Case v. United States

Full title: LONNIE DAVID CASE, Plaintiff, v. THE UNITED STATES, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: Nov 6, 2014

Civil Action No. 14-cv-01649-WJM-BNB (D. Colo. Nov. 6, 2014)

Opinion

Civil Action No. 14-cv-01649-WJM-BNB

11-06-2014

LONNIE DAVID CASE, Plaintiff, v. THE UNITED STATES, Defendant.

Magistrate Judge Boyd N. Boland

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter arises on the following motions filed by the plaintiff:

(1) Plaintiff Request for Preliminary Injunction Under Rule 56(a) and (b) [Doc. #5, filed 06/12/2014]; and

(2) Plaintiff Request for Preliminary Injunction Under Rule 56(a) and (b) [Doc. #10, filed 07/03/2014].¹

1 The motions are identical.

The plaintiff seeks an order directing the Federal Bureau of Prisons to provide him with surgery for his right eye. Injunctive relief is a drastic remedy and is granted only in cases where the right to relief is clearly established. Goldammer v. Fay, 326 F.2d 268, 270 (10^th Cir. 1964). The burden is on the movant to establish his right to the relief requested. Penn v. San Juan Hospital, Inc., 528 F.2d 1181, 1185 (10^th Cir. 1975). To obtain a preliminary injunction under Rule 65(a), the plaintiff must show that (1) he will suffer irreparable injury unless the injunction issues; (2) the threatened injury to the moving party 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 that the moving party will eventually prevail on the merits. Lundgrin v. Claytor, 619 F.2d 61, 63 (10^th Cir.1980). The plaintiff's right to relief must be clear and unequivocal. Penn, 528 F.2d at 1185.

The following kinds of preliminary injunctions are disfavored: (1) those that disturb the status quo; (2) those that are mandatory as opposed to prohibitory; and (3) those that afford the movant substantially all the relief he may recover at the conclusion of a full trial on the merits. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096 1098-99 (10^th Cir. 1991). "[A]ny preliminary injunction fitting within one of the disfavored categories must be 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." O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10^th Cir. 2004). The plaintiff seeks both a mandatory injunction and an injunction that would disturb the status quo.² Therefore, he "must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of the harms." Id. at 976.

2 Mandatory injunctions "affirmatively require the nonmovant to act in a particular way." SCFC, 936 F.2d at 1099. Injunctions that disturb the status quo alter the parties existing relationship. Id. at 1100. "The status quo is not defined by the parties' existing legal rights; it is defined by the reality of the existing status and relationships between the parties, regardless of whether the existing status and relationships may ultimately be found to be in accord or not in accord with the parties' legal rights." Id. (emphasis in original).

The plaintiff does not discuss any of the Lundgrin factors. Consequently, he has not sustained his heavy burden to establish clearly and unequivocally his right to injunctive relief.

I respectfully RECOMMEND that the Motions [Docs. ## 5 and 10] be DENIED.³

3 Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have 14 days after service of this recommendation to serve and file specific, written objections. 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. In re Key Energy Resources Inc., 230 F.3d 1197, 1199-1200 (10^th Cir. 2000). 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 Property, 73 F.3d 1057, 1060 (10^th Cir. 1996).
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Dated November 6, 2014.

BY THE COURT:

s/ Boyd N. Boland

United States Magistrate Judge