IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02656-MSK-MJW

BRIAN M. GROSS,

Plaintiff,

v.

TOM CLEMENTS, 

JOHN DAVIS,

ELLEN BLACKMORE,

MARY CARTER, 

THOMAS FISHER,

MARY BETH KALYMER,

KERRY BARONI,

MARCIA MORTIN (a/k/a DENISE MORTIN),

ANTHONY DECESARO, and

STEVE M. VICALVI,

Defendants.

RECOMMENDATION ON

PLAINTIFF’S MOTION FOR TEMPORARY INJUNCTION FOR MEDICAL RELIEF

(Docket No. 70)

MICHAEL J. WATANABE

United States Magistrate Judge

This case was referred to this court pursuant to an Order Referring Case issued

by Judge Marcia S. Krieger on February 17, 2012. (Docket No. 24).

Now before the court for a report and recommendation is the pro se incarcerated

plaintiff’s Motion for Temporary Injunction for Medical Relief (Docket No. 70), dated 

May 21, 2012, in which the plaintiff states:

The Pettitoiner [sic], Brian M. Gross, is currently being house [sic]

in the Pueblo County Dentention [sic] Center, in Pueblo County Colorado. 

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The Pettitioner [sic] is a CDOC client, with a Colorado Division of Parole

hold. The Pettitioner entered the PCDC on 05/13/2012. The pettitioner

[sic] is a medical 4 in CDOC with chronich [sic] medical conditions that the

CDOC tried to care for but failed. PCDC did not give the Petitioner his

insulin for three days, and is still giving the incorrect amount of insulin. 

PCDC is not giving the Pettitioner [sic] any of his prescribed medications. 

To date the doctors at PCDC have not seen the Petitioner.

WHEREFORE, the Pettitioner [sic] prays that this Court will grant a

temporary injunction, allowing the Pettitioner’s private doctors, and

Parkview Medical Center take over the medical care of the Pettitioner [sic]. 

The Pettitioner [sic] is kept in constant pain. And is still malabsorbing

nutrition. The Pettitioner [sic] is in fear for his life.

(Docket No. 70). Defendants have filed a timely response. (Docket No. 73). The court

has carefully considered the motion (Docket No. 70), the response (Docket No. 73), and

applicable Federal Rules of Civil Procedure and case law. In addition, the court has

taken judicial notice of the court file. The court now being fully informed makes the

following findings, conclusions of law, and recommendation that the motion be denied.

Previously, plaintiff filed similar motions for immediate temporary injunctions for

medical services on October 12, 2011 (Docket No. 4), January 26, 2012 (Docket No.

15), and March 2, 2012 (Docket No. 30). The first motion was denied as moot when the

Prisoner Complaint and action were dismissed without prejudice for failing to pay an

initial partial filing fee. (Docket No. 9). That dismissal Order, however, was

subsequently vacated on December 20, 2011 (Docket No. 11), after it was discovered

that plaintiff had paid the initial partial filing fee, but it had been mistakenly applied to a

previous case filed by the plaintiff which had been closed. The second motion was

denied by Judge Lewis T. Babcock on February 8, 2012 (Docket No. 17). Judge

Babcock found that the plaintiff had not provided “any supporting factual allegations with

regard to his medical and dental needs; instead, the motion is bare and conclusory.” 

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(Docket No. 17 at 1-2). In addition, the court found that plaintiff “does not demonstrate

a substantial likelihood of prevailing on the merits, that he will suffer irreparable injury if

no preliminary injunction is issued, that his threatened injuries outweigh whatever

damage the proposed injunction may cause the opposing party, or that a preliminary

injunction would not be adverse to the public interest. Therefore, the motion for

injunctive relief will be denied.” (Docket No. 17 at 3). Most recently, the third motion

was denied by Judge Krieger in a text entry on April 12, 2012, which stated in pertinent

part:

Although deemed to be an Objection to the Recommendation, the Plaintiff

identifies no specific error in any finding or conclusion made by the

Magistrate Judge. Instead, he asserts that he is continuing to receive what

he believes to be inadequate medical and dental care, giving examples

more contemporaneous than those previously submitted. The assertions

are conclusory, unsupported by any extrinsic evidence or any

demonstration that immediate injury will result the requested injunction is

not imposed. Indeed, the Plaintiff does not dispute that he is scheduled to

be released from CDOC custody within the next ten days, after which he

will be able to obtain medical and dental care from practitioners of his own

choosing. Having considered the matter de novo and finding no error in

fact or law, IT IS ORDERED that the Recommendation is ADOPTED, the

Response (deemed to be an objection) is OVERRULED, and for the

reasons stated in the Recommendation, Plaintiffs Motion for Immediate

Temporary Injunction 30 is DENIED.

(Docket No. 52).

Since the plaintiff is not an attorney, his pleading and other papers have

been construed liberally and held to a less stringent standard than formal

pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Therefore, “if the

court can reasonably read the pleadings to state a claim on which the plaintiff

could prevail, it should do so despite the plaintiff’s failure to cite proper authority,

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his confusion of various legal theories, his poor syntax and sentence construction,

or his unfamiliarity with pleading requirements. . . . At the same time, . . . it is [not]

the proper function of the district court to assume the role of advocate for the pro

se litigant.” Id.

