Opinion
Civil Action No. 10-cv-02711-BNB.
December 8, 2010
ORDER
Plaintiff, Keith Frazier, is a prisoner in the custody of the Colorado Department of Corrections. This matter is before the Court on "Plaintiff's Motion for a Temporary Restraining Order and an Order to Show Cause for a Preliminary Injunction" (Doc. #4) and "Declaration/Memorandum of Law" (Doc. #3) in support of the motion, filed pro se on November 4, 2010. The Court must construe the motion liberally because Mr. Frazier is not represented by an attorney. 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 an advocate for a pro se litigant. See Hall , 935 F.2d at 1110. For the reasons stated below, the motion will be denied.
The Court may not issue a temporary restraining order unless Mr. Frazier shows, among other things, "that immediate and irreparable injury, loss, or damage will result . . . before the adverse party can be heard in opposition." Fed.R.Civ.P. 65(b)(1)(A). Mr. Frazier seeks a temporary restraining order directing certain of the named Defendants to return to him personal property that was confiscated during a search of his cell on September 17, 2010. The personal property Plaintiff seeks consists of:
[T]hree irreplaceable commemorative issues of "Billboard" music magazine dating to 2003-2005 (the 2003 and 2004 "year-end" issues, and a weekly issue from the Summer of 2005), and four valuable out-of-print rock music-related books (the "Rolling Stone Top 500 Greatest Albums of All Time," "Rolling Stones: Rip this Joint," "Goldmine Standard Catalog of American Records, 2nd Edition," and "Goldmine Heavy Metal Record Price Guide").
(Doc. #3 at p. 1, ¶ 2.) Plaintiff alleges that he is on a wait-list to be transferred and that a transfer "would result in his loss forever of the aforementioned cherished and irreplaceable items." (Doc. #3 at p. 1, ¶ 3.)
The Court finds that Mr. Frazier has not made the necessary showing that he will suffer immediate and irreparable injury. Although he alleges that his pending transfer will result in a permanent loss of the personal property in question, Mr. Frazier also alleges that he has been told he can mail the items to someone outside of prison. As a result, he fails to demonstrate any irreparable injury. "While an inmate's ownership of property is a protected property interest that may not be infringed without due process, there is a difference between the right to own property and the right to possess property while in prison." Hatten v. White , 275 F.3d 1208, 1210 (10th Cir. 2002). The fact that Mr. Frazier would prefer to maintain possession of the property in prison does not alter the Court's conclusion. Therefore, the motion for a temporary restraining order will be denied. Accordingly, it is
ORDERED that "Plaintiff's Motion for a Temporary Restraining Order and an Order to Show Cause for a Preliminary Injunction" (Doc. #4) is denied.
DATED at Denver, Colorado, this 8th day of December, 2010.