UNITED STATES CO URT 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 pane l has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - 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 fo r 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 acc ess to the courts, retaliat ed against him for filing grievances, improperly terminated his j ob in the prison law library, exhibited deliberate indifference to hi s health, and forced him to participate in a prison program. He sought declarator y, injunctive, and monetary relief. Mr. Stephens also filed a motion for a temporar y restraining order (TRO) re garding access to his legal materials. Defendants file d a motion for summary judgment, as did Mr. Stephens. Mr. Stephens also filed a motion for sancti ons against defendants and their counsel. Adopting the recommendations of a magistrate judge, the district court denied the TRO motion, denied the motion for sanc tions, denied Mr. Stephens’s summary judgment motion, and granted in part a nd 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 a ppeal designated three orders for appeal: the order denying his TRO motion, the order denying his motion for sanctions, and the order- 3 - on the summary judgment motions. Concer ned that none of these orders were properly appealable final judgm ents, the Clerk of this cour t directed Mr. Stephens to either (1) file a brief descri bing the legal basis for this c ourt’s exercise of jurisdiction over any of the orders listed in his notice of appeal, (2) fi le 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. Ste phens filed a brief, and the jurisdictional matter has been referr ed to this panel. In his jurisdictional brief, Mr. Stephe ns claims that th e collateral order doctrine provides our jurisdiction over the or der 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[ri ng] in [the magistra te 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 jurisdic tional brief or his merits briefs, regarding our jurisdic tion over the order denying his motion for- 4 - sanctions or the order concerning the su mmary judgment motions. Hence, he has failed to meet his burden to establish th is 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 jurisd iction 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 bur den, not ours, to conjure up possible theories to invoke our lega l 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 (10t h Cir. 1996) (stating that “[o]ur duty to consider unargued obstacles to subject matter jurisdiction doe s not affect our discretion to decline to consider waived arguments that might have supported such jurisdiction”). We therefore dismiss his app eal from those orders for failu re to prosecute. We also note that in his merits brief, Mr. Stephe ns has not addressed the order denying his motion for sanctions. Thus, in addition to failing to esta blish 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 Ci r. 1990) (failing to argue an issue listed in a notice of appeal waives the issue). III. MERITS Having established that we only posse ss 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, file d February 18, 2010, Mr . Stephens asked the- 5 - court to protect his access to his legal materials “during th e course of the instant and future federal litigation,” R. at 52, base d on an allegation that the WSKCC warden, defendant Marvin Vaughn, ha d denied his February 10th request to store those materials. Warden Vaughn a llegedly stated that those ma terials “must be shipped out on February 23, 2010.” Id. at 49 (internal quotation mark s omitted). Mr. Stephens also included conclusory allegations that DOC “prison official s 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 ha ve 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 lega l materials for ninety days. Nonetheless, he asked the court “to issue a temporary restraining order and/or preliminary injunction to prevent [DOC] pr ison officials, under supervision of the Defendant(s), from taking actions that will result in irre parable harm to [his] right and ability to litigate actions before the Courts.” Id. at 116. Mr. Ste phens also filed a motion to file a second supplement to his TRO motion and the second supplement. The district court denied the motion on th e 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.- 6 - at 447-48. The court noted that its ruling did not prevent Mr. Stephens from filing a separate motion regarding thes e concerns. Consequently, the court struck the second supplement because Mr. Ste phens had filed it without leave of the court. The TRO motion was referred to a ma gistrate judge. In his report and recommendation, the magistrate judge firs t noted that the request for a TRO was mooted by defendants’ response to it. Ther efore, 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 reasone d that the motion was moot as to Warden Vaughn because Mr. Stephens was no long er 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 ci vil action with respect to prison conditions,” any “[p]reliminary injunctive relie f must be narrowly drawn, extend no further than necessary to correct the harm the court fi nds requires preliminar y relief, and be the least intrusive means necessary to correct that harm.” Id. The magistrate judge found that the relief Mr. St ephens requested was “an injunction throughout the [DOC] that would prevent any undefined action that could be characterized as ‘irreparable harm.’” R. at 534. In a ddition, the magistrate judge observed that Mr. Stephens was no longer housed at the John Lilley Correctional Center but had been transferred to the Jo seph Harp Correctional Center , and Mr. Stephens had not suggested any concerns about his ability to access his legal materials there.