FILED

United States Court of Appeals

Tenth Circuit

June 26, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES K. CONKLETON,

Plaintiff - Appellant,

v.

ARISTEDES ZAVARAS, Executive Director

of the Colorado Department of Corrections

(“CDOC”) in his official capacity; JOE

STOMMEL, in his official capacity as the

Program Administrator of the Sex Offender

Treatment and Monitoring Program

(“SOTMP”) for the CDOC; JOHN P.

McGILL, in his individual and official

capacity as a Treatment Provider for the

CDOC’s SOTMP; BONNIE CANTU, in her

individual and official capacity as a Treatment

Provider for the CDOC’s SOTMP; JAMES

LANDER, in his individual and official

capacity as a Treatment Provider for the

CDOC’s SOTMP; BURL McCULLAR, in his

official capacity as a Treatment Provider for

the CDOC’s SOTMP; ANTHONY

DeCESARO, in his official capacity as the

Step III Grievance Officer for the CDOC’s

SOTMP; AL ESTEP, in his official capacity

as the Warden of the CDOC’s Fremont Corr.

Facility; JOHN HYATT, in his official

capacity as a Correctional Officer IV for the

CDOC; ED MURO, in his individual and

official capacity as a Correctional Officer I

for the CDOC; RICHARD DeGROOT, in his 

No. 09-1076

(D. Colorado)

(D.C. No. 08-CV-02612-ZLW)
*

This order and judgment is not binding precedent except under the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.

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individual and official capacity as Case

Manager for the CDOC; THOMAS MISEL, in

his official capacity as Case Manager

Supervisor for the CDOC, also sued in his

individual capacity; ANTHONY PIPER, in his

official capacity as a Correctional Officer III

for the CDOC; RICHARD LIND, in his

official capacity as a Correctional Officer V

for the CDOC; CATHIE HOLST, in her

official capacity as Manager for the Office of

Corr. Legal Services for the CDOC,

Defendants - Appellees.

ORDER AND JUDGMENT*

Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.

After examining Appellant’s brief and the appellate record, this court 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.

In 2008, appellant James K. Conkleton, a Colorado state prisoner, filed a

complaint pursuant to 42 U.S.C. § 1983. The first claim for relief centered around
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Conkleton’s participation in a sex offender treatment program. According to

Conkleton, his due process rights were violated when he was terminated from the

program in 2003 and denied reentry in 2006. In connection with this claim,

Conkleton sought a preliminary injunction requiring Defendants to place him in a

sex offender treatment program. The district court denied Conkleton’s motion,

concluding he failed “to allege facts that demonstrate he is facing immediate and

irreparable injury.” 

This court reviews the denial of a preliminary injunction under an abuse of

discretion standard. Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222,

1226 (10th Cir. 2007). Having reviewed the record, Conkleton’s appellate brief,

and the applicable law, we can discern no reversible error by the district court. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm the district

court’s order of January 21, 2009, for substantially the reasons stated therein. 

Conkleton’s motion to proceed in forma pauperis on appeal is granted. 

Conkleton is reminded that he remains obligated to continue making partial

payments until his appellate filing fee is paid in full. See 28 U.S.C. § 1915(b). 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge