Carbajal v. Watada

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03231-REB-KLM
VICTORIA CARBAJAL,
DEAN CARBAJAL, and
LUIS LEAL,
Plaintiffs,
v.
MITCHELL R. MORISSEY, District Attorney for the Second Judicial District, in his official
and individual capacities,
JEFFREY WATTS, Investigator for the Second Judicial District, in his official and individual
capacities,
ROBERT FULLER, Investigator for the Second Judicial District, in his official and individual
capacities,
REBEKAH MELNICK, Deputy District Attorney for the Second Judicial District, in her official
and individual capacities,
LARA MULLIN, Deputy District Attorney for the Second Judicial District, in her official and
individual capacities,
MILES FLESCHE, District Administrator and Clerk for the Second Judicial District, in his
official and individual capacities,
KEITH CRISWELL, Deputy Court Clerk for the Second Judicial District, in his official and
individual capacities,
ANNE MANSFIELD, District Court Judge for the Second Judicial District, in her official and
individual capacities,
KEEFER, Deputy Sheriff for the Denver Detention Center, in his official and individual
capacities,
MICHAEL SIMPSON, Detective for the Denver Police Department, in his official and
individual capacities,
JAY LOPEZ, Detective for the Denver Police Department, in his official and individual
capacities,
RICHARD HAGAN, Detective for the Denver Police Department, in his official and
individual capacities,
CAROL DWYER, a co-conspirator with the Second Judicial District Attorney’s Office, in her
official and individual capacities,
WELLS FARGO, a corporation,
BRIAN BERARDINI, a co-conspirator with the Second Judicial District Attorney’s Office,
in his individual capacity, and
JOHN SUTHERS, Attorney General for the State of Colorado, in his official and individual
capacities,
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1 The Court is mindful that it must construe the filings of a pro se litigant liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court should not be a pro se litigant’s advocate, nor should the Court “supply
additional factual allegations to round out [a pro se litigant’s] complaint or construct a legal theory
on [her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935
F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other
litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
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Defendants.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ Petition for Federal Injunction
Pursuant to Fed. R. Civ. P. 65 [Docket No. 4; Filed December 26, 2012] (the “Motion“).
The Motion, which was filed before any Defendant entered an appearance in this matter,
has not been the subject of a Response from any Defendant. 	Pursuant to 28 U.S.C. §
636(b)(1)(A) and D.C.COLO.LCivR 72.1C., the Motion has been referred to this Court [#8].
The Court has reviewed the Motion, the entire case file, and the applicable law, and is
sufficiently advised in the premises. 	For the reasons set forth below, the Court
RECOMMENDS that the Motion [#4] be DENIED.
I. Background
Plaintiff Dean Carbajal (“Mr. Carbajal”) is a state prisoner incarcerated at the Sterling
Correctional Facility in Sterling, Colorado. 	His mother Plaintiff Victoria Carbajal (“Mrs.
Carbajal”) and Plaintiff Luis Leal (“Mr. Leal”) are non-incarcerated litigants. 	All three
Plaintiffs proceed in this matter pro se. 1 Plaintiffs bring six claims for relief: 1) fundamental
unfairness of Mr. Carbajal’s investigation, trial, and appeal in violation of the Fifth and
Fourteenth Amendments; 2) malicious prosecution in violation of the Fourth and Fourteenth
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Amendments; 3) abuse of process; 4) retaliation; 5) false arrest; and 6) unreasonable
and/or excessive force. See Am. Compl. [#33]. Plaintiffs request monetary damages and
injunctive relief “including but not limited to . . . expungement of [Mr. Carbajal’s] criminal
record . . . .” [#33-2] at 9.
