United States District Court, D. Colorado
ORDER
SCOTT
T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on four Motions filed by Plaintiff
Victoria Wright: (1) the Motion for Order to CDOC/CDOC-DWCF
Director of Clinical and Correctional Services to Provide
Medical Care, Pain Management, Treatment Plan(s) Regarding
Plaintiff’s 9/25/2018 Sustained Injuries and Order for
2nd Medical Opinion by Non-CDOC Medical Expert (the
“Motion for TRO”) [#64]; (2) two Motions
regarding submission of an accurate copy of a Colorado
Department of Corrections (“CDOC”) administrative
regulation (“AR”) (the “AR Motions”)
[##70, 73]; and (3) a motion regarding whether Plaintiff has
been provided with adequate supplies for Court filings (the
“Supplies Motion”) [#71] (collectively, the
“Motions”).[1] The parties have consented to proceed
before the undersigned United States Magistrate Judge for all
proceedings, including entry of a final judgment. [#26, 48,
49] The Court has carefully considered the Motions and
related briefing, the entire case file, the applicable case
law, and has determined that neither further briefing nor
oral argument would materially assist the Court in resolving
the Motions. For the following reasons, the Court
DENIES the Motions.
On
March 18, 2019, Plaintiff, a prisoner in the custody of the
Colorado Department of Corrections (“CDOC”) at
the Denver Women’s Correctional Facility
(“DWCF”), filed an Amended Prisoner Complaint-the
operative complaint-that asserted seven causes of action
against 15 separate defendants. [See generally #16]
Plaintiff’s First Claim asserted an Eighth Amendment
excessive force claim against various DWCF officers,
including Defendant Sergeant Robert J. Gess, based upon an
incident that occurred on September 25, 2018. [#17 at 3]
Plaintiff’s Second Claim asserted a due process
violation against various prison officials. [Id. at
6] Plaintiff’s Third Claim asserted an Eighth Amendment
medical treatment claim against various DWCF officials and
health care staff based upon allegedly inadequate medical
treatment, including with regard to the injuries Plaintiff
allegedly suffered as a result of the September 25, 2018
incident. [Id. at 7-8] Plaintiff’s Fourth
Claim alleged unspecified violations of her First Amendment
rights by various DWCF officers. [Id. at 9]
Plaintiff’s Fifth Claim asserted a First Amendment
violation against the warden of DWCF based upon an alleged
denial of access to free postage. [Id. at 10]
Plaintiff’s Sixth Claim asserted a religious freedom
and equal protection violation against the warden.
[Id. at 10-11] Plaintiff’s Seventh Claim
alleged that the chairperson of the Colorado Board of Parole
denied Plaintiff access to the courts. [Id. at 12]
On March 29, 2019, Senior District Judge Lewis T. Babcock
issued an order dismissing all of Plaintiff’s claims,
except the excessive force claim as alleged against Sergeant
Gess in his individual capacity and drew that claim to a
presiding judge. [#17]
The
Motion for TRO seeks an Order requiring the CDOC/CDOC-DWCF
Director of Clinical and Correctional Services to provide
Plaintiff medical care and access to a second medical opinion
from a non-CDOC medical expert for injuries Plaintiff
allegedly sustained as a result of the September 25, 2018
incident, upon which her excessive force claim is premised.
[#64] The Motion thus appears to seek the issuance of a
temporary restraining order (“TRO”) against a
non-party to the action-i.e., the CDOC/CDOC-DWCF
Director of Clinical and Correctional Services.[2]
The
issuance of a temporary restraining order (“TRO”)
is subject to the Court’s discretion. See Winnebago
Tribe of Neb. v. Stovall, 341 F.3d 1202, 1205 (10th Cir.
2003). Pursuant to Fed.R.Civ.P. 65(b)(1), a TRO may be issued
without notice to the adverse party or its attorney only if:
(A) specific facts in an affidavit or a verified complaint
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can
be heard in opposition; and (B) the movant’s attorney
certifies in writing any efforts made to give notice and the
reasons why it should not be required.
Injunctive
relief is intended to preserve the status quo until a final
determination of the parties’ rights can be reached.
See Otero Sav. and Loan Ass’n v. Fed. Reserve Bank
of Kan. City, 665 F.2d 275, 277 (10th Cir. 1981).
To
succeed on her request for a TRO, Plaintiff must establish:
(1) that there is a substantial likelihood that she will
prevail on the merits; (2) that, if the injunction is denied,
irreparable injury to Plaintiff will result; (3)
Plaintiff’s threatened injury outweighs whatever damage
the TRO may cause to the opposing party; and (4) the public
interest would not be adversely affected by the TRO. See
Soskin v. Reinertson, 260 F.Supp.2d 1055, 1057 (D. Colo.
