UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ROBERT MARK STEPHENS, 

 Plaintiff-Appellant, 

v. 

JUSTIN JONES, Director, DOC; 

GENESE MCCOY, Medical Services 

Administrator; DONNA LAYMON, 

Warden; MARVIN VAUGHN, Warden; 

WILLIAM MONDAY, Deputy Warden; 

MARY STEVENS, Correctional Health 

Services Administrator; CUONG PHAM, 

Doctor; JOHN STEWART, Psychologist; 

CARRIE BRIDGES, Procedures Officer; 

JOE OWENS, Unit Manager; JACKIE 

PERKINS, Law Library Supervisor; 

KAREN WALKER, Kitchen Supervisor, 

 Defendants-Appellees. 

No. 11-6284 

(D.C. No. 5:10-CV-00166-D) 

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL, 

Circuit Judge. 

 

 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 21, 2012

Elisabeth A. Shumaker 

Clerk of Court
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 Pro se plaintiff Robert Mark Stephens, a state prisoner in the custody of the 

Oklahoma Department of Corrections (DOC), appeals from several district court 

orders. We dismiss the appeal in part for failure to prosecute and affirm in part. 

I. BACKGROUND

 In a complaint filed under 42 U.S.C. § 1983, Mr. Stephens asserted that during 

his stay at the William S. Key Correctional Center (WSKCC), prison officials denied 

him timely and adequate access to the courts, retaliated against him for filing 

grievances, improperly terminated his job in the prison law library, exhibited 

deliberate indifference to his health, and forced him to participate in a prison 

program. He sought declaratory, injunctive, and monetary relief. Mr. Stephens also 

filed a motion for a temporary restraining order (TRO) regarding access to his legal 

materials. Defendants filed a motion for summary judgment, as did Mr. Stephens. 

Mr. Stephens also filed a motion for sanctions against defendants and their counsel. 

Adopting the recommendations of a magistrate judge, the district court denied the 

TRO motion, denied the motion for sanctions, denied Mr. Stephens’s summary 

judgment motion, and granted in part and denied in part defendants’ summary 

judgment motion. One of Mr. Stephens’s claims survived these rounds of litigation. 

This appeal followed. 

II. APPELLATE JURISDICTION 

Mr. Stephens’s notice of appeal designated three orders for appeal: the order 

denying his TRO motion, the order denying his motion for sanctions, and the order 
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on the summary judgment motions. Concerned that none of these orders were 

properly appealable final judgments, the Clerk of this court directed Mr. Stephens to 

either (1) file a brief describing the legal basis for this court’s exercise of jurisdiction 

over any of the orders listed in his notice of appeal, (2) file an order from the district 

court expressly resolving all remaining claims against all remaining parties, (3) file a 

voluntary dismissal, or (4) do nothing and thereby permit this court to dismiss the 

appeal for failure to prosecute. Mr. Stephens filed a brief, and the jurisdictional 

matter has been referred to this panel. 

In his jurisdictional brief, Mr. Stephens claims that the collateral order 

doctrine provides our jurisdiction over the order denying his TRO motion. We agree 

that we have jurisdiction over that order, but for a different reason. The denial of a 

TRO motion is “ordinarily not appealable,” Office of Pers. Mgmt. v. Am Fed’n of 

Gov’t Emps., 473 U.S. 1301, 1303-04 (1985), but the magistrate judge recommended 

that the TRO motion be treated as one for a preliminary injunction. The district court 

adopted the recommendation, “fully concur[ring] in [the magistrate judge’s] findings 

and conclusions.” R. at 678. Thus, we construe the district court’s order as one 

denying a preliminary injunction, not a TRO. Orders denying a preliminary 

injunction are immediately appealable under 28 U.S.C. § 1292(a)(1). Utah ex rel. 

Utah State Dep’t of Health v. Kennecott Corp., 14 F.3d 1489, 1496 (10th Cir. 1994). 

