Opinion
Civil Action No. 18-cv-00239-PAB-KLM
05-09-2019
FRANKY L. SESSION, Plaintiff, v. VANESSA CARSON, Health Service Administrator, LINDSEY E. FISH, Medical Doctor, TEDDY L. LAURENCE, Physician Assistant, TEJINDER SINGH, Physician Assistant, ROBERT L. MANGUSO, Medical Doctor, TIMOTHY R. BROWN, Medical Doctor, and CORRECTIONAL HEALTH PARTNERS, Insurer, and DOE 1, Correctional Officer, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Memorandum of Law in Support of Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction [#63] (the "Motion for Injunction") and on Plaintiff's Second Motion for Leave to Amend Caption, Defendants' Names, and Section B of the Second Amended Complaint for Injunction [sic] Relief Only [#97] (the "Motion to Amend"). Defendants Vanessa Carson, Teddy Laurence, and Robert Manguso filed a Response [#80] in opposition to the Motion for Injunction [#63], and Plaintiff, who proceeds as a pro se litigant, filed a Reply [#107]. In connection with the Motion to Amend [#97], Plaintiff filed a Prisoner Amended Complaint [#96], but no Response was filed. The Motions [#63, #97] have been referred to the undersigned for recommendation pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72.1(c). See [#65, #101]. Having reviewed the entire case file and being sufficiently advised, the Court respectfully RECOMMENDS that the Motions [#63, #97] be DENIED.
"[#63]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's electronic case filing and management system (CM/ECF). This convention is used throughout this Recommendation.
The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
I. Summary of the Case
At all times relevant to this lawsuit, Plaintiff has been a prisoner in the custody of the Colorado Department of Corrections ("CDOC"). See generally [#38]. Defendants in this matter consist of Correctional Health Partners and various medical and health services personnel. See id. The Court has construed Plaintiff's lawsuit as consisting of the following four remaining claims:
(1) Defendants Fish, Laurence, Singh, and Manguso have violated Plaintiff's Eighth Amendment rights. Since November 2014 Plaintiff has suffered from a large ventral hernia, a bullet over the lateral left 10th rib cage that eventually pulled free but caused infection, and a meniscus tear and cartilage damage to his left knee. Defendants Fish, Laurence, Singh, and Manguso have (1) disregarded Plaintiff's complaints of pain and suffering, (2) told him that X-rays did not show a hernia, (3) examined him for a hernia and told him they found nothing, (4) refused to provide pain medication, and (5) acknowledged his left knee was swollen but failed to refer Plaintiff to an orthopedic surgeon to evaluate his knee;
(2) Defendant Correctional Health Partners, in violation of Plaintiff's Eighth
Amendment rights, has created a policy or practice that limits, delays, or denies all initial requests for hernia specialist consultation for assessment, treatment plan, or surgery;Order [#40] at 2-3. As a result of these purported violations, Plaintiff seeks money damages, declaratory relief, and extensive injunctive relief.
(3) Defendants Carson and Doe I, in violation of Plaintiff's First and Fourteenth Amendment rights, have willfully and wantonly obstructed and impeded his efforts to file a timely grievance under the DOC Offender Grievance Procedure; and
(4) Defendant Brown has violated Plaintiff's Eighth Amendment rights because he knowingly repaired Plaintiff's large ventral hernia with a defective hernia mesh product, which has resulted in (1) Plaintiff suffering severe abdominal pain and discomfort, (2) two large lumps forming at the incision, (3) an increase in the size of the hernia, and (4) urination and bowel elimination issues.
Although the precise contours of Plaintiff's requested relief in the present Motion for Injunction [#63] are not entirely clear from the briefs, Plaintiff helpfully provides a proposed order which concisely presents the injunctive relief he seeks here. See [#63] at 16-18. Plaintiff seeks a temporary restraining order and/or injunction against non-parties (and proposed defendants) Jeff Archambeau, Rick Raemisch, and Michelle Nelson (and their successors and those working under their control), as follows:
(1) [T]o provide a medically appropriate course of treatment and surgery for [Plaintiff] designed to repair his large ventral hernia and left knee, designed to restore and maintain the full function of his upper, center, lower abdomen and left knee.
(2) To up-load all [of Plaintiff's] medical documents in [its entirety] that has [sic] not been up-loaded into CDOC's Clinical Services inmate electronic medical file.
(3) To adhere to and be bound by CDOC AR 850-04 grievance procedure.
