IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Raymond P. Moore

Civil case no. 11-cv-02381-RM-KLM

SALVADOR MAGLUTA,

Plaintiff,

v.

UNITED STATES FEDERAL BUREAU OF PRISONS,

AMBER NELSON, Acting Regional Director of the North Central Region,

CHARLES DANIELS, Warden at USP Florence,

MONICA S. WETZEL, Former Warden at FDC Miami,

LOUIS MILUSNIC, Assistant Warden at USP Florence,

JOHNSON (FNU), Assistant Warden at USP Florence,

G.T. KAPUSTA, Former Assistant Warden at FDC Miami,

BANUELOS (FNU), Lieutenant at USP Florence,

T. JAVERNICK, Case Manager Coordinator (CMC) at Florence Federal Complex,

ANDY FENLON, Counselor at ADX Florence,

MASSEY (FNU), Officer at USP Florence,

DUVAL (FNU), Officer at USP Florence,

STEGAL (FNU), Officer at USP Florence, and

JOHN DOES 1-9 TO BE IDENTIFIED LATER,

Defendants.

______________________________________________________________________________

ORDER DENYING 

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 

AND TEMPORARY RESTRAINING ORDER (ECF NO. 101)

______________________________________________________________________________

THIS MATTER comes before the Court on Plaintiff Salvador Magluta’s (“Plaintiff”)

Motion for Preliminary Injunction and Temporary Restraining Order (“Motion”) (ECF No. 101). 

The Court afforded Plaintiff an opportunity to supplement his Motion but he declined to do so. 

(ECF No. 118.) Upon consideration of the Motion and other relevant papers, the matters 

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presented at the status conference held on August 7, 2013, and the applicable legal standards, the 

Court DENIES the Motion as set forth below.

I. BACKGROUND

Plaintiff’s Second Amended Complaint (“Complaint”) was accepted for filing on March 

26, 2012. Among other things, Plaintiff alleges Defendants improperly interfered with Plaintiff’s 

legal visits with his Miami, Florida counsel (“Miami Counsel”), and staff from counsel’s firm, in 

retaliation for legal action against, or threats of legal action against, Federal prison officials. All 

of the interference complained of occurred prior to March 26, 2012. Plaintiff’s claims are based 

on: (1) Denial of Fifth Amendment Right to Due Process; (2) Retaliation; (3) Breach of Contract; 

(4) Conspiracy; (5) Privacy; (6) Privacy Act; (7) Cruel and Unusual Punishment; and (8) 

Retaliatory Transfer. Among other things, Plaintiff seeks an injunction to direct Defendants to 

cease their alleged retaliatory conduct. 

In March 2013, smuggled cell (smart) phones were discovered in Plaintiff’s cell in Terre 

Haute, Indiana. A Federal Bureau of Investigation (“FBI”) inquiry ensued and is ongoing. That 

investigation includes determining whether Miami Counsel had any involvement with the 

smuggled phones. As a result of such investigation, the Bureau of Prison (“BOP”) restricted 

Miami Counsel’s in-person legal visits with Plaintiff. After Miami Counsel waited more than a 

month, was advised the investigation was still ongoing, and received no decision as to when he 

would be able to have legal visits with Plaintiff, the Motion was filed. 

The Motion was set for hearing on April 15, 2013. On April 9, 2013, however, the 

parties filed a joint motion requesting Judge Brimmer, whom the case was then before, to stay 

the case for 60 days and to vacate the April 15, 2013 hearing. By Minute Order dated April 10, 

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2013, Judge Brimmer granted the joint motion, vacated the April 15, 2013 hearing and an April 

24, 2013 scheduling conference, and stayed the case until June 10, 2013. During the pendency 

of the stay, Colorado counsel entered an appearance on behalf of Plaintiff. 

After the expiration of the stay, the Court set the Motion for a hearing on August 7, 2013,

but subsequently converted that hearing to a status conference. Miami Counsel (and another 

Florida lawyer who accompanied him and who professed to represent Plaintiff in some unrelated 

Florida litigation) appeared on Plaintiff’s behalf at the status conference. Plaintiff attended the 

status conference telephonically and thereafter had a legal call with his attorneys. 

