United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. SENIOR DISTRICT JUDGE
matter is before the Court on the following motions: (1)
Plaintiff's Motion for Preliminary Injunction and
Temporary Restraining Order (ECF No. 16); (2) Interested
Party KDOC's Motion for Extension (ECF No. 20); and (3)
Plaintiff's Motion to Appoint Counsel (ECF No. 23).
Motion for Preliminary Injunction and Temporary Restraining
Order (ECF No. 16)
states he seeks a temporary restraining order and/or
preliminary injunction to order Defendants to return his
legal mail and pleadings, to enjoin Defendants from seizing
his legal papers or placing him in segregation without just
cause, and to require Defendants to furnish him with pens,
paper, copies, and access to the law library. He alleges
Defendants have delayed, lost or rejected his legal mail and
have confiscated legal pleadings he had prepared for a
challenge to his conviction and for this lawsuit, resulting
in delay. Plaintiff further alleges he was placed in
segregation “to further disrupt and delay [him] from
serving any other process in regards to his 1983
complaint.” He states he has exhausted his
administrative remedies as to these claims.
motion raises claims that are not made in his Complaint. In
his Complaint, he makes an Eighth Amendment failure to
protect claim. His motion attempts to obtain relief for
retaliation and a denial of access to the courts. A
preliminary injunction grants intermediate relief of the same
character as that which may be finally granted. De Beers
Consol. Mines, Ltd. v. United States, 325 U.S. 212, 220
(1945). The Court may not enter a preliminary injunction when
the movant seeks intermediate relief beyond the claims of the
complaint. See Stouffer v. Eulberg, No.
CIV-09-320-C, 2010 WL 567998, at *1, *2 & n. 3 (W.D.
Okla. Feb. 11, 2010) (citing Omega World Travel, Inc. v.
Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997)
(“[A] preliminary injunction may never issue to prevent
an injury or harm which not even the moving party contends
was caused by the wrong claimed in the underlying
even if Plaintiff had properly requested and been granted
leave to amend or supplement his Complaint to add claims for
retaliation and denial of access to the courts, Plaintiff has
not met his burden to show that entry of a preliminary
injunction is warranted. A movant seeking a preliminary
injunction must establish “four factors: (1) a
likelihood of success on the merits [of his described claim];
(2) a likelihood that [he] will suffer irreparable harm in
the absence of preliminary relief; (3) that the balance of
equities tips in [his] favor; and (4) that the injunction is
in the public interest.” White v. Kansas Dep't
of Corr., 617 Fed.Appx. 901, 904 (10th Cir.
2015) (quoting RoDa Drilling Co. v. Siegal, 552 F.3d
1203, 1208 (10th Cir. 2009)). Because a
preliminary injunction is an extraordinary remedy, see
GTE Corp. v. Williams, 731 F.2d 676, 678
(10th Cir. 1984), the right to relief must be
clear and unequivocal. See Penn v. San Juan Hospital,
Inc., 528 F.2d 1181, 1185 (10th Cir. 1975).
has not met his burden. First, he has failed to demonstrate
that the injunction is not adverse to the public interest of
prison officials' proper administration of their
facilities. A federal court considering a motion for
injunctive relief affecting the conditions of a
prisoner's confinement must give substantial weight to
the adverse impact on public safety and on prison operation.
See 18 U.S.C. § 3626(a)(2); Stephens v.
Jones, 494 Fed.Appx. 906, 911-12 (10th Cir. 2012). The
Supreme Court has declared that courts are not to substitute
their judgment on matters of prison administration for the
determinations made by prison officials. See O'Lone
v. Estate of Shabazz, 482 U.S. 342, 353 (1987). Granting
the relief Plaintiff seeks would require this Court to
intrude directly into the affairs of state prison
administration, which for important policy reasons is a step
courts should be reluctant to take. See Turner v.
Safley, 482 U.S. 78, 84-86 (1987); cf.
Stephens, 494 Fed.Appx. at 912 (affirming denial of
requested injunctive relief as “overbroad and more
intrusive than necessary”).
Plaintiff has not made a showing of probable irreparable
harm. “[A] showing of probable irreparable harm is the
single most important prerequisite for the issuance of a
preliminary injunction.” Dominion Video Satellite,
Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260
(10th Cir. 2004). “To constitute irreparable
harm, an injury must be certain, great, actual and not
theoretical.” Heideman v. South Salt Lake
City, 348 F.3d 1182, 1189 (10th Cir. 2003)
(internal quotation marks omitted). Mr. Daniels must
establish 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. at 1189.
conclusory allegations of past harassment with a retaliatory
motive do not demonstrate he will suffer an imminent future
injury that is irreparable if no preliminary injunction is
issued. See Faircloth v. Schwartz, No.
12-CV-02764-BNB, 2012 WL 6737186, at *2 (D. Colo. Dec. 28,
2012) (denying requested injunctive relief of transfer and
protective order to prevent retaliation where plaintiff
claimed he had been harassed, searched, prevented from filing
an affidavit in a pending case in a timely manner, removed
from general population, and convicted of disciplinary
offenses in retaliation for filing a lawsuit).
these reasons, Plaintiff's Motion for Preliminary
Injunction and Temporary Restraining Order (ECF No. 16) is
Party KDOC's Motion for Extension (ECF No. 20)
requested an extension of time to November 19, 2018, to file
the Martinez report ordered by the Court. The motion
demonstrated good cause for an extension, and KDOC filed the
Martinez report on November 19, 2018. As a result,
the motion is granted.
Motion for Appointment of Counsel (ECF No. 23)
is no constitutional right to the appointment of counsel in a
civil case. Durre v. Dempsey, 869 F.2d 543, 547
(10th Cir. 1989); Carper v. Deland, 54
F.3d 613, 616 (10th Cir. 1995). The decision
whether to appoint counsel in a civil matter lies within the
discretion of the district court. Williams v. Meese,
926 F.2d 994, 996 (10th Cir. 1991). “The
burden is on the applicant to convince the court that there
is sufficient merit to his claim to warrant the appointment
of counsel.” Steffey v. Orman, 461 F.3d 1218,
1223 (10th Cir. 2006), quoting Hill v.
SmithKline Beecham Corp., 393 F.3d 1111, 1115
(10th Cir. 2004). It is not enough “that
having counsel appointed would have assisted [the prisoner]
in presenting his strongest possible case, [as] the same
could be said in any case.” Steffey, 461 F.3d
at 1223, quoting Rucks v. Boergermann, 57 F.3d 978,
979 (10th Cir. 1995). In deciding whether to
appoint counsel, the district court ...