Mr. Stephens has presented no argument, in either his jurisdictional brief or his 

merits briefs, regarding our jurisdiction over the order denying his motion for 
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sanctions or the order concerning the summary judgment motions. Hence, he has 

failed to meet his burden to establish this court’s jurisdiction over those orders. See 

United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004) (stating 

that “the party claiming appellate jurisdiction bears the burden of establishing our 

subject-matter jurisdiction”); see also Raley v. Hyundai Motor Co., 642 F.3d 1271, 

1275 (10th Cir.) (explaining that “[i]t is the appellant’s burden, not ours, to conjure 

up possible theories to invoke our legal authority to hear [an] appeal”), cert. denied, 

132 S. Ct. 779 (2011); United States ex rel. Ramseyer v. Century Healthcare Corp., 

90 F.3d 1514, 1518 n.2 (10th Cir. 1996) (stating that “[o]ur duty to consider 

unargued obstacles to subject matter jurisdiction does not affect our discretion to 

decline to consider waived arguments that might have supported such jurisdiction”). 

We therefore dismiss his appeal from those orders for failure to prosecute. We also 

note that in his merits brief, Mr. Stephens has not addressed the order denying his 

motion for sanctions. Thus, in addition to failing to establish appellate jurisdiction 

over that order, he has forfeited appellate consideration of it. See Abercrombie v. 

City of Catoosa, Okla., 896 F.2d 1228, 1231 (10th Cir. 1990) (failing to argue an 

issue listed in a notice of appeal waives the issue). 

III. MERITS 

Having established that we only possess jurisdiction over Mr. Stephens’s 

appeal from the district court’s denial of his TRO motion, we now turn to the merits 

of that appeal. In his TRO motion, filed February 18, 2010, Mr. Stephens asked the 
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court to protect his access to his legal materials “during the course of the instant and 

future federal litigation,” R. at 52, based on an allegation that the WSKCC warden, 

defendant Marvin Vaughn, had denied his February 10th request to store those 

materials. Warden Vaughn allegedly stated that those materials “must be shipped out 

on February 23, 2010.” Id. at 49 (internal quotation marks omitted). Mr. Stephens 

also included conclusory allegations that DOC “prison officials have previously 

taken actions to remove [his] legal materials from [his] access, upon knowledge or 

notice of pending litigation,” id., and that he had been previously “transported by 

DOC officials to prison facilities that have no meaningful access to the courts,” id. at 

50. 

In a supplement to the TRO motion filed August 31, 2010, Mr. Stephens stated 

that, on May 14, he had been transferred to the John Lilley Correctional Center, and 

that the warden there granted his request to store his legal materials for ninety days. 

Nonetheless, he asked the court “to issue a temporary restraining order and/or 

preliminary injunction to prevent [DOC] prison officials, under supervision of the 

Defendant(s), from taking actions that will result in irreparable harm to [his] right 

and ability to litigate actions before the Courts.” Id. at 116. Mr. Stephens also filed 

a motion to file a second supplement to his TRO motion and the second supplement. 

The district court denied the motion on the ground that it sought to enlarge the 

requested relief “to include other prison officials and issues relating to prison 

transfers, medical care, diet concerns, misconduct ‘write-ups,’ and retaliation.” Id.
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at 447-48. The court noted that its ruling did not prevent Mr. Stephens from filing a 

separate motion regarding these concerns. Consequently, the court struck the second 

supplement because Mr. Stephens had filed it without leave of the court. 

The TRO motion was referred to a magistrate judge. In his report and 

recommendation, the magistrate judge first noted that the request for a TRO was 

mooted by defendants’ response to it. Therefore, the magistrate judge recommended 

that the district court treat the TRO motion as one for a preliminary injunction and 

deny it. The magistrate judge then reasoned that the motion was moot as to Warden 