After the status conference, Colorado counsel was granted leave to withdraw. Plaintiff’s 

Motion is now fully briefed. That Motion is based on the BOP’s alleged violation of Plaintiff’s 

Sixth Amendment right to counsel, i.e., Miami Counsel, after the discovery of the smuggled cell 

phones. There are no allegations that Plaintiff has been denied access to other counsel. Indeed, 

until Colorado counsel withdrew, she was granted access to Plaintiff as was the additional 

Florida counsel who appeared at the status conference. 

A scheduling conference is set for October 15, 2013 but there is no trial date set in this 

matter.

II. ANALYSIS

A. Preliminary Injunction Standard.

A preliminary injunction is an extraordinary remedy, so the right to relief must be clear 

and unequivocal. Schrier v. University of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). A party 

seeking injunctive relief must establish four factors: (1) he will suffer irreparable harm if the 

injunction is not granted; (2) the threatened injury outweighs the harm caused to the opposing 

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party as a result of the injunction; (3) the injunction, if issued, is not adverse to the public 

interest; and (4) he has a substantial likelihood of success on the merits of the case. Id. 

The purpose of a preliminary injunction is to preserve the relative positions – the status 

quo – of the parties until a trial on the merits can be held. Id. The status quo is the “‘last 

uncontested status between the parties which preceded the controversy until the outcome of the 

final hearing.’” Id. at 1260 (quoting Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 

269 F.3d 1149, 1155 (10th Cir. 2001)). 

Where the injunction sought is prohibitory, i.e., requiring the nonmovant to stop acting in 

a manner that disturbs the status quo, the movant may be afforded relief under a lesser standard 

of proof on the likelihood-of-success-on-the-merits factor if he can show the other three 

requirements tip strongly in his favor. Oklahoma, ex rel, Okla. Tax Comm’n v. International 

Registration Plan, Inc., 455 F.3d 1107, 1112-1113 (10th Cir. 2006). Where the injunction 

sought is one of three types of disfavored injunctions, however, the modified standard is 

inapplicable and the movant must make a heightened showing to demonstrate entitlement to 

relief. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th 

Cir. 2004) (en banc), aff’d and remanded, 546 U.S. 418 (2006) (“O Centro”). The request must 

be more closely scrutinized to assure that the exigencies of the case require extraordinary interim 

relief. O Centro, supra at 975, 978-979. 

The three disfavored injunctions are: (1) preliminary injunctions that alter the status quo; 

(2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all 

the relief that it could recover at the conclusion of a full trial on the merits. Schrier v. University 

of Colo., supra at 1258-1259. Mandatory injunctions generally alter the status quo, but that is 

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not always the case. Regardless of whether they alter the status quo, they are still disfavored 

because they “‘require the nonmovant to act in a particular way, and as a result they place the 

issuing court in a position where it may have to provide ongoing supervision to assure the 

nonmovant is abiding by the injunction.’” O Centro, supra at 979 (quoting SCF ILC, Inc. v. Visa 

USA, Inc., 936 F.2d 1096, 1099 (10th Cir. 1991)). 

Plaintiff’s Motion cites to the “traditional” standard governing requests for injunctive 

relief while Defendants argue Plaintiff seeks a disfavored injunction which requires him to meet 

the heightened standard. The Court need not resolve this issue because it finds Plaintiff has not 

met his burden even assuming the traditional standard applies.

B. Substantial Likelihood of Success on the Merits of the Case.

Plaintiff asserted nine claims for relief but, as Defendants correctly argued, none of those 

claims involve the actions complained of in the Motion, namely, the BOP’s restrictions on

Miami Counsel’s legal visits (and, legal mail, as raised in Plaintiff’s Reply) after discovery of 

the smuggled cell phones. Further, even assuming, arguendo, Plaintiff’s assertions in his 

Motion could be encompassed within his visitation restrictions allegations in the Complaint, 

there is no claim alleging Sixth Amendment violations in such Complaint. Plaintiff simply

cannot establish a substantial likelihood of success on the merits of nonexistent allegations or 

claims. 

