plaintiff], and order that the BOP can not relocate [Plaintiff] in an effort to avoid this action . . . .” Id. at 27.

         Here, Plaintiff seeks a temporary restraining order and/or preliminary injunction providing him with the following relief:

(1) “An Order directing the officials to cease from retaliation towards the Plaintiff.” Motion [#46] at 20.

(2) “An Order directing the Officials to perform a detailed individualized consideration of the Plaintiff's request for Second Chance Act placement into [a Residential Reentry Center (“RRC”)], with a written detailed description of each point listed in the request, and why each point was denied, and how the consideration for RRC placement meets the factors set forth in 18 U.S.C. § 3621(b), and how these factors are equally applied at the Florence Prison Camp by each and every Team member.” Id. (internal citation omitted).

(3) “An Order directing the Officials to provide the Meta-Data showing each staff person who viewed, entered information and or deleated [sic] information on the BOP computer system on the Plaintiff's account.” Id.

(4) “An Order directing the Officials to provide a detailed explanation of how and who placed the Plaintiff on and altered his filed [sic] to denote that the Plaintiff is dangerous and required to be Black-Boxed and placed into Leg-Irons upon contact and transport.” Id.

(5) “An Order directing the Officials to correct and provide a detailed report of all of Plaintiff's good conduct, teaching, development of educational programs, tutoring, programming and all other ways that the Plaintiff has worked to improve the prison experience.” Id.

(6) “An Order directing the Defendants to supply a copy of the Gluten Free National Menu, and provide the contact information as to the person who drafted and approved said menu.” Id.

         II. Standard of Review

          “Where the opposing party has notice, the procedure and standards for issuance of a temporary restraining order mirror those for a preliminary injunction.” Emmis Commc'ns Corp. v. Media Strategies, Inc., No. 00-WY-2507CB, 2001 WL 111229, at *2 (D. Colo. Jan. 23, 2001) (citing 11A Charles Alan Wright, et al., Federal Practice and Procedure § 2951 (2d ed. 1995)). Defendants have received notice of the Motion [#46], as indicated by the ...