(4) To preserve all documents.
(5) To stop and [refrain] from any further retaliatory, discriminatory actions towards [Plaintiff].Id.
(6) To stop disregarding, down playing, all [of Plaintiff's] verbal communications and submitted handwritten CDOC's "Request for Sick Call" medical kites and medical complaints.
(7) To arrange for Mr. Brown['s] surgical report, CAT scan (CD) to all be gathered and sent to the new hernia specialist for proper consultation appointment.
In the Motion to Amend [#97], Plaintiff states that "[o]n October 6, 2018, through an unnamed jail house lawyer [Plaintiff] learned and discovered that his injunctive relief was not supported properly by the right defendants." Therefore, Plaintiff here "moves to amend caption, defendant's [sic] names, and section B, of the Second Amended Complaint (Doc. #38) for injunction [sic] relief only . . . ." Plaintiff appropriately filed a proposed Third Amended Complaint [#96] in which he helpfully underlined the additions to the Second Amended Complaint [#38]. Plaintiff primarily seeks to add the following five persons/entities as defendants: (1) Jeff Archambeau, Chief Executive Officer of Correctional Health Partners; (2) Colorado Department of Corrections ("CDOC"); (3) Rick Raemisch, Executive Director of CDOC, (4) Clinical Services, CDOC Health Care Provider, and (5) Michelle Nelson, CDOC's Director of Clinical Services Health Care Provider. Proposed Second Am. Compl. [#96] at 2-3.
The Court addresses Plaintiff's Motions [#63, #97] in three parts below: (1) the request to amend his complaint, (2) the request for a temporary restraining order, and (3) the request for a preliminary injunction.
II. Fed. R. Civ. P. 15(a)(2): Amendment of the Second Amended Complaint
The Court has discretion to grant a party leave to amend its pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave when justice so requires."). The purpose of the rule is to provide litigants "the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties." Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th Cir. 2006). "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." Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citation omitted). An amendment is futile only if it would not survive a motion to dismiss. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cty. Sch. Dist. v. Moody's Inv'rs Servs., 175 F.3d 848, 859 (10th Cir. 1999)). "In ascertaining whether plaintiff['s] proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to plaintiff[ ], and the allegations in the complaint must be accepted as true." Bennett v. Wells Fargo Home Mortg., No. 16-cv-03185-CMA-KLM, 2017 WL 4675524, at *1 (D. Colo. Oct. 18, 2017) (citing Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994)).
Plaintiff's requested amendments are futile because he does not assert a single claim against any of the five proposed defendants. Plaintiff's proposed Third Amended Complaint [#96] is otherwise unusually well-drafted for an incarcerated pro se litigant. For each separate claim, Plaintiff explicitly states against which Defendant the claim is asserted. For example, Claim 1 is explicitly asserted against Defendant Lindsey E. Fish, and Claim 2 is explicitly asserted against Defendant Teddy L. Laurence. See [#96] at 3, 6. Plaintiff does occasionally mention at least some of the proposed defendants elsewhere. For example, as part of Plaintiff's requests for relief, Plaintiff asks the Court to issue an injunction ordering Defendant Correctional Health Partners or its agents to require Rick Raemisch, Clinical Services, or CDOC to take certain actions. See [#96] at 27-29. However, there is no indication that any claim is asserted against any of the five proposed defendants in the proposed Third Amended Complaint [#96]. In the absence of any claims asserted against them, allowing Plaintiff to amend the Second Amended Complaint [#38] to add them would be futile.
Accordingly, the Court recommends that the Motion to Amend [#97] be DENIED without prejudice.
III. Fed. R. Civ. P. 65(b): Temporary Restraining Order
"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)). Fed. R. Civ. P. 65(b)(1) states:
The court may issue a temporary restraining order without written or oral 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.Further, Local Rule 65.1 requires a certificate of counsel or an unrepresented party which addresses providing notice, and providing copies of filings, to opposing counsel and any unrepresented adverse party.
