UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

DAVID CIEMPA, 

 Plaintiff-Appellant, 

v. 

JUSTIN JONES; LEO BROWN, 

 Defendants-Appellees, 

and 

DICK BARTLEY; AL BLAIR; RICK 

BOYETT; WALTER DINWIDDIE; 

JAMES CAVE; JOHN DOE, sued as 

“Unknown Employee”; DEBBIE L. 

MORTON; KAMERON HARVANEK; 

G. MCCLARY; CURTIS HOOD; CHRIS 

REDEAGLE, 

 Defendants. 

No. 11-5127 

(D.C. No. 4:08-CV-00685-CVE-TLW) 

(N.D. Okla.)

 

 

ORDER AND JUDGMENT*

 

Before TYMKOVICH, BALDOCK, and GORSUCH, Circuit Judges. 

 

*

 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 

April 23, 2012

Elisabeth A. Shumaker 

Clerk of Court
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 Pro se prisoner David Ciempa interlocutorily appeals from the district court’s 

order denying his “Second Motion to Reassert Motion for Preliminary Injunction.” 

We have jurisdiction under 28 U.S.C. § 1292(a)(1), and we AFFIRM. 

Background 

 Ciempa is currently incarcerated by the Oklahoma Department of Corrections. 

In 2008, he sued various Department personnel in federal court, alleging that he was 

a member of “The Nation of Gods and Earths” (NGE) and that his religious freedoms 

were being violated.1

 In July 2009, Ciempa filed a motion for a preliminary injunction or a 

temporary restraining order, arguing that he was being denied (1) access to the prison 

chapel; (2) the opportunity to buy “mandated pork- or pork by-product-free hygienic 

products”; (3) a Halal diet; and (4) access to “the religious periodical The Five 

Percenter.” R. at 97-98. The district court denied the motion, noting that Ciempa 

had not served the motion on any defendant, and he had not demonstrated why notice 

should be waived. 

 

1

 According to Ciempa, NGE “traces its roots to the Black Muslim movement 

that emerged in the midtwenieth [sic] century and most directky [sic] to the Nation of 

Islam.” R. at 577. According to NGE literature, the white race is equated with the 

“Devil.” Id. at 711. “The NGE has been designated as a prison security threat group 

in Michigan, New Jersey, North Carolina, South Carolina, and Virginia.” Id. at 591 

n.5 (citations omitted). 
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 In December 2009, Ciempa filed a “Motion to Reassert His Motion for 

Preliminary Injunction.” Id. at 576. The district court, in August 2010, construed the 

motion as a second request for a preliminary injunction, and denied it on the merits, 

stating that “[t]he potential risk to prison safety that the requested injunction would 

create greatly outweighs the risk of harm to Ciempa,” and that it would not 

“second-guess prison officials’ reasonable determinations regarding prison safety 

without a fully developed record.” Id. at 642-43. Ciempa appealed to this court 

(No. 10-5120), where the appeal was dismissed for failure to prosecute. 

 Back in the district court, in August 2011, Ciempa filed a “Second Motion to 

Reassert Motion for Preliminary Injunction.” See id. at 1287. The court denied the 

motion, “find[ing] no clear error in the prior ruling, nor any other basis warranting 

reconsideration of the issues.” Id. at 1289. This appeal followed.2

Discussion 

 “To obtain a preliminary injunction, the moving party must demonstrate: (1) a 

likelihood of success on the merits; (2) a likelihood that the movant will suffer 

irreparable harm in the absence of preliminary relief; (3) that the balance of equities 

tips in the movant’s favor; and (4) that the injunction is in the public interest.” Att’y 

Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) (quotation 

 

2

 Ciempa concedes that his opening brief does not challenge any of the district 

court’s orders concerning the provision of pork products and a Halal diet. Reply Br. 

at 6. While he does appear to raise those matters in his reply brief, “[w]e decline to 

consider arguments raised for the first time in a reply brief.” Lauck v. Campbell 

Cnty., 627 F.3d 805, 810 n.2 (10th Cir. 2010) (quotation omitted). 
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omitted). Our review of an order denying preliminary injunctive relief is only for an 

abuse of discretion. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 

2003). And in this case, our review is doubly deferential, as we are not simply 

reviewing an order denying preliminary injunctive relief; but rather, we are reviewing 

an order denying reconsideration of an order denying preliminary injunctive relief. 

See Jennings v. Rivers, 394 F.3d 850, 854 (10th Cir. 2005) (observing that orders 

denying reconsideration are reviewed for an abuse of discretion). 

 After reviewing the record and the briefs, we conclude that the district court’s 

decision was not “arbitrary, capricious, whimsical, or manifestly unreasonable” so as 

to constitute an abuse of discretion. Att’y Gen. of Okla., 565 F.3d at 776 (quotations 

omitted). Ciempa has failed to establish to any degree that the balance of hardships 

and the public interest weighed in his favor. Indeed, on appeal, Ciempa cites 

evidence that supports the district court’s decision. He notes that in 2007, a 

Department chaplain authored an email stating that NGE adherents would not be 

given time on a religious-services schedule because of the group’s racist beliefs. 

Such beliefs are relevant to whether the requested injunction might pose a “potential 

risk to prison safety.” R. at 642. Clearly, jeopardizing prison safety constitutes 

injury to the Department and is adverse to the public interest - the third and fourth 

preliminary-injunction factors. Ciempa has not shown that the district court 
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improperly weighed these factors, let alone that the court abused its discretion in 

denying reconsideration.3

Conclusion

 The judgment of the district court is AFFIRMED. 

 Entered for the Court 

 Bobby R. Baldock 

 Circuit Judge 

 

3

 Appellees state in their response brief that the Department has begun allowing 

Ciempa time in the prison chapel. Consequently, at least part of this appeal may be 

moot, in addition to meritless.