United States District Court, D. Colorado
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 ยง 2951 (2d ed. 1995)). Defendants
have received notice of the Motion [#46], as indicated by the
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