Several issues arise to the extent Plaintiff seeks a temporary restraining order. First, even in Plaintiff's Declaration, see [#63] at 10-15, made under penalty of perjury pursuant to 28 U.S.C. § 1746, Plaintiff has failed to show that there is a threat of "immediate" and "irreparable" harm that is likely to occur before the opposing party/parties may be notified and heard in connection with the Motion for Injunction [#63]. See, e.g., Williams v. BAC Home Loans Servicing, No. 10-cv-01805-MSK, 2010 WL 3025553, at *2 (D. Colo. July 30, 2010) ("[The Plaintiffs] have failed to show a threat of irreparable harm that is likely to occur before the Defendant could be heard in response to a motion for injunctive relief."). None of the seven requests for relief listed above show that Plaintiff has provided sufficient "specific factual allegations," "as opposed to merely asserting conclusory allegations," to demonstrate that Plaintiff will be imminently, irreparably harmed before the opposing parties could be heard in opposition. Id. Thus, Plaintiff has failed to carry his burden of showing imminent injury under Fed. R. Civ. P. 65(b)(1)(A).
Second, Defendants Vanessa Carson, Teddy L. Laurence, Robert Manguso, and Correctional Health Partners have received notice of the Motion for Injunction [#63] by virtue of the motion having been filed on the electronic docket. Defendants Lindsey E. Fish, Tejinder Singh, and Timothy R. Brown have not yet been served nor have they entered appearances in this matter, and, to the best of the Court's knowledge, have not received notice of the present Motion for Injunction [#63]. Further, the persons against whom the temporary restraining order is sought (Jeff Archambeau, Rick Raemisch, and Michelle Nelson) are not currently parties to this lawsuit, and there is no indication on the docket that they have been separately served with the Motion for Injunction [#63]. Plaintiff has not made any showing as to the attempts he has made, if any, to give notice to these three individuals of this proceeding and of Plaintiff's request for a temporary restraining order. See id. In addition, he has not made any showing regarding why such notice should be excused. See id. Thus, Plaintiff has failed to carry his burden under Fed. R. Civ. P. 65(b)(1)(B).
Accordingly, the Court recommends that the Motion for Injunction [#63] be denied to the extent Plaintiff seeks a temporary restraining order.
III. Fed. R. Civ. P. 65(a): Preliminary Injunction
Injunctive relief is an extraordinary remedy that should only be granted when the moving party clearly and unequivocally demonstrates its necessity. Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). In the Tenth Circuit, a party requesting injunctive relief must clearly establish that: (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.
"Because 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). Moreover,
[b]ecause the limited purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held, we have identified the following three types of specifically disfavored preliminary injunctions . . . (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that [he] could recover at the conclusion of a full trial on the merits.Schrier, 427 F.3d at 1258-59 (citations omitted). These disfavored injunctions are "more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course." Id. at 1259.
As noted, Plaintiff seeks an order against three non-parties. The Tenth Circuit applies a heightened standard for litigants seeking injunctive relief against non-parties. Andrews v. Andrews, 160 F. App'x 798, 800 (10th Cir. 2005). "While the non-party status of an injunction's target may [not] be a conclusive impediment, it nevertheless heightens the hurdle that must be cleared to obtain the injunction: not only must the motion advance considerations satisfying the traditional injunction factors . . . but those considerations must also constitute . . . 'appropriate circumstances' . . . to justify issuing an injunction against a non-party." Id. The "appropriate circumstances" referred to by the Andrews court require a 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. N.Y. Tel. Co., 434 U.S. 159, 174 (1977)).
Further, Plaintiff generally seeks various orders directing the non-party CDOC officials to take affirmative action and/or to change how the prison rules are applied to him. See generally Motion for Injunction [#63]. Thus, Plaintiff seeks a preliminary injunction which would require them to act and/or otherwise alter the status quo in relation to their dealings with Plaintiff. For these reasons, the injunctive relief sought by Plaintiff "constitutes a specifically disfavored injunction" that "must be more closely scrutinized." See Schrier, 427 F.3d at 1261. Therefore, "the right to relief must be clear and unequivocal." Id. at 1258.
Additionally, the Court must consider well-established precedent that prison management functions should be left to the broad discretion of prison administrators in order to enable them to manage prisons safely and effectively. See, e.g., Meachum v. Fano, 427 U.S. 215 (1976). Thus, courts should grant injunctive relief involving the management of prisons only under exceptional and compelling circumstances. Taylor v. Freeman, 34 F.3d 266, 269-70 & n.2 (4th Cir. 1994); see also Citizens Concerned for Separation of Church & State v. Denver, 628 F.2d 1289, 1299 (10th Cir. 1980). To obtain injunctive relief, Plaintiff must first show that he will suffer irreparable injury if his request for injunctive relief is denied. See Schrier, 427 F.3d at 1258. "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) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). Irreparable harm is more than "merely serious or substantial" harm. Id. (citation omitted). The party seeking the preliminary injunction "must show that 'the injury complained of is of such imminence that there is a clear and present need for equitable relief' to prevent irreparable harm." Id. (citation omitted). Therefore, Plaintiff "must establish both that harm will occur, and that, when it does, such harm will be irreparable." See Vega v. Wiley, 259 F. App'x 104, 106 (10th Cir. 2007). As outlined below, the Court finds that Plaintiff has failed to demonstrate that he is likely to experience more than, at most, "merely serious or substantial harm." See Heideman, 348 F.3d at 1189.
