Vreeland v. Jacobson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 20-cv-02420-PAB-SKC
DELMART E.J.M. VREELAND, II,
Plaintiff,
v.
JARED POLIS, Governor of the State of Colorado, et al.,
Defendants.
ORDER
This matter comes before the Court on the Recommendation of United States
Magistrate Judge S. Kato Crews [Docket No. 76] and the Minute Order of Magistrate
Judge S. Kato Crews [Docket No. 77]. The magistrate judge recommends that the
Court deny plaintiff’s motion for injunctive relief as moot. Docket No. 76 at 1. In light of
this recommendation, the magistrate judge denied as moot plaintiff’s motion for a
hearing, motion for an opportunity to provide evidence, and motion for an order
permitting the use of his tablet computer at said hearing. Docket No. 77 at 1. Plaintiff
has filed a combined objection to the recommendation and order. Docket No. 88.
Defendants have not filed a response.
I. BACKGROUND
For the majority of this litigation, plaintiff has been a prisoner in the Colorado
Department of Corrections (“CDOC”).1 Docket No. 1 at 8, ¶ 1. Plaintiff filed this lawsuit
1 On May 20, 2021, plaintiff was transferred from CDOC to the custody of the
Wyoming Department of Corrections (“WDOC”). See Docket No. 109 at 2; Docket No.
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on August 12, 2020 due to actions by various state employees during his incarceration.
See Docket No. 1 at 8-27. The complaint asserts the following claims: (1) retaliation for
engaging in the protected conduct of filing grievances, lawsuits, and requesting that
certain CDOC employees be prosecuted; (2) Fourth Amendment violation due to the
unauthorized seizure and disclosure of plaintiff’s CDOC records; (3) conspiracy to
commit Eighth Amendment violations by transferring plaintiff to facilities where he would
be in danger, threatening plaintiff’s witnesses, and forcing plaintiff into segregated
housing for 72 days; (4) deliberate indifference to life, safety, and mental health by
placing plaintiff in a housing unit with persons who were known to be hostile to him in
violation of the First and Eighth Amendments; (5) violation of the duty to protect and
provide the equal protection of the law as set forth in the United States Constitution, the
Colorado Constitution, and Colo. Rev. Stat. § 17-1-103.8; (6) Eighth Amendment
violation due to transferring plaintiff between prisons and exposing him to COVID-19; (7)
violation of access to the courts by submitting lies to the Court and seizing plaintiff’s
legal materials; (8) Eighth Amendment violation due to failure to protect plaintiff; and (9)
breach of contract due to CDOC’s transfer of plaintiff and seizure of his tablet computer.
Id. at 28-38.
On November 30, 2020, plaintiff filed a motion for injunctive relief. Docket No.
46. Plaintiff sought the return of his tablet computer, legal books, and paper case files
which he alleges the CDOC seized on February 3, 2020 and have not returned. Id. at
19. Plaintiff argues that he is entitled to injunctive relief under Fed. R. Civ. P. 65, Colo.
112 at 2.
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R. Civ. P. 65, and Colo. R. Civ. P. 104. Id. at 12. Defendants oppose the motion.
Docket No. 64. Also on November 30, 2020, plaintiff filed a motion for a hearing,
Docket No. 48, an opportunity to provide evidence, Docket No. 47, and an order
permitting the use of his tablet at the requested hearing. Docket No. 49.
Before filing a motion for a preliminary injunction in this case, plaintiff had raised
the issue of his seized tablet and legal materials in Vreeland v. Vigil, No. 18-cv-03165-
PAB-SKC. Plaintiff filed a motion for a preliminary injunction for the return of his tablet
in Vigil. No. 18-cv-03165-PAB-SKC, Docket No. 106. On January 22, 2021, the Court
issued an order in Vigil construing the motion for a preliminary injunction as a discovery
dispute and ordering CDOC to return plaintiff’s tablet for a two month period. Id.,
Docket No. 216 at 12. The Court denied the motion to the extent it sought the return of
plaintiff’s legal books and case materials because plaintiff had not demonstrated why he
needed the material to litigate his cases or why he could not collect duplicate material.
Id. at 11.
On February 26, 2021, the magistrate judge recommended that the Court deny
the motion for a preliminary injunction in this case. No. 20-cv-02420-PAB-SKC, Docket
No. 76. The magistrate judge recommended denying as moot the portion of the motion
seeking the return of plaintiff’s tablet because the Court in Vigil had ordered the return
of the tablet for two months. Id. at 1. The magistrate judge also noted that plaintiff
could not demonstrate irreparable harm because the return of the tablet allowed him to
copy, by hand or otherwise, the materials he needs to litigate his cases. Id. at 2. The
magistrate judge recommended denying the motion with respect to plaintiff’s legal
materials because the Court in Vigil had found similar allegations insufficient. Id. On
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February 26, 2021, the magistrate judge denied plaintiff’s motions for a hearing, to
provide evidence, and for the use of his tablet at the hearing as moot in light of the
magistrate judge’s recommendation to deny the motion for a preliminary injunction.