Vaughn because Mr. Stephens was no longer housed at the WSKCC. Next, the 

magistrate judge concluded that the relief Mr. Stephens sought in the supplement to 

his TRO motion would violate 18 U.S.C. § 3626(a)(2). In relevant part, § 3626(a)(2) 

requires that, “[i]n any civil action with respect to prison conditions,” any 

“[p]reliminary injunctive relief must be narrowly drawn, extend no further than 

necessary to correct the harm the court finds requires preliminary relief, and be the 

least intrusive means necessary to correct that harm.” Id. The magistrate judge 

found that the relief Mr. Stephens requested was “an injunction throughout the 

[DOC] that would prevent any undefined action that could be characterized as 

‘irreparable harm.’” R. at 534. In addition, the magistrate judge observed that 

Mr. Stephens was no longer housed at the John Lilley Correctional Center but had 

been transferred to the Joseph Harp Correctional Center, and Mr. Stephens had not 

suggested any concerns about his ability to access his legal materials there. 
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Consequently, the magistrate judge concluded that Mr. Stephens had not shown the 

irreparable harm necessary to justify the preliminary injunctive relief requested in his 

TRO supplement. 

Over Mr. Stephens’s objection, the district court adopted the magistrate 

judge’s recommendation in full and denied the TRO motion. The court added that 

although Mr. Stephens attempted to narrow the requested relief in his objection, he 

still had not met the requirements of § 3626(a)(2). 

As stated, we construe the order denying the TRO motion as one denying a 

motion for preliminary injunctive relief. We review the denial of preliminary 

injunctive relief for abuse of discretion. Gen. Motors Corp. v. Urban Gorilla, LLC, 

500 F.3d 1222, 1226 (10th Cir. 2007). “A district court abuses its discretion when it 

commits an error of law or makes clearly erroneous factual findings,” and “[o]ur 

review of the district court’s exercise of discretion is narrow.” Id. (internal quotation 

marks omitted). 

To obtain a preliminary injunction, the movant must show: “(1) a 

substantial likelihood of success on the merits; (2) irreparable harm to 

the movant if the injunction is denied; (3) the threatened injury 

outweighs the harms that the preliminary injunction may cause the 

opposing party; and (4) the injunction, if issued, will not adversely 

affect the public interest. 

Id. “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief 

must be clear and unequivocal.” Dominion Video Satellite, Inc. v. Echostar Satellite 

Corp., 356 F.3d 1256, 1261 (10th Cir. 2004) (brackets and internal quotation marks 

omitted). As a pro se litigant, Mr. Stephens’s legal filings are entitled to a liberal 
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construction, but we do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 

927 n.1 (10th Cir. 2008). 

In his opening appellate brief, Mr. Stephens posits that, as a pro se litigant, he 

was unable to craft a more narrowly drawn request for relief. He also argues that his 

request for preliminary injunctive relief was not moot, and in any event the exception 

to mootness for cases capable of repetition yet evading review applies here, 

apparently because he allegedly has been subject to a string of transfers designed to 

interfere with access to his legal materials by virtue of a DOC restriction on the 

volume of such materials a prisoner may take when transferred. He further 

complains that the district court should have construed his TRO motion “as alleging 

retaliatory DOC system-wide unconstitutional actions, rather than incorrectly 

limiting the scope of review only to [his] residence at the filing time of the 

Complaint.” Aplt. Opening Br. at 9. 

We disagree with Mr. Stephens on all counts. First, the focus of his original 

TRO request was on access to his legal materials at WSKCC. That request was 

undoubtedly mooted by his transfer to the John Lilley Correctional Center. “[T]he 

constitutional mootness doctrine focuses upon whether a definite controversy exists 

throughout the litigation and whether conclusive relief may still be conferred by the 

court despite the lapse of time and any change of circumstances that may have 

occurred since the commencement of the action.” Jordan v. Sosa, 654 F.3d 1012, 

1024 (10th Cir. 2011) (emphasis added) (internal quotation marks omitted). A 
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preliminary injunction directed at WSKCC prison officials would not have provided 

any “conclusive relief” because Mr. Stephens was no longer housed there.1

Furthermore, the exception for cases capable of repetition yet evading review 

is inapplicable to Mr. Stephens’s original TRO motion or his supplement to it. In 

part, Mr. Stephens’s insistence that this exception to mootness applies to his case 

appears to be based on his misinterpretation of the magistrate judge’s 

recommendation as denying the TRO motion as moot in its entirety. Although the 

magistrate judge did at first state that “[t]he Court should consider the [TRO] motion 

as one for a preliminary injunction and deny relief based on mootness,” R. at 532, he 

later found only the initial request regarding Warden Vaughn and the WSKCC to be 

moot, id. at 533-34. In any event, the exception “is a narrow one,” and “outside of 

the class-action context,” it requires the movant to show that “the challenged action 

was in its duration too short to be fully litigated prior to its cessation or expiration” 

and that “there is a reasonable expectation that the same complaining party will be 

subjected to the same action again.” Jordan, 654 F.3d at 1034-35 (emphasis added) 