Six of Plaintiff's seven listed requests for injunctive relief (numbers (2)-(7)), as presented to the Court, do not come close to meeting the "certain, great, actual" irreparable injury standard: (2) "[t]o up-load all [of Plaintiff's] medical documents in [its entirety] that has [sic] not been up-loaded into CDOC's Clinical Services inmate electronic medical file;" (3) "[t]o adhere to and be bound by CDOC AR 850-04 grievance procedure;" (4) "[t]o preserve all documents;" (5) "[t]o stop and [refrain] from any further retaliatory, discriminatory actions towards [Plaintiff];" (6) "[t]o stop disregarding, down playing, all [of Plaintiff's] verbal communications and submitted handwritten CDOC's 'Request for Sick Call' medical kites and medical complaints;" and (7) "[t]o arrange for Mr. Brown['s] surgical report, CAT scan (CD) to all be gathered and sent to the new hernia specialist for proper consultation appointment." See, e.g., Brooks v. Colo. Dep't of Corrs., 730 F. App'x 628, 632 (10th Cir. 2018) (holding that prison copying and printing restrictions did not cause prospective and irreparable injury by limiting access to the courts); Carbajal v. Warner, 561 F. App'x 759, 762 (10th Cir. 2014) (holding that a general request directing the defendants to comply with the law is "insufficiently specific to merit injunctive relief"); Stephens v. Jones, 494 F. App'x 906, 911-912 (10th Cir. 2012) (holding that a preliminary injunction could not be obtained where the requested relief was not "narrowly drawn" and "the least intrusive means necessary to correct [the] harm"); Hicks v. Jones, 332 F. App'x 505, 508 (10th Cir. 2009) (holding that a preliminary injunction could not be obtained on matters lying wholly outside the issues of the lawsuit); Mears v. Bargdill, 83 F.3d 432 (Table), 1996 WL 211242, at *2-3 (10th Cir. 1996) (holding that the plaintiff's requests for a preliminary injunction consisting of (1) the return of his legal materials and memory typewriter to him, (2) ending retaliation against him, and (3) providing him access to a law library sufficient for his purposes did not constitute showings of irreparable harm).
Plaintiff's one other request for relief directly involves his medical care: "[t]o provide a medically appropriate course of treatment and surgery for [Plaintiff] designed to repair his large ventral hernia and left knee, designed to restore and maintain the full function of his upper, center, lower abdomen and left knee." As noted above, and as relevant here, the Court has summarized Plaintiff's allegations from the Second Amended Complaint [#38] as follows:
(1) Defendants Fish, Laurence, Singh, and Manguso have violated Plaintiff's Eighth Amendment rights. Since November 2014 Plaintiff has suffered from a large ventral hernia, a bullet over the lateral left 10th rib cage that eventually pulled free but caused infection, and a meniscus tear and cartilage damage to his left knee. Defendants Fish, Laurence, Singh, and Manguso have (1) disregarded Plaintiff's complaints of pain and suffering, (2) told him that X-rays did not show a hernia, (3) examined him for a hernia and told him they found nothing, (4) refused to provide pain medication, and (5) acknowledged his left knee was swollen but failed to refer Plaintiff to an orthopedic surgeon to evaluate his knee;Order [#40] at 2-3.
(2) Defendant Correctional Health Partners, in violation of Plaintiff's Eighth Amendment rights, has created a policy or practice that limits, delays, or denies all initial requests for hernia specialist consultation for assessment, treatment plan, or surgery; . . . and
(4) Defendant Brown has violated Plaintiff's Eighth Amendment rights because he knowingly repaired Plaintiff's large ventral hernia with a defective hernia mesh product, which has resulted in (1) Plaintiff suffering severe abdominal pain and discomfort, (2) two large lumps forming at the incision, (3) an increase in the size of the hernia, and (4) urination and bowel elimination issues.