2003). Granting a temporary restraining order is
extraordinary relief. See id.; Taxsalelists.com,
LLC v. Rainer, No. 09-cv-02898 REB-KMT, 2009 WL 4884273,
at *1 (D. Colo. Dec. 11, 2009). The right to such relief must
be clear and unequivocal. Doubleclick Inc. v.
Paikin, 402 F.Supp.2d 1251, 1254 (D. Colo. 2005).
Where,
as here, a party seeks an injunction against a non-party,
“it [ ] heightens the hurdle that must be cleared to
obtain the injunction: not only must the motion advance
considerations satisfying the traditional injunction factors
noted above but those considerations must also constitute the
‘appropriate circumstances’ . . . to justify
issuing an injunction against a non-party.” Andrews
v. Andrews, 160 Fed.Appx. 798, 800 (10th Cir. 2005).
Such “appropriate circumstances” require the
non-party to be “in a position to frustrate [or
facilitate] the implementation of a court order or the proper
administration of justice.” Id. at 799
(quoting United States v. New York Tel. Co., 434
U.S. 159, 174 (1977)).
Plaintiff
has not addressed-let alone demonstrated-any of the factors
necessary to satisfy her heavy burden to obtain a TRO. The
Motion also fails to make a showing that the CDOC/CDOC-DWCF
Director of Clinical and Correctional Services is “in a
position to frustrate [or facilitate] the implementation of a
court order or the proper administration of justice.”
Nor does it appear likely that Plaintiff would be able to do
so.
Instead,
Plaintiff’s Motion for TRO appears to be based upon
allegations that Plaintiff’s “serious medical
needs” are not being adequately treated by
DWCF-i.e., an Eighth Amendment claim against DWCF.
[#64 at 3] As previously noted, however, the Eighth Amendment
claim asserted in Plaintiff’s operative complaint was
dismissed and Plaintiff contends that she is not attempting
to revive that claim through the Motion (nor would that be
procedurally proper). Any request for medical treatment from
CDOC and DWCF thus is unrelated to any remaining claim,
cannot be provided by the only remaining defendant, and thus
is not the appropriate subject for an injunction in this
lawsuit. Accordingly, the Motion for TRO [#64] is
DENIED.
The
remaining Motions also lack merit. As to the AR Motions,
Plaintiff contends that Sergeant Gess has filed an inaccurate
and incomplete version of CDOC Administrative Regulation
850-04, which sets forth the formalized grievance process
that CDOC inmates must follow to properly exhaust their
administrative remedies. [#70; see also
#73; #59 at 5-6] Sergeant Gess attached AR 850-04 to his
reply in support of his Motion to Dismiss. [#59-2] First, the
Court notes that there is no indication that the exhibit
containing AR 850-04 is in any way inaccurate or incomplete,
and the Court accepts Sergeant Gess’ representation of
the accuracy of that exhibit. But regardless, the Court
denied Sergeant Gess’ Motion to Dismiss, including to
the extent it argued that Plaintiff failed to exhaust her
administrative remedies, and accordingly any argument or
claim Plaintiff may have with respect to the submission of AR
850-04 is moot. For these reasons, the AR Motions [##70, 73]
are DENIED.
Finally,
in the Supplies Motion, Plaintiff seeks an order from the
Court to ensure she is afforded access to adequate supplies
in order to litigate her case, including paper, envelopes,
and pens. Plaintiff’s numerous filings in this matter
undermine any claim that she has not had access to necessary
supplies, and the Court concludes that Plaintiff has not
faced any supplies shortages impacting her access to the
Court, or ability to litigate her case. Accordingly, the
Supplies Motion [#71] is DENIED.
For the
foregoing reasons, Plaintiff’s Motion for TRO [#64], AR
Motions [##70, 73], and Supplies Motion [#71] are
DENIED. In light of the Court’s ruling
on the Motion to Dismiss [#74], the stay of this case
is lifted, and the Status Conference set for
November 12, 2019 at 9:00 AM in Courtroom A-402 is converted
to a Scheduling Conference. Plaintiff and, if
applicable, her case manager, may participate in the
conference by calling the Court at 303.335.2365 at the
scheduled time. On or before October 29,
2019, the parties shall file a joint proposed
scheduling order in the form required pursuant to
D.C.COLO.LCivR 16.2. A copy of the instructions for the
preparation of the proposed scheduling order and the required
form can be downloaded from the court’s website at
www.cod.uscourts.gov. ...