Opinion
Civil Action 19-cv-1550-CMA-KLM
09-20-2022
HUNTER ADAM MELNICK, Plaintiff, v. MELISSA LAWRENCE, RODNEY ACHEN, LORI STALCAR, ALLISON V. ROWLAND, LAURA BORREGO-GIBBS, KRISTY STANSELL, and AMY MOELLENBERG, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Emergency Motion for Preliminary Injunction or Temporary Restraining Order [#120] (the “Emergency Motion”) and Motion for Preliminary Injunction [#123] (the “Second Motion”) (collectively the “Motions”). In light of Plaintiff's pro se status, the Court construes his filings liberally, but must not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Defendants filed a Response [#130] in opposition to the First Motion [#120], and Plaintiff filed a Reply [#139]. Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c), the Motions have been referred to the undersigned for a recommendation regarding disposition. See [#121 and #124]. The Court has reviewed the briefs, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motions [#120 and #123] be DENIED.
“[#120]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
In construing the filings liberally, the Court should not “supply additional factual allegations to round out” a plaintiff's claim or “construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d at 1110). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
I. Background
Plaintiff has brought suit under 42 U.S.C. 1983, alleging that Defendants violated his First and Fourteenth Amendment rights by retaliating against him for criticizing the mental health policies of the Colorado Department of Corrections and for exercising his right to access the courts, and for violating his right to familial association by ordering him to cease contact with his wife. Plaintiff seeks relief in the form of nominal and compensatory damages.
The Emergency Motion [#120] at issue seeks an Order “forbidding the prohibition on Plaintiff and Plaintiff's wife living together.” Id. at 1. Plaintiff alleges that Defendants have refused to allow him and his wife to live together, and this is creating an unwarranted intrusion into his familial relationship. Id. Further, Plaintiff asserts that Defendants are violating his constitutional rights by not allowing him to live with his wife. Second Motion [#123] at 2-3. The Second Motion [#123], which the Court deems to be a supplement to the Emergency Motion [#120], simply provides additional authority for Plaintiff's request for injunctive relief.
Defendants argue that because Plaintiff is currently incarcerated, any restrictions placed on his living arrangements are purely hypothetical, and the Motions must be denied on ripeness grounds. Response [#130] at 2. Plaintiff disagrees, arguing that there is an impact now as to Plaintiff's wife and her living arrangements. See Reply [#139] at 1.
II. Analysis
Fed. R. Civ. P. 65 governs preliminary injunctions and restraining orders. When addressing a motion for temporary restraining order (“TRO”), the court applies the same standard it applies to a motion for preliminary injunction. See Kilman v. Brown, No. 19-cv-01419-RBJ-MEH, 2019 WL 8723240, at *2 (D. Colo. Oct. 22, 2019) (citing Hicks v. Jones, 332 Fed.Appx. 505, 508 (10th Cir. 2009)). Injunctive relief is an extraordinary remedy which should only be granted when the moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). Granting such “drastic relief,” United States ex rel. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989), “is the exception rather than the rule.” GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). In the Tenth Circuit, a party requesting injunctive relief must clearly establish the following: (1) the party will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; (3) the injunction, if issued, would not be adverse to the public interest; and 4) there is a substantial likelihood of success on the merits. Id.
As to Defendants' argument that this case is not ripe, Article III of the United States Constitution limits the jurisdiction of the federal courts to actual cases or controversies. U.S. Const. art. III, § 2, cl. 1. “In order for a claim to be justiciable under Article III, it must be shown to be a ripe controversy.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995). “Ripeness prevents the premature adjudication of abstract claims.” Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868, 879 (10th Cir. 2019) (internal quotations omitted). A claim “is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” United States v. Cabral, 926 F.3d 687, 693 (10th Cir. 2019) (internal quotations omitted). Even in situations where a preliminary injunction or temporary restraining order is sought, the claim must be ripe for the Court to exercise jurisdiction. Miller v. Austin, No. 22-CV-118-SWS, 2022 WL 3584666 (D. Wyo. Aug. 22, 2022), at *5. When a preliminary injunction is not ripe for review, the Court may not exercise jurisdiction and need not address the merits of the preliminary injunction. Hardre v. Markey, No. 20-CV-03594-PAB-KMT, 2021 WL 1541714 (D. Colo. Apr. 19, 2021).
In determining whether an issue is ripe for adjudication, courts are guided by a two-factor test which directs courts to consider both “the fitness of the issue for judicial resolution” and “the hardship to the parties of withholding judicial consideration.” Sierra Club v. Yeutter, 911 F.2d 1405, 1415-16 (10th Cir. 1990); Abbot Labs. V. Gardner, 387 U.S. 136, 149 (1967). With regard to the first factor-the issue's fitness for judicial resolution-the “main focus . . .is ‘whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all.'” Tillery v. Raemisch, No. 16-cv-0282-WJM-STV, 2017 WL 217816, at *3 (D. Colo. Jan. 18, 2017) (quoting Richardson, 64 F.3d at 1499); S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1158 (10th Cir. 2013). Under the second factor-the potential hardship to the parties of withholding judicial resolution-the inquiry “‘typically turns upon whether the challenged action creates a “direct and immediate” dilemma for the parties.'” Richardson, 64 F.3d at 1499 (quoting El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 495 (1st Cir. 1992)).
Here, Plaintiff is currently incarcerated, and while he references a September 2022 parole hearing (Emergency Motion [#120] at 1), it is uncertain whether he will be released from custody at that hearing or when such a releasemight occur. In fact, Plaintiff did not even provide the date of the hearing, and his release is uncertain given that he is currently serving an indeterminate sentence of 3 years to life. Response [#130] at 4. As a result of Plaintiff's custody status, he cannot currently reside with his wife, and it is unknown when that would even be a possibility. This is an issue that depends on the uncertain future event of Plaintiff's possible release on parole. Therefore, the challenged purported prohibition on Plaintiff living with his wife is not a “direct and immediate” dilemma that the Court may resolve. See Richardson, 64 F.3d at 1499. To the extent that Plaintiff may be claiming that the motion is ripe because his wife has been released and has been informed that Plaintiff may not live with her when he is released, Plaintiff may not obtain relief for anyone other than himself. See Warth v. Seldin, 422 U.S. 490, 499 (1975). His wife's situation thus does not impact the ripeness of Plaintiff's claim. Accordingly, the Court recommends that the Motions [#120 and #123] be denied for lack of ripeness.
The Court also finds that because any purported harm is uncertain and dependent on a future release date, Plaintiff cannot show irreparable injury. It is well established that “[b]ecause a showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction, the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered.” Dominion Video Satellite, Inc. v. Echostar Satellite Corp.,356 F.3d 1256, 1260 (10th Cir.2004) (citations omitted). To constitute irreparable harm, an injury must be certain, great, actual ‘and not theoretical.'” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir.2003) (quotation omitted). An injunction is only appropriate “to prevent existing or presently threatened injuries. One will not be granted against something merely feared as liable to occur at some indefinite time in the future[,]”. Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931), which is the situation here. This is another basis to deny the Motions.
III. Conclusion
For the foregoing reasons, IT IS RECOMMENDED that Plaintiff's Motions [#120 and #123] be DENIED.
IT IS ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).