The Court cannot find that Plaintiff's allegations regarding his left knee and hernia "unequivocally" rise above the level of serious or substantial harm to imminent, irreparable harm. See Heideman, 348 F.3d at 1189. Plaintiff is clearly unhappy, uncomfortable, worried about his health, and wants to return to his former level of physical activity. However, these allegations simply do not satisfy Plaintiff's high burden of showing "that 'the injury complained of is of such imminence that there is a clear and present need for equitable relief' to prevent irreparable harm." Id. As an example, in Edmisten v. Werholtz, 287 F. App'x 728, 734 (10th Cir. 2008), the Tenth Circuit Court of Appeals determined that the following type of allegations met the irreparable harm test in the preliminary injunction context:
Since the removal of the prosthesis and the defendants' ensuing failure to follow Dr. Kent's order for a follow-up visit, [the plaintiff] has lost all movement and function in his jaw; can only eat solid food by swallowing it whole, which he later vomits; cannot speak clearly; is more disfigured; and suffers chronic pain. He also contends that if he does not have the new prosthesis installed soon, there is an increasing risk that the procedure could not be performed at a later date. The individual . . . appellees respond that this latter contention is simply an unsupported allegation, but this argument overlooks several of the allegations in the complaint, including that Dr. Cole and Dr. Kent both viewed replacement as necessary; that Dr. Kent planned a follow-up visit with [the plaintiff] ten days after the first procedure, to which he was never transported; and that [the plaintiff] has lost all range of motion in his jaw and the ability to speak clearly. Thus, whether or not it is speculative that continued delay would foreclose [the plaintiff's] opportunity to get the replacement prosthesis is beside the point—the procedure was prescribed, and defendants allegedly interfered with completion of the procedure. The lack of a functional jaw, and the concomitant eating problems, would have a certain and great effect on [the plaintiff's] physical condition, an effect that could not be atoned for in money damages or adequately remedied by the district court given the passage of time that ordinarily accompanies a trial on the merits. Therefore, taking the allegations as true, [the plaintiff] has made a strong showing that he will sustain irreparable harm—his condition, both of his jaw and his overall health, will deteriorate irreparably absent implantation of the new prosthesis.
To the extent Plaintiff's allegations are true, the Court is not unsympathetic to Plaintiff's assertions regarding his desire for additional medical care for his hernia and knee; however, the Court cannot find that Plaintiff's medical state demonstrates exceptional and compelling circumstances warranting Court intervention in prison management at this time, especially against non-parties. See Taylor, 34 F.3d at 270 n.2. Accordingly, the Court finds that Plaintiff's request for a preliminary injunction order against non-parties under the heightened standard should, based on the information provided, be denied as to requests (2)-(7) and denied without prejudice as to request (1) for failure to demonstrate that he is likely to experience more than "merely serious or substantial harm." See Heideman, 348 F.3d at 1189.
Of course, nothing in this Recommendation bars Plaintiff from obtaining his requested relief by mutual agreement or by succeeding on the merits of his claims in this litigation.
Should Plaintiff choose to reassert this request, the Court highlights that he must, amongst the other requirements discussed in this Recommendation: (1) provide sufficient information to serve the non-parties with his motion; (2) carefully describe the narrowly-tailored and least intrusive means necessary to protect his health from deterioration; (3) clearly articulate in a non-conclusory manner why irreparable harm will occur if the requested relief is not obtained now rather than at the conclusion of this litigation, should he be successful. This may include, for example, describing whether any medical personnel have explicitly prescribed treatment for him which he has not received.
Given that the Court finds that Plaintiff has failed to demonstrate that he will suffer irreparable injury if his request for injunctive relief is denied, the Court need not analyze the three additional elements that must be established to obtain a preliminary injunction. See Sampson v. Murray, 415 U.S. 61, 91-92 (1974) (noting that the failure to show irreparable injury is sufficient ground, by itself, to deny injunctive relief).
IV. Conclusion
For the foregoing reasons,
IT IS HEREBY RECOMMENDED that the Motion to Amend [#97] be DENIED without prejudice.
IT IS FURTHER RECOMMENDED that the Motion for Injunction [#63] be DENIED in part and DENIED without prejudice in part, as outlined above.
IT IS FURTHER 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).
Dated: May 9, 2019
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge