CRAIG B. SHAFFER, Magistrate Judge.
THIS MATTER comes before the court on pro se Plaintiff Demetrius Terrell Freeman's Motion for Injunctive Relief (doc. # 253) filed on February 22, 2013. Pursuant to the Memorandum dated February 26, 2013, the Motion was referred to the Magistrate Judge. See Doc. # 254. Defendant filed her Response to the Motion for Injunctive Relief (doc. # 255) on March 15, 2013. On April 29, 2013, Plaintiff filed a letter with the court (doc. # 256) stating that he wished respond to the Defendant's submission, however, Mr. Freeman never filed a reply. The court has carefully reviewed the Motion, Response, and applicable case law and is sufficiently advised in the premises. For the following reasons this court recommends that the Motion for Injunctive Relief be denied.
Mr. Freeman is currently incarcerated at the United States Penitentiary, Beaumont Federal Correctional Complex ("Beaumont FCC") in Beaumont, Texas. See Doc. # 256. Mr. Freeman's claim against Alicia Vineyard ("Ms. Vineyard"), a Mid-Level Practitioner at the Federal Correctional Institution in Florence, Colorado, originates from the treatment, or non-treatment, of his sickle cell trait from December 8, 2009 through January 8, 2010.
Mr. Freeman alleges in his Motion that he has suffered "cruel and unusual punishment" as "retaliat[ion]" for bringing his civil suit against Ms. Vineyard. See Doc. # 253. The first alleged retaliation occurred in September 2012, while the Plaintiff was at the United States Penitentiary in Atwater, California ("USP Atwater"). Plaintiff alleges Corrections Officer Martin "dislocated [Plaintiff's] arm" and then "rubb[ed] his testicles on the Plaintiff's arm." See Doc. # 253 at page 1 of 3. Corrections Officer Martin allegedly stated that "if [Plaintiff] drop[ped] [his] civil suit in Colorado all of [Plaintiff's] problems would go away." Id. Mr. Freeman also claims that Corrections Officer Ontiveros, under the direction of Warden Swartz, wrote an Incident Report citing Plaintiff for "possession of a lock picking device." Id at 2 of 3. The third alleged incident occurred while the Plaintiff was in transit from USP Atwater to the Federal Correctional Institution in Mendota, California ("FCI Mendota"). Plaintiff alleges an unnamed Bureau of Prisons ("BOP") employee took his "legal work" which was not returned. Id. Finally, Plaintiff alleges that while at FCI Mendota he was "left handcuffed for more than 12 hours with his hands behind his back," which caused his shoulder injury to become worse. Id.
"The purpose of a preliminary injunction is not to remedy past harm but to protect plaintiffs from irreparable injury that will surely result without their issuance." Schrier v. University Of Colo., 427 F.3d 1253, 1267 (10th Cir. 2005). A preliminary injunction is an extraordinary remedy and thus the movant's right to relief must be "clear and unequivocal." SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991). There are three categories of injunctive relief that are "disfavored:" "(1) a preliminary injunction that disturbs the status quo; (2) a preliminary injunction that is mandatory as opposed to prohibitory; and (3) a preliminary injunction that affords the movant substantially all the relief he may recover at the conclusion of a full trial on the merits."Id. at 1098-99. If a preliminary injunction falls into one of these three categories the movant "must satisfy a heightened burden" where his allegations are "more closely scrutinized" to assure the granting of such an extraordinary remedy is proper. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004). Congress also has mandated that injunctive relief in prison condition cases
18 U.S.C.A. § 3626(a)(2).
In order to obtain a preliminary injunction, the movant must establish: (1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest. Pinson v. Pacheco, 397 F. App'x 488, 491 (10th Cir. 2010).
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). "A plaintiff suffers irreparable injury when the court would be unable to grant an effective monetary remedy after a full trial because such damages would be inadequate or difficult to ascertain." Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001). See also Schrier, 427 F.3d at 1267 ("To constitute irreparable harm, an injury must be certain, great, actual and not theoretical."). "If the possibility of future harm is speculative, the movant has not established that he will suffer irreparable injury." Pinson, 397 F. App'x at 492 (internal quotation marks omitted).
The only relief Mr. Freeman specifically requests is access to video surveillance footage from FCI Mendota between the times of 12:00 pm on February 11, 2013 and 12:00 pm on February 12, 2013. See Doc. # 253 at page 3 of 3. An order requiring FCI Mendota to give surveillance footage to Mr. Freeman would disturb the status quo and fall into the first "disfavored" category of injunctive relief. Therefore, Mr. Freeman "must satisfy a heightened burden" in establishing the requisite elements for injunctive relief.
Mr. Freeman's motion does not address what is on the video surveillance footage he is requesting, nor does he demonstrate how the video surveillance footage is connected to his claim against Ms. Vineyard. His motion also fails to state how he will be irreparably harmed if he does not receive access to the video surveillance footage. In short, Mr. Freeman is pursuing discovery under the guise of a Rule 65 motion. This court finds that Mr. Freeman has failed to meet his burden of showing probable irreparable injury and need not address the remaining factors of a preliminary injunction.
While Mr. Freeman's motion does not clearly request any other injunctive relief, the court has a duty to liberally construe a pro se plaintiff's pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) ("A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers."). Because most of Mr. Freeman's motion describes alleged incidents of retaliation, this court will construe it to include a request for relief from further retaliation. See Doc. # 253.
Since the last alleged incident of retaliation, BOP has moved Mr. Freeman from USP Atwater to Beaumont FCC. This makes any future harm Mr. Freeman might face purely speculative as the court can not presume there will be future misconduct by unknown BOP personnel. Without further evidence, the court cannot find that Mr. Freeman faces imminent harm in the wake of his transfer to a different facility. See Pinson, 397 F. App'x at 492 (district court did not abuse its discretion in denying prison inmate's motion for preliminary injunction because alleged past harm occurred at a facility where he was no longer incarcerated).
The court also notes that Plaintiff's allegations of retaliation are directed towards individuals who are not parties in the case. "According to Rule 65(d), an injunction binds only the parties, their `officers, agents, servants, employees, and attorneys,' and other persons who are in active concert therewith." Rainey v. Huertas, No. 12-cv-01434-CMA-MEH, 2012 WL 6770907, at *3 (D. Colo. Nov. 30, 2012). "In addition, the movant must establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint." Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) (internal quotation marks omitted) (affirming the denial of a motion for preliminary injunction on the basis that the incarcerated plaintiff had not "alleged that the defendants named in the complaint participated in the alleged [harm] . . . ."). Since enjoining Ms. Vineyard would not grant Mr. Freeman the relief he seeks, and the court cannot enjoin the parties from whom injunctive relief could be ordered, this court recommends that Mr. Freeman's Motion for Injunctive Relief (doc. # 253) be DENIED.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the District Court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and 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 Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the District Judge of the Magistrate Judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
Before BRISCOE, Chief Judge, TACHA, and O'BRIEN, Circuit Judges.
MARY BECK BRISCOE, Chief Judge.
**1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument.
Plaintiff-Appellant Jeremy Pinson, currently incarcerated and appearing pro se, appeals the denial of his motion for a preliminary injunction. Pinson filed a complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that federal prison officials were deliberately indifferent to his safety, in violation of the Eighth Amendment to the United States Constitution. This action is still pending before the district court. In his Bivens action, he sought compensatory and punitive damages for past attacks on him by other prison inmates, and requested an injunction preventing defendants from housing him with inmates who pose a danger to his safety. Shortly after he filed his complaint, Pinson filed an Emergency Motion for a Preliminary Injunction. The district *490 court denied the motion because the alleged harm was speculative. Only the denial of the preliminary injunction is at issue in this appeal. Notice of Appeal filed August 12, 2010, ROA at 52. Exercising jurisdiction under 28 U.S.C. § 1292(a), we affirm.
