F I L E D
United States Court of Appeals
for the Tenth Circuit
UNITED STATES COURT OF APPEALS March 27, 1997
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
RAYMOND H. LADD,
Plaintiff-Appellant,
v. No. 95-3210
(D.C. No. 95-CV-3062)
ROBERT D. HANNIGAN, Warden; (Dist. of Kan.)
BABETTE BEACH, Librarian;
JOLENE RHINE, Assistant Librarian;
and CHERYL ALLEN,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before TACHA, BARRETT, and BALDOCK, Circuit Judges.
After examining the briefs and the 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); Tenth Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the doctrines of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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of Tenth Cir. R. 36.3.
Richard H. Ladd (Ladd), appearing pro se and having been granted leave to proceed
in forma pauperis, appeals the district court’s June 20, 1995, Order denying his motion for
a temporary restraining order and injunction and his motion to disqualify
Defendants’/Appellees’ attorney.
On February 9, 1995, Ladd, an inmate at the Hutchinson Correctional Facility in
Hutchinson, Kansas, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 alleging,
inter alia, that he was denied adequate access to the law library.1 On April 3, 1995, Ladd
filed a motion for a temporary restraining order and injunction asserting that he was being
harassed, threatened, and retaliated against for exercising his constitutional rights by filing
grievances and civil rights complaints against the Defendants/Appellees. On June 5, 1995,
Ladd filed a motion to disqualify attorney Mary Ann Shirley (Shirley) from all pending
litigation against him and from participating in the preparation of the Martinez report2
ordered by the district court on the ground that a conflict of interest exists because Shirley
was the attorney who has answered all of his grievances on behalf of Defendants/Appellees.3
1
Ladd’s allegations include rambling assertions of violations of: his
Fourteenth Amendment rights, his Due Process rights, his Eighth Amendment rights,
Equal Protection, access to the courts, and inadequate law library facilities. However, his
discussion focuses on his asserted denial of access to the law library.
2
On March 23, 1995, the district court requested that the Department of
Corrections file a report pursuant to Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).
3
Although titled as a “motion to dismiss” in actuality Ladd’s motion seeks to
disqualify Shirley from participating in the preparation of the Martinez report and not to
dismiss her from the action. Therefore, we will refer to this motion as a motion to
disqualify.
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On June 20, 1995, the district court denied Ladd’s both motions. In denying his
motion for a temporary restraining order and injunction, the district court found that he had
“failed to persuasively identify any irreparable injury he might suffer in the absence of the
relief sought, and the actions he seeks to deter involve matters within the expertise of
corrections officials, or involve hypothetical conduct that has no factual support.” (ROA,
Vol. I, Tab 19 at 1-2). In denying his motion to disqualify Shirley, the district court found
that the “conflict of interest” cited by him would not compromise the processing of his
grievances or adversely affect the preparation of the Martinez report. Id. at 2. Thereafter,
Ladd filed a notice of appeal allegedly appealing both the district court’s denial of the
temporary restraining order/preliminary injunction and his motion to disqualify Shirley.
This court has jurisdiction only over “final” decisions of the district court, 28 U.S.C.
§ 1291, and those interlocutory decisions enumerated in 28 U.S.C. § 1292. See Albright v.
UNUM Life Ins.. Co. of Am., 59 F.3d 1089, 1092 (10th Cir. 1995) (appellate court lacks
jurisdiction to consider non-final claims). Since there has been no final order in this case,
we have jurisdiction only over that portion of the order denying the preliminary injunction.
28 U.S.C. § 1292(a)(1). Ladd’s appeal of the district court’s denial of his motion to
disqualify Shirley is a non-final claim which is not sufficiently exceptional or unique to
warrant immediate appellate review nor will this issue be unreviewable if not considered by
us now. See Albright, 59 F.3d at 1094.
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We review the district court’s denial of a temporary restraining order or preliminary
injunction to determine if the district court abused its discretion, committed an error of law,
or was clearly erroneous in its preliminary factual findings. Country Kids ‘N City Slicks, Inc.
v. Sheen, 77 F.3d 1280, 1283 (10th Cir. 1996). “In order to merit a preliminary injunction
the [movant] must establish that: (1) [he] has a substantial likelihood of prevailing on the
merits; (2) [he] will suffer irreparable injury if [he] is denied the injunction; (3) [his]
threatened injury outweighs the injury that the opposing party will suffer under the
injunction; and (4) an injunction would not be adverse to the public interest.” Id. Applying
this standard, the district court found that Ladd failed to show that he would suffer
irreparable injury if the injunction was denied. After careful review of the record, we agree.
Thus, the district court did not abuse its discretion, did not commit an error of law, and was
not clearly erroneous in its preliminary factual findings.
According, we AFFIRM the district court’s denial of Ladd’s motion for a temporary
restraining order and preliminary injunction substantially for the reasons set forth in the
district court’s Order of June 20, 1995. We DISMISS Ladd’s appeal of the district court’s
denial of his motion to disqualify Shirley for lack of jurisdiction.
The mandate shall issue forthwith.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge
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