In the Motion at issue, Plaintiffs recite a litany of “kitchen sink”-style allegations and
complaints, including retaliation, excessive force, malicious prosecution, false classification
as a sex offender, assaults, home invasions, manufacturing of evidence, tampering with
witnesses, destruction and suppression of exculpatory evidence and legal documents,
continual harassment of Mr. Carbajal and his “legal team,” and denial of access to the
courts. See [#4]. Mr. Carbajal primarily seeks his immediate conditional release from State
custody under supervision of the Federal District Court. [#4] at 23. Plaintiffs also requests
that: 1) all Defendants with law enforcement or prosecutorial authority be stripped of their
authority and no longer enforce the law as to Plaintiffs; 2) Mr. Carbajal’s convictions be
vacated; 3) Defendants not harass Plaintiffs or members of their “support group;” and 4)
Defendants turn over all exculpatory or material evidence to Mr. Carbajal and refrain from
destroying evidence related to any of the criminal cases against him. Id. at 27. Plaintiffs
identify numerous persons and entities whom they seek to have bound by an injunction
issued by this Court, including more than fifty individuals and entities. Id. at 28. In addition,
should the Court grant an injunction, Plaintiffs also ask that the Court waive any
requirement that they post security because “the abuses alleged here and in the four
complaints have forced [Mr. Carbajal] into a state of poverty leaving him indigent and, thus,
any financial security cannot fairly be secured.” Id. at 26.
II. Analysis
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At the outset, the Court notes that it only considers the Motion within the confines
of Plaintiffs’ requested relief as applied to the Defendants in this matter who are identified
in the Motion. 	Mr. Carbajal has been warned in other litigation he has instigated in the
District of Colorado, by the same District Judge who is assigned to the present case, that
he may not seek injunctive relief against individuals or entities not named in the operative
complaint. 	See Order Denying Motion for Temporary Restraining Order [#383; Issued
September 19, 2012] in Carbajal v. Seventh Judicial District, No. 10-cv-02862-REB-KLM.
Under circumstances very similar to the ones underlying the present Motion, the District
Judge stated:
The plaintiff, who is incarcerated in the Colorado Department of Corrections
(DOC), claims in his motion that certain individuals who are employed at the
Denver Detention Center took certain actions that are one basis for the
plaintiff’s motion. [citation omitted]. In addition, the plaintiff alleges that other
individuals, named as Sgt. Knight, Susan Jones, and Kevin Bultran or Button
also took actions that are bases for the plaintiff’s motion. [citation omitted].
None of these individuals are defendants in this case. The plaintiff seeks a
temporary restraining order directing the ‘DOC [Department of Corrections]
and the defendants’ to refrain from attacking the plaintiff. [citation omitted].
However, the Colorado Department of Corrections is not a defendant in this
case. The plaintiff may not seek injunctive relief against parties who are not
named as defendants or parties in this case.
Id. at 2. The District Judge’s ruling was reiterated by the undersigned on November 13,
2012, forty-three days before the present Motion was filed. 	See Recommendation of
United States Magistrate Judge [#414] in Carbajal v. Seventh Judicial District, No. 10-cv-
02862-REB-KLM. 	Thus, there is no question that Mr. Carbajal was well aware that
injunctive relief could not be entered against individuals or entities not named in the
operative complaint. 	Plaintiffs are therefore warned that further efforts to obtain
injunctive relief against individuals or entities not named in the operative complaint
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may subject them to sanctions. 	Accordingly, to the extent that Plaintiffs seek relief
against individuals and entities not named as Defendants in this case, the Court
recommends that the Motion be denied.
A preliminary injunction is an extraordinary remedy that should only be granted when
the moving party clearly and unequivocally demonstrates its necessity. 	See Schrier v.
Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). 	In the Tenth Circuit, a party
requesting injunctive relief must clearly establish that: (1) the party will suffer irreparable
injury unless the injunction issues; (2) the threatened injury outweighs whatever damage
the proposed injunction may cause the opposing party; (3) the injunction, if issued, would
not be adverse to the public interest; and (4) there is a substantial likelihood of success on
the merits. Id.
It is well established that “[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) (citations omitted). Moreover,
[b]ecause the limited purpose of a preliminary injunction is merely to preserve
the relative positions of the parties until a trial on the merits can be held, we
have identified the following three types of specifically disfavored preliminary
injunctions . . . (1) preliminary injunctions that alter the status quo; (2)
mandatory preliminary injunctions; and (3) preliminary injunctions that afford
the movant all the relief that [he] could recover at the conclusion of a full trial
on the merits.
Schrier, 427 F.3d at 1258-59 (citations omitted). These disfavored injunctions are “more
closely scrutinized to assure that the exigencies of the case support the granting of a
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2 The Court automatically corrects most minor spelling and grammatical errors in the
passage quoted below.
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remedy that is extraordinary even in the normal course.” Id. at 1259.