Pinson provides the following history of his incarceration. Prior to May 2006, he was incarcerated with the Oklahoma Department of Corrections. Pinson alleges he was a member of the Sureno gang and was involved in a prison riot during which another inmate was murdered, but he "subsequently cooperated with law enforcement concerning the murder and dropped out of his gang." Aplt. Br. at 4. In May 2007, he began serving a 252-month federal sentence at the federal correctional institution in Beaumont, Texas. At some point he was transferred to the federal correctional institution in Florence, Colorado. In December 2007, he was "attacked and beaten unconscious by another inmate who learned of [his] ex-gang status and past cooperation with authorities." Id. at 4. Pinson was then transferred to the federal correctional institution in Victorville, California. He was attacked by another inmate in the Victorville prison in March and again in April, 2008. He was subsequently transferred to the federal correctional institution in Talladega, Alabama, where he is currently incarcerated.
Pinson filed a motion for a preliminary injunction, seeking an order "enjoining defendants . . . from housing [him] in the same institution with inmates or prison gangs who pose a known, specific risk of harm toward [him] and ordering defendants to consider housing [him] in a low security or medium security institution to determine if such would facilitate [his] safety needs." Emergency Mot. for a Prelim. Inj., ROA at 15-16. The district court denied the motion, stating:
Pinson filed a notice of appeal on August 12, 2010. Twelve days later, he filed a second motion for a preliminary injunction in the district court, stating that he was "involved in an altercation with another inmate resulting in that inmate's hospitalization on June 25, 2010," and that on August 3, 2010 "another inmate was stabbed to death less than 20 feet from [Pinson's] cell." Renewed Emergency Mot. for Subpoena, Hr'g, and Issuance of a Prelim. Ink. dated August 24, 2010, Dist. Ct. Dkt. No. 32, at 2.
We review the district court's denial of a preliminary injunction for abuse of discretion. Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th Cir.2003). "In doing so, we examine the district court's factual findings for clear error and review its legal determinations de novo." Id.
In order to obtain a preliminary injunction, the movant must establish:
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.2001). A preliminary injunction is an extraordinary remedy, and the movant's right to relief must be "clear and unequivocal." SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir.1991).
Pinson argues that the district court's decision on the merits was in error because he was not required to show irreparable injury and, in the alternative, that he did make such a showing. He also argues that the district court should have held a hearing or issued an order to show cause before denying his motion.
As a preliminary matter, it is necessary to define the factual assertions upon which this court's decision will be based. Pinson appeals only the denial of his first motion for a preliminary injunction. Upon review, we consider only the assertions made prior to and in connection with that motion. Therefore, we do not consider the June and August 2010 incidents at the Talladega prison. These were raised for the first time in Pinson's second motion for a preliminary injunction, and the district court has neither made factual findings regarding these incidents, nor considered whether they establish a right to preliminary injunctive relief. We also do not consider Pinson's assertion that he is currently being housed with inmates from his former gang or inmates who were the subject of his cooperation with the government, Aplt. Br. at 4, because it was made for the first time on appeal. See Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir.1991) ("the general rule [is] that an appellate court will not consider an issue raised for the first time on appeal").
**3 The district court determined that Pinson failed to make the required showing of imminent irreparable injury because the past violent incidents occurred at prisons in which Pinson is no longer incarcerated, and Pinson did not assert that he was in danger at the Talladega prison. Order dated August 3, 2010, ROA at 50, 2010 WL 3036682.
