*

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is

therefore 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

December 17, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSE VEGA,

Plaintiff-Appellant, No. 07-1353

v. District of Colorado

R. WILEY, Warden of ADX;

CASSANEADER, Captain, of ADX;

CRAIG, Lt., of ADX; COLLINS,

Officer; DAVIS, Officer; GOFF,

Officer; OFFICER HOLCOMB;

JARBON, Officer, of ADX; B.JETT,

Officer, of ADX; POTTER, Officer of

ADX; MADONNA, Officer, of ADX;

SIDESINGER, Officer of ADX

officers unknown and or unidentified,

employed at ADX, 

Defendants-Appellees.

(D.C. No. 07-CV-01356-ZLW-BNB)

ORDER AND JUDGMENT*

Before BRISCOE, McKAY and McCONNELL, Circuit Judges.
1

 On account of Mr. Vega’s pro se status, we construe his submissions

liberally. See, e.g., de Silva v. Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007);

Roman-Nose v. N.M. Dep’t of Human Servs., 967 F.2d 435, 436–37 (10th Cir.

1992). We cannot, however, bend the substantive law in his favor.

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I. INTRODUCTION

Plaintiff Jose Vega is serving a life sentence at the United States

Penitentiary Administrative Maximum Facility (ADX) in Florence, Colorado. In

this action against Warden Ron Wiley and others, Mr. Vega alleges that officials

at the prison are serving him food tainted with tobacco, pepper spray, and feces;

and that he is being illegally exposed to carcinogenic tobacco smoke. In the

district court, he filed three motions requesting injunctions and a writ of

mandamus preventing prison officials from continuing to taint his food or from

retaliating against him, and ordering them to implement procedures for the

sanitary handling of his food. The district court denied the motions, and Mr.

Vega appealed. After the district court further denied his motion to prosecute this

appeal in forma pauperis, Mr. Vega expanded the appeal to challenge that

determination as well. We affirm.1
2

 Appellant also requested a writ of mandamus, which, in light of Fed. R.

Civ. P. 81(b), we interpret as a request for an injunction in the nature of

mandamus. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1235, 1236

(10th Cir. 2005).

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II. DISCUSSION

A. Denial of Injunctions2

We review a district court’s denial of a preliminary injunction for abuse of

discretion, which occurs where the court “commits a legal error or relies on

clearly erroneous factual findings, or where there is no rational basis in the

evidence for its ruling.” Davis v. Mineta, 302 F.3d 1104, 1110–11 (10th Cir.

2002) (internal citation omitted). The standard for issuance of a preliminary

injunction is well-established:

To obtain a preliminary injunction, the movant must show: (1) a

substantial likelihood of success on the merits; (2) irreparable harm

to the movant if the injunction is denied; (3) [that] the threatened

injury outweighs the harm that the preliminary injunction may cause

the opposing party; and (4) [that] the injunction, if issued, will not

adversely affect the public interest.

Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007);

accord Country Kids ’N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1283 (10th Cir.

1996). Mandatory injunctions and injunctions that would disturb, rather than

preserve the status quo, are “specifically disfavored”; a party seeking such an

injunction bears a “heightened burden” to show that “the exigencies of the case

support the granting of a remedy that is extraordinary even in the normal course.” 

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975
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(10th Cir. 2004) (en banc) (per curiam), aff’d, 546 U.S. 418 (2006). “Because a

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

and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256

(10th Cir. 2003).

Here, the district court denied injunctive relief on the ground that “Mr.

Vega fail[ed] to show that he will suffer irreparable injury if no preliminary

injunction is entered in this action.” R. doc. 34, at 2. Because a showing of an

irreparable injury is a necessary condition for the issuance of a preliminary

injunction, the court held, the absence of this factor required denial. Id. We

agree. “To constitute irreparable harm, an injury must be certain, great, actual

and not theoretical.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th

Cir. 2003) (internal quotation marks omitted). Therefore, to satisfy this factor of

the preliminary injunction test, a movant must establish both that harm will occur,

and that, when it does, such harm will be irreparable. “‘[B]ecause a showing of

probable irreparable harm is the single most important prerequisite for the

issuance of a preliminary injunction, the moving party must first demonstrate that

such injury is likely before the other requirements for the issuance of an

injunction will be considered.’” Dominion Video Satellite, Inc. v. Echostar

Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (quoting Reuters Ltd. v.