“A temporary restraining order [“TRO”] or preliminary injunction is extraordinary

relief.” Statera, Inc. v. Hendrickson, 2009 WL 2169235, *1 (D. Colo. July 17, 2009). In

order to obtain a injunctive relief, plaintiff must demonstrate the following: (1) a

substantial likelihood of success on the merits of the case, (2) irreparable injury to the

plaintiff if the preliminary injunction is denied, (3) the threatened injury to the plaintiff

outweighs the injury to the other party under the preliminary injunction, and (4) the

injunction is not adverse to the public interest. Salt Lake Tribune Pub. Co., LLC v. AT &

T Corp., 320 F.3d 1081, 1099 (10th Cir. 2003). In addition, the right to relief must be

“clear and unequivocal” because “a preliminary injunction is an extraordinary remedy.” 

Id. Furthermore, in cases such as this, where the relief requested would (1) disturb the

status quo, (2) be mandatory as opposed to prohibitory, or (3) provide the plaintiff with

substantially all the relief he may recover after a full trial on the merits, an even heavier

burden is placed upon the plaintiff, and he must show that the four factors listed above

weigh “heavily and compellingly in his favor.” Kikumura v. Hurley, 242 F.3d 950, 955

(10th Cir. 2001). “[T]he party seeking injunctive relief must show that the injury

complained of is of such imminence that there is a clear and present need for

equitable relief to prevent irreparable harm.” Heideman v. South Salt Lake City,

348 F.3d 1182, 1189 (10th Cir. 2003). 

In order to state an Eighth Amendment claim, “‘a prisoner must allege acts or

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omissions sufficiently harmful to evidence deliberate indifference to serious medical

needs.’” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir.) (quoting Estelle v. Gamble, 429

U.S. 97, 106 (1976)), cert. denied, 549 U.S. 856 (2006). “A prison official’s deliberate

indifference to an inmate’s serious medical needs is a violation of the Eighth

Amendment’s prohibition against cruel and unusual punishment. . . . The test for

constitutional liability of prison officials ‘involves both an objective and a subjective

component.’” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). As the Tenth Circuit has

explained:

to properly set forth an Eighth Amendment claim on which relief may be

granted, [the prisoner] must set forth facts demonstrating [1] that his

alleged medical need . . . was sufficiently serious to meet the objective

element of the deliberate indifference test, and [2] that the Defendants’

delay in meeting that need caused him substantial harm. Finally, to meet

the subjective element of the deliberate indifference test, [the prisoner]

must allege facts supporting an inference [3] that Defendants knew about

and disregarded a substantial risk of harm to his health or safety.

Oxendine v. Kaplan, 241 F.3d 1272, 1276-77 (10th Cir. 2001) (quotations omitted). 

“A medical need is serious if it has been diagnosed by a doctor or is one that is so

obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.” Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (citation and

internal quotation omitted). 

In the instant motion, plaintiff apparently seeks an order from this court directing

unnamed officials or employees at the Pueblo County Detention Center (“PCDC”) to

have him seen and treated by his private doctors and at Parkview Medical Center. The

court, however, takes judicial notice of the fact that the Pueblo County Detention Facility

is operated by the Pueblo County Sheriff’s Department, not the Colorado Department of

Corrections. Furthermore, according to the Sheriff Department’s website, the inmates

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housed at the PCDC “receive professional medical treatment from another private

contractor, Correctional Healthcare Management.” 

Plaintiff commenced this action when he was incarcerated at the Buena Vista

Correctional Facility. His § 1983 action is based upon allegations concerning the

medical treatment he received at that facility. He was subsequently released on parole,

but now he apparently is detained at the PCDC. None of the named defendants appear

to be part of that Sheriff’s Office or Correctional Healthcare Management and thus have

no control over the plaintiff’s current medical care. This court thus agrees with the

defendants that plaintiff’s motion for injunctive relief should be denied. See West v.

Denver County Jail, 2008 WL 732600, at *6 (D. Colo. Mar. 18, 2008) (“Plaintiff’s motion

for Preliminary Injunction must fail because the named defendants lack the authority to

provide the relief he desires . . . . [A]s the CDOC and its related offices are not parties to

this lawsuit, Plaintiff is not able to obtain injunctive relief in the instant action.”) (citing

Fed. R. Civ. P. 65(d)) (“Every order granting an injunction . . . is binding only upon the

parties to the action . . . .”).

WHEREFORE, for the foregoing reasons, it is hereby

RECOMMENDED that the plaintiff’s Motion for Temporary Injunction for Medical

Relief (Docket No. 70) be denied.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),

the parties have fourteen (14) days after service of this recommendation to serve

and file specific written objections to the above recommendation with the District

Judge assigned to the case. A party may respond to another party’s objections

within fourteen (14) days after being served with a copy. The District Judge need

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not consider frivolous, conclusive, or general objections. A party’s failure to file

and serve such written, specific objections waives de novo review of the

recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53

(1985), and also waives appellate review of both factual and legal questions. 

Makin v. Colorado Dep’t of Corrections, 183 F.3d 1205, 1210 (10th Cir. 1999); Talley

v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

Date: June 8, 2012 s/ Michael J. Watanabe 

Denver, Colorado Michael J. Watanabe

United States Magistrate Judge

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