Center v. Lampert

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 15, 2018
_________________________________
Elisabeth A. Shumaker
WILLIS A. CENTER, SR., Clerk of Court

Plaintiff-Appellant,

v. No. 17-8050
(D.C. No. 1:17-CV-00096-ABJ)
ROBERT O. LAMPERT, Director, (D. Wyo.)
Wyoming Department of
Corrections, in his individual and
official capacities; CARL
VOIGTSBERGER, Wyoming
Department of Corrections
Classification and Housing Manager
in his individual and official
capacities; KAYLA UPDAHL,
Wyoming Department of Corrections
Policy and Planning Manager in her
individual and official capacities;
EDDIE WILSON, Wyoming
Department of Corrections State
Penitentiary Warden in his
individual and official capacities;
MICHAEL PACHECO, Wyoming
Department of Corrections State
Penitentiary Warden in his
individual and official capacities;
JANEL THAYER, Wyoming
Department of Corrections Housing
Manager in her individual and
official capacities; DEPUTY
WARDEN HOLTZ, Wyoming
Department of Corrections State
Penitentiary Deputy Warden in his
individual and official capacities;
GABBY WOODS, Wyoming
Department of Corrections State
Penitentiary Unit Manager in her
individual and official capacities;
DARCY MCFARRIN, Wyoming
Department of Corrections State
Penitentiary Unit Manager in her
individual and official capacities;
VICKY SMITH, Wyoming
Department of Corrections State
Penitentiary Unit Manager in her
individual and official capacities;
HEATHER SPEICER, Wyoming
Department of Corrections State
Penitentiary Education Department
Employee in her individual and
official capacities; JENNA
RAMILLER, Wyoming Department
of Corrections State Penitentiary
Law Librarian in her individual and
official capacities; MAJOR
REMACLE, Wyoming Department
of Corrections State Penitentiary
Security Major in his individual and
official capacities; LIEUTENANT
KAHN, Wyoming Department of
Corrections State Penitentiary
Lieutenant in his individual and
official capacities; CAPTAIN
JACOBS, Wyoming Department of
Corrections State Penitentiary
Captain in his individual and
official capacities; K. BARKES, J.
WADE, VIAU THOMPSON,
OFFICER GOODMAN, OFFICER P.
BROWN, OFFICER J. BROWN,
OFFICER MAYNARD, D.
RAMILLER, CORRECTIONAL
OFFICER SABO, CORRECTIONAL
OFFICER JOHNSON, Wyoming
Department of Corrections State
Penitentiary Correctional Officers in
their individual and official
capacities; CAPTAIN HOEGLIN,
CAPTAIN RAPP, Wyoming
Department of Corrections State
Penitentiary Captains in their

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individual and official capacities;
PROPERTY OFFICER ROGERS,
PROPERTY OFFICER WEARRING,
Wyoming Department of Corrections
State Penitentiary Property Officers
in their individual and official
capacities; CASEWORKER
HOEGLIN, Wyoming Department of
Corrections State Penitentiary
Caseworker in his/her individual
and official capacities;
CORRECTIONAL OFFICER
DEDRICK, CORRECTIONAL
OFFICER DANDY, Wyoming
Department of Corrections State
Penitentiary Correctional Officers in
their individual and official
capacities,

Defendants-Appellees.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.
_________________________________

This appeal is brought pro se by Mr. Willis Center, who sued under

42 U.S.C. § 1983. His appeal grew out of the denial of his motions for

*
Oral argument would not be helpful in this appeal. As a result, we
are deciding the appeal based on Mr. Center’s briefing. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).

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  a temporary restraining order and a preliminary injunction and

 a motion to reconsider those rulings.

In his motions for a temporary restraining order and a preliminary

injunction, he sought a prohibition against

 his placement in disciplinary segregation,

 the confiscation of his legal property,

 the interference with his written communications with
attorneys, and

 the presence of identified staff members within a specified
distance.