“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) (quoting
Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)). Irreparable harm is more than
“merely serious or substantial” harm. 	Id. (citation omitted). 	The party seeking the
preliminary injunction “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.” 	Id.
(citation omitted). Therefore, to demonstrate irreparable harm, Plaintiff “must establish both
that harm will occur, and that, when it does, such harm will be irreparable.” Vega v. Wiley,
259 Fed. App'x 104, 106 (10th Cir. 2007). 	Finally, an injunction is only appropriate “to
prevent existing or presently threatened injuries. One will not be granted against something
merely feared as liable to occur at some indefinite time in the future.” 	Connecticut v.
Massachusetts, 282 U.S. 660, 674 (1931).
Plaintiffs provide a lengthy explanation of the irreparable harm Mr. Carbajal will
suffer in the absence of an injunction. 	However, their explanation fails to specify the
precise, non-theoretical harm that an injunction will prevent: 2
In this particular instance, the Plaintiffs are suffering from the repeated and
intentional violation of their First, Fourth, Fifth, Sixth, Eighth and Fourteenth
Amendment Constitutional rights, and these abuses have escalated in the
zealous effort by these officials to escape liability, to include the frivolous
prosecutions of Mr. Carbajal to imprison him and destroy his ability to expose
misconduct and redress grievance, and the repeated destruction of pleadings
and 	exculpatory 	evidence, 	as 	well 	as 	evidence 	that 	inculpates 	the
Defendants. These abuses have grossly oppressed Mr. Carbajal’s ability to
expose the intentional violation of his Constitutional rights, stop these
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abuses, and obtain relief for the damages, in direct violation of his political
freedom rights. This being said, monetary damages will never be available
to compensate for these abuses, because the Defendants and numerous
state officials have conspired to prevent Mr. Carbajal’s redress of grievance
by destroying evidence and attacking Mr. Carbajal, as alleged herein and in
the Complaints. These four separate verified complaints detail the abusive
and repetitious and pervasive nature of the violation of Mr. Carbajal’s civil
rights and rise to such an extreme level that would shock even the
conscience of the most calloused hearts. 	These abuses have each been
undertaken with clearly no justification but to hurt the Plaintiffs, and because
their primary goal is to falsely imprison Mr. Carbajal and destroy his
reputation 	and 	stability, 	to 	prevent 	his 	ability 	to 	expose 	their 	official
misconduct, and obtain relief, as well as freedom, this Court is compelled to
release Mr. Carbajal under the supervision of the U.S. Marshal to maintain
the status quo and prevent further irreparable harm; without said relief, the
Defendants and State officials will continue to profit from their misconduct
and Mr. Carbajal will not be able to effectively redress grievance. 	More,
these officials have seriously endangered the welfare of Mr. Carbajal by
publicly exploiting their classification of Mr. Carbajal as a sex offender and
sexual predator in direct and clear violation of Mr. Carbajal’s Fourteenth
Amendment liberty rights, causing officials to attack Mr. Carbajal verbally and
physically repeatedly, as well as inmates and citizens. This classification is
slanderous and has no legal foundation. . . . These officials know first hand
as to the conditions of prison life and the possibility of physical harm and life
endangerment to a person with a sexual assault classification. To know of
this possible threat and to deliberately wrongfully classify an innocent person
under such basis is no less than a deliberate indifference to the life and well
being of Mr. Carbajal. More, as stated, the Defendants and numerous state
officials have frivolously prosecuted Mr. Carbajal without objective or
reasonable hope of success in direct retaliation for his assertion of his
political freedom . . . . Indeed, their numerous abuses are all well founded
on 	fallacies 	and 	corruption. 	[Three 	of 	Mr. 	Carbajal’s 	state 	criminal
prosecution 	cases] 	are 	and 	were 	prosecuted 	without 	jurisdiction 	and
irrespective of what basis is presented by the Defendants, the law is very
clear these actions are illegal and without jurisdiction and require vacation;
therefore, they are vexatious and bad faith prosecutions, apart from the gross
abuses upon which these allegations are based. These three prosecutions
prevent Mr. Carbajal from asserting his political freedom and were retaliatory
actions designed to oppress Mr. Carbajal’s ability to defend his innocence
and, more, have grossly endangered Mr. Carbajal’s welfare due to the
slanderous stigma of a “sex offender” classification in society and prison.