Defendants also raised other arguments against a finding in favor of Plaintiff. The Court 

agrees that Plaintiff, as a civil litigant, has no Sixth Amendment right counsel, much less to a 

particular counsel. E.g., Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006). In this 

case, until recently, Plaintiff had at least two separate attorneys representing him. The Court 

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finds, however, that Plaintiff was not required to exhaust administrative remedies under the 

Prison Litigation Reform Act. As stated, Plaintiff has made no claim based on a Sixth 

Amendment violation of the right to counsel. Nonetheless, the Court has the inherent power to 

manage its business “‘so as to achieve the orderly and expeditious disposition of cases.’”

LaFleur v. Teen Help, 342 F.3d 1145, 1149 (10th Cir. 2003) (quoting Chambers v. NASCO, Inc., 

501 U.S. 32, 43 (1991)). See also, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d

836, 841 (10th Cir. 2005). Allowing a party the ability to properly prosecute or defend a 

pending case is one of such powers, but not under the auspice of a motion for injunctive relief. 

Regardless, Plaintiff has not established a substantial likelihood of success on the merits of this 

case.

C. Irreparable Harm.

“‘To constitute irreparable harm, an injury must be certain, great, actual and not 

theoretical.’” Schrier v. University of Colo., supra at 1267 (quoting Heideman v. South Salt 

Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003)). The injury complained of must be of such 

imminence that there is a clear and present need for equitable relief to prevent irreparable harm. 

Id.

Plaintiff asserts he will suffer irreparable harm due to his inability to prepare for trial; the 

necessity for Miami Counsel to file motions for extensions of time to reply to Defendants’ 

motions; and the then pending April 24, 2013 scheduling conference. In his Reply, Plaintiff 

further argues he is prevented from litigating this case. None of such assertions support a finding 

of irreparable harm. There is no trial date, all pending motions are now fully briefed, and the 

April 24, 2013 scheduling conference has been vacated. Plaintiff’s conclusory assertion that he 

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is unable to litigate this case, without more, is insufficient. Accordingly, Plaintiff has not shown 

this factor has been met.

D. Balance of Harm.

This factor requires the threatened injury to Plaintiff to outweigh the harm caused to the 

opposing party as a result of the injunction. As stated above, Plaintiff will suffer no injury if an 

injunction is not entered. Indeed, from the papers and based on representations made by the 

parties at the August 7, 2013 status conference, it appears non-contact legal visits have been 

permitted for Plaintiff’s former Colorado counsel and other Florida counsel. 

E. Public Interest.

Plaintiff also has not shown that the injunction, if issued, is not adverse to the public 

interest. Plaintiff relies on his interest in maintaining an attorney-client relationship with Miami 

Counsel. While that is of interest to him personally, it is not of interest to the public. On the 

other hand, there is a public interest in maintaining the security of prisons. In light of the 

pending investigation concerning cell phones being smuggled to Plaintiff, an injunction which 

restricts the BOP from placing reasonable limitations on contact between Plaintiff and his 

attorneys would be adverse to the public interest. Plaintiff has acknowledged he is able to have 

“sporadic legal calls” with Miami Counsel and the parties represented during the status 

conference that non-contact legal visits have been allowed with counsel other than Miami 

Counsel. 

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III. CONCLUSION

Plaintiff has failed to establish the factors required for injunctive relief, under any 

standard. Indeed, there have essentially been no affidavits or other submissions provided by 

Plaintiff which even remotely support a restraining order or injunction, and all but one of the 

bases for the Motion is moot. As noted during the status conference, the Court questions 

whether a motion for a temporary restraining order/preliminary injunction is the appropriate 

vehicle for the relief Plaintiff seeks in light of its complete disconnect from Plaintiff’s claims. 

The Court’s denial of the Motion, however, should not be viewed as foreclosing Plaintiff from 

requesting relief, properly supported, should the circumstances warrant. Accordingly, it is 

ORDERED that Plaintiff’s Motion for Preliminary Injunction and Temporary 

Restraining Order (ECF No. 101) is hereby DENIED.

DATED this 6

th day of September, 2013.

BY THE COURT:

____________________________________

RAYMOND P. MOORE

United States District Judge

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