[1] Pinson argues that he was not required to make a showing of irreparable injury because he alleged a constitutional violation. To be entitled to a preliminary injunction, the movant must show that he will suffer irreparable injury if the preliminary injunction is denied. Kikumura, 242 F.3d at 955. Regardless of the nature of the injury, the party seeking injunctive relief 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." Heideman, 348 F.3d at 1189 (quoting Wisc. Gas. Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985)) (emphasis in original). We have stated that "[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary." Id. at 963 (quoting *49211A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948.1 (2d ed.1995)). However, this statement relates only to the irreparability aspect of the alleged injury, and not to its imminence. We may assume that a constitutional injury is irreparable in the sense that it cannot be adequately redressed by post-trial relief. However, that has no bearing on whether the alleged constitutional injury is imminent. If the possibility of future harm is speculative, the movant has not established that he will suffer "irreparable injury . . . if the preliminary injunction is denied. . . ." Kikumura, 242 F.3d at 955 (emphasis added). Pinson's contention that he need not make a showing of future injury is without merit.
[2] Pinson also argues that he did make a showing of irreparable injury. The district court did not abuse its discretion when it determined that Pinson's allegations did not show that he was in imminent danger at the Talladega prison. The district court could reasonably conclude that the past incidents did not show a likelihood of future harm to Pinson at Talladega because they did not occur at Talladega. Pinson requested an injunction preventing defendants from housing him in the same institution with inmates or prison gangs "who pose a known, specific risk of harm toward Plaintiff," Emergency Mot. for a Prelim. Inj., ROA at 15, but did not allege that he was, in fact, being housed with such inmates. Further, we fail to see how being housed in the same correctional institution (rather than in the same unit or the same cell) as inmates with whom he has some unspecified history would pose an immediate risk of harm to Pinson. While his allegations could be sufficient to state a claim for damages based on past injuries,
**4 [3] Finally, Pinson argues that the district court erred by not holding a hearing or issuing an order to show cause before denying his motion for a preliminary injunction. In making its determination, the district court assumed that Pinson's allegations were true. Therefore, there were no contested facts upon which to hold a hearing, and the district court did not abuse its discretion in failing to hold one. The district court was also not required to notify Pinson, through a show cause order or otherwise, that his allegations were insufficient prior to denying the preliminary injunction. Although pro se filings must be construed liberally, the district court need not assume the role of the pro se litigant's advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
For these reasons, the district court's denial of Pinson's motion for preliminary injunction is affirmed. Pinson's motion to proceed in forma pauperis on appeal (Dkt. No. 9795179) is granted. Pinson's motion to expedite consideration of the appeal (Dkt. No. 9792332) is denied as moot.
John Rainey, Canon City, CO, pro se.
Jacquelynn Nichole Rich Fredericks, Colorado Attorney General's Office, Denver, CO, for Defendants.
MICHAEL E. HEGARTY, United States Magistrate Judge.
*1 Before the Court are Plaintiffs Motion for Investigation for Being Denied Access to the Court and Preliminary Injunction and Temporary Restraining Order [filed September 10, 2012; docket # 55] and Plaintiffs Reply Motion for Investigation for Being Denied Access to the Court and Preliminary Injunction and Temporary Restraining Order [filed September 19, 2012; docket # 61]. The Motions have been referred to this Court for recommendation. (Dockets # 57 and # 63.) The motions have been briefed to the extent allowed by law, and the Court finds that oral argument will not assist in the adjudication of the motions. For the reasons that follow, the Court RECOMMENDS Plaintiffs Motions be
Plaintiff brings this lawsuit under 42 U.S.C. § 1983 as a pro se litigant incarcerated in Colorado State Penitentiary. Plaintiff filed his initial complaint on June 1, 2012, and an Amended Complaint as a matter of right on August 3, 2012. (Docketsl, 37.) Plaintiff alleges essentially that Defendants deprived him of his First (access to the courts and freedom of religion), Eighth (deliberate indifference to medical needs), and Fourteenth (due process) Amendment rights by refusing to correct discrepancies in meals that are served in contravention of medical orders to provide a "mechanical soft diet," and orders to provide a "religious diet." (Docket # 37 at 4-11.) As a result of Defendants' alleged refusal to correct deficiencies, Plaintiff asserts that he has lost 18 pounds in less than 90 days. (Id. at 4.) Further, Plaintiff contends that certain Defendants have improperly characterized his grievances as "frivolous." (Id. at 5.) Finally, Plaintiff alleges the Defendants have improperly removed legal documents from his cell and from his mailings to the Court. (Id. at 7-9.) As relief, Plaintiff requests actual and punitive damages against each Defendant in various amounts. (Id. at 20.) The Plaintiff makes no request for injunctive relief in the Amended Complaint.
Plaintiff filed the present motions on September 10, 2012 and September 19, 2012. Although the motions are vague, prolix and somewhat difficult to comprehend, the Court has construed these motions as seeking different forms of preliminary injunctive relief: an investigation into charges that facility staff have tampered with his legal mail (Sept 10) and a transfer to another facility (Sept 19). Specifically, Plaintiff filed the motion for investigation upon suspicion that the Department of Corrections ("DOC") has opened Plaintiffs outgoing mail and removed or altered certain documents intended for the Court. (Docket # 55, 1.) In light of these allegations, Plaintiff claims his constitutional right to access the Court has been violated. (Id. at 3.) As relief, Plaintiff seeks reimbursement of his photocopying charges, an investigation into his charges, and an order allowing him to inspect the documents he filed with, and are in possession of, the Court. (Id. at 4-5.)
*2 Plaintiff filed the motion for transfer arguing that his Amended Complaint was tampered with and altered, and that he was denied a transfer to the Sterling facility at the last minute "so that he can continue to be starved and denied medical treatment." (Docket # 61 at 3.) Plaintiff seeks an order moving him to "Sterling Ad-Seg." (Id. at 4.)
Defendants respond to the motions arguing that Plaintiffs requests for injunctive relief are not related to his claims against them in this case and, alternatively, that Plaintiff cannot meet the requirements necessary to justify preliminary injunctive relief, including a showing of imminent harm and a likelihood of success on the merits, in this case.
Although vague, prolix and difficult to decipher, the Court construes Plaintiffs first-filed motion for injunctive relief as a request for an order requiring the CDOC to conduct an investigation into his charges that Defendants are improperly confiscating his legal materials from his cell or from the envelopes he prepares for mailing.
Because a preliminary injunction is intended to preserve the status quo until the Court has an opportunity to reach the merits, a party moving for a preliminary injunction "must establish `a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint.'" Little v. Jones, 607 F.3d 1245, 1251 (10th Cir.2010) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.1994)). While the injuries alleged in the motions (confiscation of legal materials and deprivation of food) relate to factual allegations made in the Amended Complaint, and while the Plaintiff attributes his alleged deprivation of food to the named Defendants in the Amended Complaint, he does not attribute the alleged confiscation of legal materials to any Defendant in the case.
Personal participation is an essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976). To establish personal participation, Plaintiff must show that each Defendant caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Here, the Plaintiff fails to show how any of the Defendants allegedly confiscated his legal materials.
*3 Plaintiffs failure to identify Defendants is also problematic because of the Court's general inability to enjoin non-parties. See Fed.R.Civ.P. 65(d). According to Rule 65(d), an injunction binds only the parties, their "officers, agents, servants, employees, and attorneys," and other persons who are in active concert therewith. Because Plaintiff has failed to show that any of the named Defendants participated in the alleged mail tampering, the Court is not persuaded that it could stop the activity simply by enjoining Defendants. Therefore, the Court recommends that the District Court deny Plaintiffs requests for preliminary injunctive relief in the form of an investigation and a transfer to another facility based upon any alleged confiscation and tampering of his legal materials.
A preliminary injunction is an extraordinary remedy that should be granted only when the moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir.2005). In the Tenth Circuit, a party requesting a preliminary injunction 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. The burden is on the movant to establish his right to the relief requested. Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir.1975).
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, the Tenth Circuit has 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 it 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.
Here, Plaintiff appears to seek a preliminary injunction that would require Defendants to act in a way that (Plaintiff alleges) is contrary to their prior practices, i.e., to conduct an investigation into charges of improper food handling and to transfer him to another facility. Given the relief Plaintiff appears to seek, the relief sought would alter the status quo rather than preserve it and would also require Defendants to engage in affirmative actions. For these reasons, the injunctive relief sought by Plaintiff "constitutes a specifically disfavored injunction" that "must be more closely scrutinized." Schrier, 427 F.3d at 1259, 1261.
*4 It is well established that "Necause 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).
Here, the Plaintiff must first show that he will suffer irreparable injury if his request for injunctive relief is denied. Id. 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 Wisconsin 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. (emphasis in original) (citation omitted).
Here, the Plaintiff contends that he has lost 23 pounds as a result of Defendants' alleged refusal to abide by his medically prescribed "mechanical soft" diet. However, the Plaintiff does not argue that he suffers any adverse health effects as a result of the lost weight; as such, the Court cannot find that Plaintiffs claimed injury is more than "merely serious or substantial," or is of such imminence that there is a clear and present need" for a preliminary injunction here. Therefore, the Court concludes the Plaintiff fails to demonstrate the likelihood of an irreparable injury as required to impose disfavored injunctive relief in this matter.
However, in his Amended Complaint, the Plaintiff alleges (among other claims) "deliberate indifference to his medical needs," which the Court construes as a claim for violation of his Eighth Amendment right to be free from cruel and unusual punishment. I am aware that a presumption of irreparable injury exists where constitutional rights are infringed. Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir.2001) (holding that a presumption of irreparable injury exists where plaintiff claimed that monetary relief would not properly redress the violation of his right to free exercise of religion caused by previous denials of pastoral visits). Thus, to be entitled to a presumption of irreparable injury, the Plaintiff must establish a substantial likelihood of success on his constitutional claim.
Under the Eighth Amendment, prisoners are constitutionally entitled to "humane conditions of confinement guided by `contemporary standards of decency.'" Penrod v. Zavaras, 94 F.3d 1399, 1405 (10th Cir.1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Accordingly, prison officials must "ensur [e] inmates receive the basic necessities of adequate food, clothing, shelter, and medical care and . . . tak[e] reasonable measures to guarantee the inmates' safety." Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.1998) (citing Farmer v. Brennan, 511 U.S. 825, 832-33 (1994)). Prisoners state a claim of cruel and unusual punishment under the Eighth Amendment by alleging prison officials demonstrated "deliberate indifference to a prisoner's serious illness or injury," or that prison officials "have, with deliberate indifference," involuntarily exposed a prisoner to conditions "that pose an unreasonable risk of serious damage to [the inmate's] future health." Helling v. McKinney, 509 U.S. 25, 35 (1993); Estelle, 429 U.S. at 105.
*5 Plaintiff must meet both the objective and subjective components constituting the test for deliberate indifference. Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir.2006). The objective component is met "if the harm suffered is `sufficiently serious' to implicate the Cruel and Unusual Punishment Clause." Id. (quoting Kikumura v. Osagie, 461 F.3d 1269, 1291 (10th Cir.2006), overruled on other grounds by Robbins v. Okla., 519 F.3d 1242 (10th Cir.2008)). The Tenth Circuit established "a medical need is sufficiently serious `if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Horton v. Ward, 123 F. App'x 368, 371 (10th Cir.2005) (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.2005)).
The subjective component is met if the plaintiff demonstrates defendants "knew he faced a substantial risk of harm and disregarded that risk, by failing to take reasonable measures to abate it." Callahan, 471 F.3d at 1159 (quoting Kikumura, 461 F.3d at 1293). The subjective component requires an "inquiry into a prison official's state of mind when it is claimed that the official has inflicted cruel and unusual punishment." Kikumura, 461 F.3d at 1293 (quoting Farmer, 511 U.S. at 838). This component is equivalent to "criminal recklessness, which makes a person liable when she consciously disregards a substantial risk of harm." Beauclair v. Graves, 227 F. App'x 773, 776 (10th Cir.2007) (quoting Mata v. Saiz, 427 F.3d 745, 752 (10th Cir.2005)). "A prisoner may satisfy the subjective component by showing that defendants' delay in providing medical treatment caused either unnecessary pain or a worsening of [the] condition." Mata, 427 F.3d at 755. However, "a delay in medical care `only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm.'" Mata, 427 F.3d at 751 (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir.2001)). Substantial harm includes "lifelong handicap, permanent loss, or considerable pain." Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.2001).
First, while Plaintiffs "mechanical soft" diet is one that has been medically prescribed, he has not established that his claimed injury—weight loss—is "sufficiently serious" or "one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." The Court concludes that weight loss, on its own, does not rise to the level of a substantially serious medical need protected by the Eighth Amendment. Thus, the Plaintiff has failed to show he is substantially likely to succeed in demonstrating the objective component of an Eighth Amendment claim.
Moreover, the Plaintiff has not shown he is likely to succeed in demonstrating the subjective component that Defendants consciously disregarded a substantial risk of harm. The evidence provided thus far demonstrates that the Defendants have attempted to comply with the prescription diet and with Plaintiffs requests concerning his diet. For example, on March 5, 2012, Capt. Richard, CSP Food Service Supervisor, issued a "kite response" to the Plaintiff in which he states that a "one tray meal" had been implemented for lunches and that such implementation was approved by the dietician and "HQ food service." See docket # 21 at 6.
*6 The Plaintiff does not rebut this evidence; rather, he appears to complain that his bread his chopped up so that he cannot make sandwiches and that he is being served canned fruit rather than fresh fruit he can eat, like bananas or oranges. However, such disagreement with "treatment" (his diet) does not amount to deliberate indifference. See Perkins v. Kansas Dep't of Corrs., 165 F.3d 803, 811 (10th Cir.1999). Plaintiff also claims that certain food items required by his diet tickets are not included on his tray, but he also admits that he gets a special snack to help him gain weight.
Therefore, the Court concludes that the Plaintiff has failed to establish a substantial likelihood he will succeed in demonstrating the Defendants consciously disregarded a serious medical condition that resulted in substantial harm. See Kikumura, 242 F.3d at 955 (movant seeking a preliminary injunction that would disturb the status quo must demonstrate not only a substantial likelihood of success on the merits, but also that the factor weighs heavily and compelling in his favor). Consequently, the Court finds that Plaintiff has failed to demonstrate a presumption of irreparable harm necessary to impose a preliminary injunction that would alter the status quo in this case.
Defendants contend that a preliminary injunction in this case would likely undermine their supervisory authority over prison inmates and negate CDOC policy. The Plaintiff argues that he may continue to lose weight if an injunction is not imposed. The Court finds that, considering the lack of irreparable injury in this case, the burden on Defendants (and to the public, in general) outweighs any harm the Plaintiff may suffer from denial of his requests for an investigation of food issues and a transfer at this early stage of the litigation.
Since the Court has already determined that Plaintiff is unlikely to demonstrate Defendants violated his Eighth Amendment rights, the Court finds that granting Plaintiffs motion would be adverse to the public interest.
In sum, the Court finds that, with respect to Plaintiffs allegations of mail tampering and confiscation of legal materials, the Plaintiff has failed to establish a relationship between the injury claimed in the party's motion and the conduct asserted in the complaint. Further, the Plaintiff has not met his burden to show that a preliminary injunction regarding his allegations of improper food handling, particularly one that is disfavored, is necessary in this case. Therefore, this Court recommends that the District Court find the Plaintiff has failed to demonstrate he is entitled to a temporary restraining order or preliminary injunction in this matter.
Based upon the foregoing, this Court respectfully RECOMMENDS that the Plaintiffs Motion for Investigation for Being Denied Access to the Court and Preliminary Injunction and Temporary Restraining Order [filed September 10, 2012; docket # 55] and Plaintiffs Reply Motion for Investigation for Being Denied Access to the Court and Preliminary Injunction and Temporary Restraining Order [filed September 19, 2012; docket # 61] be