In addition, Mr. Center sought the appointment of a court advocate. As an

alternative to all of these requests, he sought an order requiring a transfer

to another facility. The district court declined to grant a temporary

restraining order or preliminary injunction and later declined to reconsider

these rulings.

I. Temporary Restraining Order

We lack jurisdiction over the denial of a temporary restraining order

and refuse to reconsider this denial. See Tooele Cty. v. United States, 820

F.3d 1183, 1186 (10th Cir. 2016). Thus, we dismiss the appeal regarding

this part of the ruling.

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II. Preliminary Injunction and Reconsideration

We affirm the denials of the preliminary injunction and the motion to

reconsider this denial.

A. Standard of Review

For our review of the denial of a preliminary injunction or a motion

to reconsider this denial, we apply the abuse-of-discretion standard. See

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

2007) (preliminary injunction); Walters v. Wal-Mart Stores, Inc., 703 F.3d

1167, 1172 (10th Cir. 2013) (motion to reconsider). A district court does

not abuse its discretion unless it “‘commits an error of law or makes

clearly erroneous factual findings.’” Gen. Motors, 500 F.3d at 1226

(quoting Wyandotte Nation v. Sebelius, 443 F.3d 1247, 1252 (10th Cir.

2006)). A preliminary injunction involves an extraordinary remedy, which

is available only when the movant’s right to relief is clear and

unequivocal. Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th

Cir. 2003).

B. Mr. Center’s Burden in District Court

Our precedents require Mr. Center to satisfy four elements: “(1) a

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

injury to the movant if the preliminary injunction is denied; (3) the

threatened injury to the movant outweighs the injury to the other party

under the preliminary injunction; and (4) the injunction is not adverse to

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the public interest.” Salt Lake Tribune Publ’g Co. v. AT & T Corp., 320

F.3d 1081, 1099 (10th Cir. 2003) (internal quotation marks omitted).

C. Requests for Prohibitive Relief

In part, Mr. Center sought an order prohibiting certain conduct.

1. Placement in Disciplinary Segregation and Confiscation of
Legal Property

Mr. Center requested a preliminary injunction against placement in

disciplinary segregation and confiscation of his legal property. 1 For these

requests, however, the district court enjoyed discretion to conclude that

Mr. Center had failed to satisfy any of the elements of a preliminary

injunction, and Mr. Center has not identified any manner in which the

court erred in this part of the ruling. See Fisher v. Okla. Dep’t of Corr.,

213 F. App’x 704, 709 (10th Cir. 2007) (unpublished) (upholding the

denial of a preliminary injunction against seizure of legal materials based

on the inmate plaintiffs’ failure to satisfy any of the four requirements of a

preliminary injunction). Thus, we affirm the denial of relief involving

placement in disciplinary segregation and confiscation of legal property.

1
Before the court ruled on the motion to reconsider, Mr. Center filed
an affidavit acknowledging his release from segregation and the return of
all of his legal property.

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 2. Communications with a Jailhouse Lawyer

In addition, Mr. Center sought an order preventing disturbance of his

communications with a jailhouse lawyer. 2 For this request, Mr. Center

provided only a single allegation in the complaint: “They even denied me

access to a jailhouse lawyer through the mail that has helped me before

with court filings.” R. at 34.

Prison officials enjoy a legitimate penological interest in restricting

communications between inmates, even when the ostensible purpose is to

obtain advice from jailhouse lawyers. See Shaw v. Murphy, 532 U.S. 223,

231 (2001); Johnson v. Avery, 393 U.S. 483, 489-90 (1969). Thus, the

district court did not abuse its discretion in concluding that Mr. Center had

failed to justify a preliminary injunction against restrictions on

communications with fellow inmates for the purpose of getting legal

advice.