(alterations and internal quotation marks omitted)). As to the original TRO motion, 

Mr. Stephens has made no showing of a “reasonable expectation” that he would be 

 

1

 Although Mr. Stephens complains that defendants did not meet their burden of 

showing mootness, it appears the magistrate judge took up the issue of mootness sua 

sponte, which is entirely permissible. See Harris v. Ill.-Cal. Exp., Inc., 687 F.2d 

1361, 1366 (10th Cir. 1982) (“Any federal court must, sua sponte, satisfy itself of its 

power to adjudicate in every case and at every stage of the proceeding, and the court 

is not bound by the acts or pleadings of the parties.”). 
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subject to the same conduct at the WSKCC. Therefore, the exception to mootness for 

cases capable of repetition yet evading review does not apply to his original motion. 

And to the extent Mr. Stephens’s reliance on this exception to mootness hinges on his 

allegations that his transfers were retaliatory, those allegations were conclusory and 

therefore insufficient to show a reasonable expectation that he would be subject to 

the same action in the future. 

Next, we are unconvinced that Mr. Stephens’s pro se status affected his ability 

to request appropriately tailored relief in his TRO supplement. Again, the requested 

relief was for the court to “issue a temporary restraining order and/or preliminary 

injunction to prevent [DOC] prison officials, under supervision of the Defendant(s), 

from taking actions that will result in irreparable harm to [his] right and ability to 

litigate actions before the Courts.” R. at 116. In his objection to the magistrate 

judge’s recommendation, Mr. Stephens argued that relief could be “narrowly drawn” 

to “recover [his] confiscated legal materials,” “end prison-to-prison transfers and 

DOC one cubic foot legal material limit rules,” “provide meaningful access to legal 

resources, tools, time access, relevant legal-related internet information,” and “access 

to DOC procedures.” Id. at 628. The district court did not abuse its discretion in 

finding that granting these purportedly narrowed requests still would have run afoul 

of the statutory requirements of 18 U.S.C. § 3626(a)(2) that preliminary injunctive 

relief in a civil action regarding prison conditions must be “narrowly drawn” and “the 

least intrusive means necessary to correct [the] harm.” The problem lies not in 
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Mr. Stephens’s abilities as a pro se litigant but in the fact that he continued to seek 

very broad preliminary injunctive relief based on conclusory allegations. The district 

court did not abuse its discretion in finding that such an order would have been 

overbroad and more intrusive than necessary. 

Finally, the district court did not err in failing to construe Mr. Stephens’s TRO 

motion “as alleging retaliatory DOC system-wide unconstitutional actions, rather 

than incorrectly limiting the scope of review only to [his] residence at the filing time 

of the Complaint.” Aplt. Opening Br. at 9. The court did not limit the scope of 

review to what occurred at the WSKCC. Instead, it noted the two transfers and 

observed that Mr. Stephens had not alleged any problems at his current housing 

assignment. And as noted, the court struck the second supplement to Mr. Stephens’s 

TRO motion, which substantially and, in the district court’s view, impermissibly, 

broadened the scope of his original TRO motion. We see no error. 

IV. CONCLUSION 

 For the reasons stated, we DISMISS this appeal IN PART for failure to 

prosecute and AFFIRM the district court’s denial of Mr. Stephens’s TRO motion. 

We grant Mr. Stephens’s motion to proceed on appeal without prepayment of fees or 

costs, and we remind him of his obligation to continue making partial payments until 

 
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his appellate filing fee is paid in full. We deny Mr. Stephens’s motion for 

appointment of counsel. 

 Entered for the Court 

 Wade Brorby 

 Senior Circuit Judge