[Three of Mr. Carbajal’s state criminal prosecution cases] were already
dismissed, but the misconduct in these actions has sparked a plethora of
retaliatory acts and have continued to oppress Mr. Carbajal’s ability to
redress grievance and will continue to threaten Mr. Carbajal’s liberty and well
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being if an injunction is not issued enjoining the Defendants and State
officials from further harassing Mr. Carbajal. The abuses in these actions are
directly linked to this action in that the same retaliatory conduct that
encompassed this action has born these frivolous prosecutions, and also the
basis of the oppressive illegal conduct in their actions is to prevent Mr.
Carbajal’s ability to redress grievance in this action, an abuse that is grossly
repetitive and has born a pervasive state-wide bias to a level that now all
judges in each of these cases openly harass and refuse to allow Mr. Carbajal
fair access to the Courts in a grand effort to stop Mr. Carbajal from asserting
his political freedom. 	Perhaps even stating that Mr. Carbajal is suffering
irreparable harm is an understatement.
Motion [#4] at 23-24.
Before proceeding to the analysis, the Court notes that the passage quoted above
is nearly identical to one submitted by Mr. Carbajal in one of his other lawsuits. 	See
Recommendation of United States Magistrate Judge [#414] at 6-7, in Carbajal v. Seventh
Judicial District, No. 10-cv-02862-REB-KLM. In fact, the only changes are from a single
“plaintiff” to multiple “plaintiffs.” The substance of the passage is identical and does not
refer to any irreparable harm suffered by Mrs. Carbajal or Mr. Leal. 	Thus, the following
determination is the same as that made by the Court in Mr. Carbajal’s other action. See
id. at 7-9.
There is no indication in the record that Plaintiffs may suffer imminent or other harm
such that the status quo of the parties should be altered. See Bray v. QFA Royalties LLC,
486 F. Supp. 2d 1237, 1241 (D. Colo. 2007) (“The purpose of a preliminary injunction is to
preserve the relative positions of the parties until a trial on the merits can be held.”) (citing
Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). The vast majority of the injuries
Plaintiffs assert are not currently existing or presently threatened injuries, but rather
constitute past injuries, such as Mr. Carbajal’s complaints about having been subjected to
criminal prosecutions. 	See Connecticut, 282 U.S. at 674. 	To the extent Mr. Carbajal
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claims that his life and well-being are being placed in jeopardy by his sex offender
classification, the Court notes that he has not identified any actual threats nor alleged any
specific instances of threats, verbal harassment, or abuse. See McBride v. Deer, 240 F.3d
1287, 1291 n.3 (10th Cir. 2001); Riddle v. Mondragon, 83 F.3d 1197, 1205 (10th Cir. 1996);
Abeyta v. Chama Valley Indep. Sch. Dist. No. 19, 77 F.3d 1253, 1256 (10th Cir. 1996).
Plaintiff simply fails to show with any specificity how he will be irreparably harmed
by any Defendant in the absence of the requested injunctive relief. See Schrier, 427 F.3d
at 1267 (stating that “an injury must be certain, great, actual and not theoretical” to
constitute irreparable harm for the purpose of imposing a preliminary injunction (citation
omitted)). 	Given that there is no evidentiary support for Plaintiffs’ broad, conclusory
allegations other than their self-serving statements, they have failed to establish that
irreparable injury is imminent. A preliminary injunction is an “extraordinary remedy”, and,
therefore, “the right to relief must be clear and unequivocal.” 	Nova Health Sys. v.
Edmondson, 460 F.3d 1295, (10th Cir. 2006) (internal quotation marks omitted) (quoting
SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991)). 	Thus, in the
absence of a clear and unequivocal showing, the Court finds that Plaintiffs’ Motion seeking
injunctive relief should be denied. 	See Sampson v. Murray, 415 U.S. 61, 91-92 (1974)
(inferring that the failure to show irreparable injury is a sufficient ground, by itself, to deny
injunctive relief); Dominion Video Satellite, Inc., 356 F.3d at 1260 (noting that without
irreparable harm, injunctive relief is not available).
Accordingly,
IT IS HEREBY RECOMMENDED that the Motion [#4] be DENIED.
IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have
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fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. 	A party's failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 	91 	F.3d 	1411, 	1412-13 	(10th 	Cir. 	1996). 	A 	party's 	objections 	to 	this
Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).
Dated: February 28, 2013
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