United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR THE COURT TO PROVIDE PRELIMINARY INJUNCTIVE RELIEF (DKT.
#79),, PLAINTIFF'S MOTION TO APPOINT PSYCHIATRIST (DKT.
#81), AND PLAINTIFF'S MOTION TO AMEND (DKT. #82)
REID NEUREITER UNITED STATE MAGISTRATE JUDGE
case is before the Court pursuant to an Order (Dkt. # 83)
issued by Judge R. Brooke Jackson referring Plaintiff Calvin
Johnson's Motion for the Court to Provide Preliminary
Injunctive Relief (Dkt. #79), Motion to Appoint Psychiatrist
(Dkt. #81), and Motion to Amend Complaint. (Dkt. #82.) The
Court has carefully considered the motions, Defendants'
responses (Dkt. ##104-06), and Mr. Johnson's reply. (Dkt.
#107.) The Court has taken judicial notice of the Court's
file, considered the applicable Federal Rules of Civil
Procedure and case law, and makes the following
Court summarized the facts of this case in its Report and
Recommendation of Plaintiff's Motion to Dismiss Amended
Complaint (Dkt. #110), which is incorporated herein. On
December 3, 2018, Mr. Johnson filed the three subject
motions. His Motion for the Court to Provide Preliminary
Injunctive Relief (Dkt. #79) asks for an injunction to be
entered against the Colorado Department of Corrections
(“CDOC”) regarding his custody level
classification and other aspects of his confinement.
Similarly, Mr. Johnson's Motion to Amend Complaint (Dkt.
#82), requests that he be permitted to “redo” the
Request for Relief portion of his Amended Complaint to add
various claims for injunctive relief. In his Motion to
Appoint Psychiatrist (Dkt. #81), Mr. Johnson asks that the
Court order that a private practice psychiatrist take over
Mr. Johnson's mental health care from prison medical
doctors. The Court recommends that all three motions be
for Preliminary Injunction (Dkt. #79)
order to receive a preliminary injunction, the plaintiff must
establish the following factors: (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 Env't v.
Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (citation
omitted). “Because a preliminary injunction is an
extraordinary remedy, the movant's right to relief must
be clear and unequivocal.” Id. (citation
omitted). It is the movant's burden to establish each of
these factors. Heideman v. S. Salt Lake City, 348
F.3d 1182, 1188-89 (10th Cir. 2003) (citation omitted).
primary goal of a preliminary injunction is to preserve the
pre-trial status quo. Therefore, courts view the following
types of injunctions with caution: (1) preliminary
injunctions that alter the status quo; (2) preliminary
injunctions that require the nonmoving party to take
affirmative action (“mandatory preliminary
injunctions”); and (3) preliminary injunctions that
give the movant all the relief it would be entitled to if it
prevailed in a full trial. RoDa Drilling Co. v.
Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing
O Centro Espirita Beneficiente Uniao Do Vegetal v.
Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (per
curiam), aff'd, 546 U.S. 418 (2006)).
Johnson requests that the Court order “prison staff,
through Rick Raemisch, to send me back to MCC custody level
at Sterling Correctional Facility[, ] . . . and to never try
to give me a cellmate and allow me to do my table time alone
with no other prisoners[.]” (Dkt. #79 at 4) (extraneous
quotation marks omitted). Thus, he requests that the status
quo be altered. Movants who seek this type of a disfavored
injunction must demonstrate a substantial likelihood of
success on the merits, as well as a heightened showing of the
other three elements. RoDa Drilling, 552 F.3d at
1208 (citing O Centro, 389 F.3d at 980). See
also Fundamentalist Church of Jesus Christ of Latter- Day
Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012)
(the movant must show that the factors “weigh heavily
and compellingly” in his or her favor). The Court may
grant a disfavored injunction only if the moving party
demonstrates that the “exigencies of the case require
extraordinary interim relief, ” and satisfies the
heightened burden. Id. at 1209 (citing O
Centro, 389 F.3d at 978).
case involves claims by Mr. Johnson against Colorado State
Penitentiary (“CSP”) staff members Sgt. Soto and
Ms. Stevens for excessive force and deliberate indifference
to serious mental health needs, respectively. (See
generally Dkt. #23.) The relief sought in the subject
motion is entirely unrelated to these remaining claims.
Moreover, the requested injunctive relief cannot be granted
by the Defendants, who are sued in their individual capacity.
Rick Raemisch, the CDOC Executive Director to whom Mr.
Johnson directs his requests for injunctive relief, has
already been dismissed from this lawsuit. (See Dkt.
#27 at 22.) And, most significantly, Judge Babcock already
determined that Mr. Johnson's prior request for
preliminary injunctive relief regarding his mental health
treatment and classification (Dkt. #25) should be denied
because his allegations failed to establish the necessary
factors. (Dkt. #27 at 21.) This remains the case, and the
Court will not revisit Mr. Johnson's request for
preliminary injunctive relief.
to Appoint Psychiatrist (Dkt. #81)
to Mr. Johnson's Motion to Appoint Psychiatrist (Dkt.
#81), because Mr. Johnson requests that the Court appoint and
fund a psychiatrist from private practice to take over Mr.
Johnson's medical care from CDOC physicians, the Court
construes this as another motion for preliminary injunctive
relief that alters the status quo and is thus disfavored. Mr.
Johnson has not alleged the requisite factors to justify a
preliminary injunction, and has failed to demonstrate that
such extraordinary interim relief is necessary here.
Moreover, as Defendants note, he does not provide any legal
authority for his motion. Accordingly, the Court recommends
that Mr. Johnson's request for a court-appointed
psychiatrist be denied.
to Amend (Dkt. #82)
their response to Mr. Johnson's motion seeking leave to
amend his complaint (Dkt. #105), Defendants accurately point
out that it is unclear precisely what Mr. Johnson wants to
amend. In his reply (Dkt. #107), Mr. Johnson clarifies that,
as in his motion for preliminary injunction, he seeks to add
numerous claims for injunctive relief against the CDOC
through Mr. Raemisch. (Dkt. # 107 at 9-11.)
of the Federal Rules of Civil Procedure provides that
“[t]he court should freely give leave [to amend] when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Refusing
leave to amend is generally only justified upon a showing of
undue delay, undue prejudice to the opposing party, bad faith
or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of amendment.
Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d
1571, 1585 (10th Cir. 1993) (citing Foman v. Davis,
371 U.S. 178, 182 (1962)).
on April 24, 2018, the Court entered a Scheduling Order
setting a deadline of June 1, 2018 for the amendment of
pleadings. (Dkt. #63 at 6.) The subject motion was filed well
after that deadline. Where a motion to amend is filed after
the scheduling order deadline, a “two-step
analysis” is required. Pumpco, Inc. v. Schenker
Int'l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001).
“Once a scheduling order's deadline for amendment
has passed, a movant must first demonstrate to the court that
it has ‘good cause' for seeking modification of the
scheduling deadline under Rule 16(b).” Id.
This standard is more stringent that the lenient one
contained in Rule 15(a). Rule 16(b) does not focus on the bad
faith of the movant or the prejudice to the opposing party.
“Rather, it focuses on the diligence of the party
seeking leave to modify the scheduling order to permit the
proposed amendment. Properly construed, ‘good