Opinion
Civil Action 20-cv-02284-CMA-KAS
10-31-2023
HUNTER MELNICK, Plaintiff, v. TONYA GAMBLIN, CPO DOC, SARA PHELPS, CPS DOC, and THERESA MITCHELL, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KATHRYN A. STARNELLA MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motion for Preliminary Injunction [#110]. Plaintiff filed an identical motion in two other cases filed by him-Melnick v. Johnston, Case No. 19-cv-00154-CMA-KAS, and Melnick v. Marlow, Case No. 21-cv-03316-CMA-KLM. See Minute Order [#114]. The proceedings relevant to the Motion for Preliminary Injunction, including briefing of the Motion, were stayed by then-Magistrate Judge Kristen L. Mix pending a ruling on the preliminary injunction motion that was being briefed in the Johnston case. Magistrate Judge Mix found that “the outcome of the Johnston case will likely determine the outcome of the Motion for Preliminary Injunction” in this case. Id. at 2. The parties were directed to file a brief in this case within ten (10) days of resolution of the Johnston preliminary injunction motion that addressed the impact of that ruling on the instant Motion for Preliminary Injunction. Id.
The case was referred to the undersigned after Magistrate Judge Mix's retirement. See Dkt. #127.
On June 29, 2023, Magistrate Judge Mix issued a Recommendation [#265] in the Johnston case, recommending that the motion for preliminary injunction in the case be denied. The Recommendation was affirmed and adopted by District Judge Christine M. Arguello by Order [#266] of July 24, 2013, and Plaintiff's later filed Objections [#268] were overruled by Order [#272] of August 11, 2023. Neither party filed a brief in this case addressing the impact of the Johnston rulings. The stay of the proceedings relevant to the Motion for Preliminary Injunction [#110] was lifted by Order [#122] of July 25, 2023.
A ruling on the Motion for Preliminary Injunction in this case was also stayed pending a decision by the Denver District Court regarding Plaintiff's marital status that could impact the Motion. See Minute Order [#114]. That hearing was held in June 2023 (see Dkt. #117, Ex. A), and both parties acknowledged in briefing that the ruling had no immediate impact on this action or the Motion for Preliminary Injunction [#110]. See Dkt. #116, #118.
The Motion for Preliminary Injunction [#110], which again is identical to the preliminary injunction motion filed in Johnston, seeks injunctive relief in the form of an order “prohibiting any sort of ban, direct, or indirect through mandatory sex offender treatment (CCTP), restricting Plaintiff[']s access to Social Media.” See Motion [#110] at 2. Plaintiff asserts that he will likely succeed on the merits of his First Amendment claims, which arise from a total or near total ban on social media, based on the Supreme Court's ruling in Packingham v. North Carolina, 582 U.S. 98 (2017). Id. at 1. Plaintiff further alleges that he is suffering irreparable injury through Defendants' ban on social media, the threatened injury outweighs any interest of Defendants in keeping Plaintiff from social media, and the public has an interest in social media not being banned. Id. at 1-2. These issues were also asserted in Johnston.
In Johnston, Magistrate Judge Mix found that Plaintiff's request for an order lifting the social media ban sought mandatory injunctive relief, which would alter the status quo and was thus disfavored. Recommendation [#265] at 5. Magistrate Judge Mix further found that the irreparable injury and likelihood of success factors relevant to a motion for preliminary injunction were intertwined, and that Plaintiff did not show a likelihood of success on the merits or meet the other elements required for injunctive relief. Id. at 613.
More specifically, the Recommendation found that Plaintiff's reliance on the Supreme Court's opinion in Packingham was misplaced because: (1) the sweeping ban in Packingham differed from the ban at issue related to Defendants' policy restricting social media for recently released sex offenders; (2) Packingham has been interpreted by courts to not apply to sex offenders on parole because it stated that “the First Amendment permits a State to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like . . . using a website to gather information about a minor,” 582 U.S. at 107; and (3) even if Packingham does apply, Plaintiff did not show that the restrictions, which were found to constitute only a temporary ban on certain social media sites, involved a greater deprivation of liberty than is reasonably necessary. Recommendation [#265] at 7-10. Instead, Defendants showed that the alleged ban was reasonably related to parole and the State's legitimate interest in protecting the public from sex offenders and in rehabilitating sex offenders on their release. Id. at 11. The Recommendation additionally found that Plaintiff failed to show that his request for broad access to social media would be in the public's best interest, or that the balance of harms weighed in Plaintiff's favor. Id. at 13.
The Court incorporates by reference and adopts in full Magistrate Judge Mix's Recommendation [#265] in Johnston. Further, the Court finds that the instant Motion for Preliminary Injunction [#110] should be denied for the same reasons that Magistrate Judge Mix denied the preliminary injunction motion in Johnston. The Motions for Preliminary Injunction filed by Plaintiff in both cases are identical and relate to claims that Plaintiff is being banned or limited from access to social media. See Am. Compl. [#90] at 8-9; Fourth Am. Compl. [#259] in Johnston at 8. Accordingly, the Court finds that the rationale for denying the preliminary injunction motion in Johnston applies equally to the instant Preliminary Injunction Motion [#110], and therefore recommends that the Motion be denied on that basis.
Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff's Motion for Preliminary Injunction [#110] be DENIED.
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).