- 7 - Consequently, the magistrate judge concluded that Mr. Stephens had not shown the irreparable harm necessary to justify the pr eliminary injunctive relief requested in his TRO supplement. Over Mr. Stephens’s objec tion, the district court adopted the magistrate judge’s recommendation in full and denied the TRO motion. The court added that although Mr. Stephens at tempted 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 de nying the TRO motion as one denying a motion for preliminary injunc tive relief. We review th e 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 a buses its discretion when it commits an error of law or makes clearl y erroneous factual fi ndings,” and “[o]ur review of the district court’s ex ercise 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 th e merits; (2) irreparable harm to the movant if the injunction is de nied; (3) the thr eatened injury outweighs the harms that the pre liminary injunction may cause the opposing party; and (4) the injuncti on, 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, In c. v. Echostar Satellite Corp. , 356 F.3d 1256, 1261 (10th Ci r. 2004) (brackets and internal quotation marks omitted). As a pro se litigant, Mr. Stephe ns’s legal filings are entitled to a liberal- 8 - 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 re quest for relief. He also argues that his request for preliminary injunctive relief wa s not moot, and in any event the exception to mootness for cases capab le of repetition yet evad ing review applies here, apparently because he allegedly has been s ubject to a string of transfers designed to interfere with access to hi s 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-wid e unconstitutional actions, ra ther 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. Stephe ns on all counts. First, the focus of his original TRO request was on access to his legal materials at WS KCC. That request was undoubtedly mooted by his tr ansfer to the John Lilley Co rrectional Center. “[T]he constitutional mootness doctrine focuses upon wh ether a definite c ontroversy 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 commence ment of the action.” Jordan v. Sosa , 654 F.3d 1012, 1024 (10th Cir. 2011) (emphasis added) (internal quotation marks omitted). A- 9 - preliminary injunction directed at WSKCC prison officials woul d not have provided any “conclusive relief” because Mr. Stephens was no longer housed there. 1 Furthermore, the excepti on for cases capable of re petition yet evading review is inapplicable to Mr. Stephe ns’s original TRO motion or his supplement to it. In part, Mr. Stephens’s insistence that this exception to mootness a pplies to his case appears to be based on his misinterpr etation 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 shou ld consider the [TRO] motion as one for a preliminary injunction and de ny relief based on mootne ss,” R. at 532, he later found only the initial request regard ing Warden Vaughn and the WSKCC to be moot, id. at 533-34. In any event, the excepti on “is a narrow one,” and “outside of the class-action context,” it requires the mo vant to show that “the challenged action was in its duration too short to be fully li tigated 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 omit ted)). As to the original TRO motion, Mr. Stephens has made no show ing of a “reasonable expect ation” that he would be

1 Although Mr. Stephens complains that defendants did not m eet their burden of showing mootness, it appear s 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 Ci r. 1982) (“Any fe deral court must, sua sponte , satisfy itself of its power to adjudicate in every case and at ev ery stage of the proceeding, and the court is not bound by the acts or pleadings of the parties.”).- 10 - 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 retaliat ory, 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 st atus affected his ability to request appropriately tailo red relief in his TRO supple ment. Again, the requested relief was for the court to “issue a temporary restraini ng order and/or preliminary injunction to prevent [DOC] prison official s, 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 Cour ts.” R. at 116. In his objection to the magistrate judge’s recommendation, Mr. Ste phens argued that relief could be “narrowly drawn” to “recover [his] confiscated legal materi als,” “end prison-to-p rison transfers and DOC one cubic foot legal material limit ru les,” “provide meaningful access to legal resources, tools, time access , relevant legal-related inte rnet information,” and “access to DOC procedures.” Id. at 628. The district court did not abuse its discretion in finding that granting these purportedly narrow ed requests still w ould have run afoul of the statutory requirement s of 18 U.S.C. § 3626(a)(2) that preliminary injunctive relief in a civil action rega rding prison conditions must be “narrowly drawn” and “the least intrusive means necessa ry to correct [the] harm.” The problem lies not in- 11 - Mr. Stephens’s abilities as a pro se litigant but in the fact that he continued to seek very broad preliminary injunctive relief base d on conclusory allegations. The district court did not abuse its discretion in findi ng that such an orde r would have been overbroad and more intr usive than necessary. Finally, the district court did not err in failing to construe Mr. Stephens’s TRO motion “as alleging retaliatory DOC syst em-wide unconstitutional actions, rather than incorrectly limiti ng the scope of review only to [h is] residence at the filing time of the Complaint.” Aplt. Op ening Br. at 9. The cour t 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 probl ems at his current housing assignment. And as noted, the court struck the second supplement to Mr. Stephens’s TRO motion, which substantiall y and, in the district c ourt’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 prep ayment of fees or costs, and we remind him of his obligation to continue making partial payments until- 12 - his appellate filing fee is paid in fu ll. We deny Mr. St ephens’s motion for appointment of counsel.

Entered for the Court
Wade Brorby Senior Circuit Judge