3. Communications with an Attorney

Mr. Center also referred to his difficulty in communicating with an

attorney. In the complaint, he alleged:

Even then they just recently denied me postage to communicate
with Ms. Urbin who works also at the Gillette, WY Public

2
In seeking a preliminary injunction, Mr. Center did not specifically
ask for this prohibition. Instead, he focused on impediments to his
communication with an attorney. But his complaint does raise the issue and
he incorporated the complaint in his motion. For the sake of argument, we
may assume that the motion would encompass his communications with a
jailhouse lawyer.
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 defenders office. I sent her a letter the week they took Jayson
away and it returned 5/30/16 saying postage is still due. . . .

I do not have access to the postage meter that places the stamp
on envelopes and they are the ones who do this. They will not
allow his mail to go out to Ms. Urbin or allow her phone
number to be added to his account.

R. at 34-35. 3 Again, however, the district court enjoyed discretion to

conclude that Mr. Center had failed to satisfy the elements of a preliminary

injunction; and Mr. Center identifies no error in this conclusion.

4. Separation from Designated Officials

Mr. Center also requested a preliminary injunction that would

prevent certain prison officials from being within a specified distance of

him. Again, however, Mr. Center has not supported the existence of any of

the equitable elements for a preliminary injunction of this sort. As a result,

we conclude that the district court had discretion to deny this part of the

motion. See p. 7, below (citing Lopez v. Roark, 560 F. App’x 809, 812

(10th Cir. 2014) (unpublished)).

D. Requests for Affirmative Relief

Mr. Center also sought affirmative action in his motion for a

preliminary injunction. A preliminary injunction requiring affirmative

action “is an extraordinary remedy and is generally disfavored.” Little v.

3
When seeking reconsideration, Mr. Center acknowledged that he had
ultimately been allowed to add Ms. Urbin’s telephone number to his
contact list. R. at 91. Mr. Center then stated that he was unable to call Ms.
Urbin during regular office hours because he could not afford to purchase
telephone privileges. Id.
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Jones, 607 F.3d 1245, 1251 (10th Cir. 2010) (internal quotation marks

omitted). For a preliminary injunction requiring affirmative action, Mr.

Center had a heightened burden on the four elements. See id. The district

court did not abuse its discretion in concluding that Mr. Center had failed

to satisfy his burden on these aspects of the motion.

1. Appointment of a Court Advocate

In part, Mr. Center requested appointment of a court advocate to

oversee prison operations. The district court pointed out that Mr. Center

had not cited any support for the court’s authority to appoint a court

advocate. See Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003) (stating

that the Prison Litigation Reform Act “has substantially limited the

capacity of federal courts to appoint special masters to oversee prison

conditions”). In light of the absence of support for this request, we

conclude that this part of the ruling fell within the district court’s

discretion.

2. Transfer

In the alternative, Mr. Center sought a transfer. He is currently

housed in a state prison. But in the event of a denial of his other requests,

he sought transfer to a federal holding facility in light of the parole

board’s alleged willingness to grant parole and allow him to go into federal

custody pursuant to a detainer.

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 For this request, Mr. Center did not refer to any of the elements of a

preliminary injunction or identify any legal basis to order transfer from

state custody to federal custody. Against this backdrop, the district court

acted within its discretion to deny this part of the request. See Lopez v.

Roark, 560 F. App’x 809, 812 (10th Cir. 2014) (unpublished) (upholding

the denial of a preliminary injunction for transfer to another prison based

on the inmate plaintiff’s failure to even mention the third or fourth

elements for a preliminary injunction, much less satisfy his heightened

burden on these elements).

* * *

Accordingly, we dismiss the appeal with respect to the denial of a

temporary restraining order. But we affirm on the denial of Mr. Center’s

motions for a preliminary injunction and reconsideration.

III. Leave to Proceed in Forma Pauperis

We grant Mr. Center’s motion for leave to proceed in forma

pauperis. But we remind Mr. Center of his obligation to continue making

partial payments until the entire filing fee has been paid in full.

Entered for the Court

Robert E. Bacharach
Circuit Judge

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