United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir. 1990)). Assuming arguendo
3

 Mr. Vega’s appellate brief refers to a Denver Post article reporting an

outbreak of e. coli in a Colorado jail. Although this article is not in the record on

appeal, we have nevertheless reviewed it. We are satisfied that an e. coli

epidemic of unknown provenance in a county jail has no relevance to the

likelihood of deliberate food tainting in a federal prison—not least because Mr.

Vega has not alleged that he, or any other inmate at ADX Florence, has been

infected with e. coli. See Ann Schrader, E. Coli Sickens Nearly 70 Inmates at

Jeffco Jail, Denver Post, July 12, 2007, at B4.

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that Mr. Vega has met his burden to show that injury would be irreparable, withal

he has not shown that injury is likely to occur at all.

The evidence Mr. Vega has adduced amounts to a verified complaint,

several motions attested under penalty of perjury (whose factual portions we

might construe as affidavits), two pages of the ADX Florence inmate handbook, a

letter from Mr. Vega to defendant Wiley, and a letter from Mr. Vega to thenAttorney General Alberto Gonzales. It was not an abuse of the district court’s

discretion to hold that this evidence is insufficient to meet Mr. Vega’s burden.

Crucially, Mr. Vega’s say-so is uncorroborated by independent evidence.3

And although corroboration is not required as a matter of law, Mr. Vega’s

credibility in this matter is low. His claims of food tainting include an allegation

that prison officials injected chewing-tobacco spittle into a sealed Little Debbie

cupcake package, and that his meals were deliberately contaminated with the

urine and stool samples of other prisoners. He has also requested to be tested for

the ebola virus, to which he believes he has been exposed through his food. Mr.

Vega further states, “[S]taff at the place of my confinement had used a general
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anesthesia—while I had been locked in my assigned cell & already asleep, came

in my cell with accompanying inmate(s), and violated, supervised, or allowed my

bodily integrity to be violated . . . .” R. doc. 20, at 2. In his brief, he adds the

claim that prison officials have used “subliminal message(s) . . . for the purpose

of producing suicidal ideations” in him. Aplt’s Br. 6 n.3.

Occasionally, something stranger than fiction turns out to be the truth. 

Courts are entitled, however, to require evidence—and the stranger the claim, the

more credible the evidence should be to substantiate it, particularly when an

extraordinary remedy like a preliminary injunction is sought. Here, Mr. Vega’s

allegations are facially unlikely. The conceivably possible claims (like tainted

food) become less likely the more they are juxtaposed with absurd claims (like

suicide-inducing subliminal messages). Given the totality of his allegations, and

the complete absence of corroborating evidence for any of them, the district court

was right to hold that Mr. Vega had not satisfactorily shown that food tainting—

or any other injury—is likely to occur.

Consequently, denial of a preliminary injunction against tainting Mr.

Vega’s food was proper. Mr. Vega’s requests for such relief as injunctions

against “misconduct” are too vague to warrant consideration. Finally, his request

for a mandatory injunction—a specifically disfavored type of preliminary

injunction—to require inter alia the implementation of safe food-handling
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procedures and the installation of a camera in prison food-preparation areas, was

properly denied as unsupported for the reasons described above.

B. Denial of In Forma Pauperis Application

The district court denied Mr. Vega’s motion for leave to proceed in forma

pauperis on appeal, certifying under 28 U.S.C. § 1915(a)(3) that this appeal was

not taken in good faith. For the reasons discussed in the previous section, Mr.

Vega has “not shown the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal,” Caravalho v. Pugh, 177

F.3d 1177, 1179 (10th Cir. 1999), and consequently we affirm.

III. CONCLUSION

The judgment of the United States District Court for the District of

Colorado is AFFIRMED. Mr. Vega’s motion for appointment of counsel is

DENIED. His motion before this Court for leave to proceed in forma pauperis is

DENIED. His “Motion Showing Cause Why He Is Unable To [Pay?] Initial

Partial Filing Fee,” which we have construed as a motion for reconsideration of

our September 26, 2007 order, assessing partial payments toward the filing fees

for this appeal, is DENIED. Mr. Vega’s “Motion Requesting Waiver of Months’

Scheduled PLRA Fee” is DENIED. IT IS ORDERED that Appellant’s custodian

shall continue making payments as provided under our September 26, 2007 order,

until the entire sum of $455.00 has been paid to the clerk of the district court. 
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The Office of the United States Attorney for the District of Colorado is directed

to serve a copy of this order on appellant’s custodian forthwith.

Entered for the Court,

Michael W. McConnell

Circuit Judge