Docket No. 77 at 1. On March 5, 2021, the Court docketed an objection from plaintiff.
Docket No. 88.
II. LEGAL STANDARD
To succeed on a motion for a preliminary injunction or temporary restraining
order, the moving party must show (1) a likelihood of success on the merits; (2) a
likelihood that the movant will suffer irreparable harm in the absence of preliminary
relief; (3) that the balance of equities tips in the movant’s favor; and (4) that the
injunction is in the public interest. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208
(10th Cir. 2009) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008));
see Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)). “[B]ecause a preliminary
injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.”
Beltronics USA, Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir.
2009) (quoting Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir.
2003)) (internal quotation marks omitted). Granting such “drastic relief,” United States
ex rel. Citizen Band Potawatomi Indian Tribe of Oklahoma v. Enter. Mgmt. Consultants,
Inc., 883 F.2d 886, 888-89 (10th Cir. 1989), “is the exception rather than the rule.” GTE
Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984).
Morever, because “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,” the
Tenth Circuit has identified the following three types of specifically disfavored
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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 it could recover at the conclusion of a full trial on the merits.”
Schrier v. Univ. of Colo., 427 F.3d 1253, 1258-59 (10th Cir. 2005). Injunctions that
disturb the status quo alter the parties’ existing relationship. Id. “The status quo is not
defined by the parties’ existing legal rights; it is defined by the reality of the existing
status and relationships between the parties, regardless of whether the existing status
and relationships may ultimately be found to be in accord or not in accord with the
parties’ legal rights.” Id. at 1259. Because plaintiff seeks injunctive relief that would
alter the status quo by requiring CDOC to return his materials, he is required “to make a
heightened showing of the four factors.” RoDa Drilling, 552 F.3d at 1208-09; see also O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1177 (10th
Cir. 2003).
The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is proper if it
is specific enough to enable the Court “to focus attention on those issues – factual and
legal – that are at the heart of the parties’ dispute.” United States v. 2121 East 30th
Street, 73 F.3d 1057, 1059 (10th Cir. 1996). Because plaintiff’s objection is timely and
specific, the Court will review the recommendation de novo. In light of plaintiff’s pro se
status, the Court construes his filings liberally. See Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
III. ANALYSIS
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Plaintiff makes the following objections: (1) the return of plaintiff’s tablet for a two
month period did not moot his motion for a preliminary injunction because he seeks the
permanent return of the tablet, (2) the magistrate judge’s recommendation did not
consider plaintiff’s state law arguments, (3) defendants’ response to plaintiff’s motion is
a known lie, and (4) plaintiff’s motions for a hearing, to provide evidence, and for the
use of his tablet at the hearing are not moot. Docket No. 88 at 4-7.
A. State Procedures
Plaintiff argues that the magistrate judge erred by not considering whether
plaintiff was entitled to the return of his tablet under Colo. R. Civ. P. 65 and 104. Id. at
6. Plaintiff’s motion states that plaintiff brings it pursuant to Fed. R. Civ. P. 65, Colo. R.
Civ. P. 65, and Colo. R. Civ. P. 104. Docket No. 46 at 1. The magistrate judge’s
recommendation did not address plaintiff’s argument that he is entitled to the return of
his tablet pursuant to Colo. R. Civ. P. 104 under the doctrine of replevin. See generally
Docket No. 76. A plaintiff bringing an action for replevin must show, by verified
complaint or by complaint and an affidavit under the penalty of perjury,
(1) That the plaintiff is the owner of the property claimed or is entitled to
possession thereof and the source of such title or right; and if plaintiff's
interest in such property is based upon a written instrument, a copy
thereof shall be attached;
(2) That the property is being detained by the defendant against the
plaintiff’s claim of right to possession; the means by which the defendant
came into possession thereof, and the specific facts constituting detention
against the right of the plaintiff to possession;
(3) A particular description of the property, a statement of its actual value,
and a statement to his best knowledge, information and belief concerning
the location of the property and of the residence and business address, if
any, of the defendant;
(4) That the property has not been taken for a tax assessment or fine
pursuant to a statute; or seized under an execution against the property of
the plaintiff; or if so seized, that it is by statute exempt from seizure.
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Colo. R. Civ. P. 104(b). If the complaint meets these criteria, “[t]he court shall without
delay . . . issue an order directed to the defendant to show cause why the property
should not be taken from the defendant and delivered to the plaintiff.” Colo. R. Civ. P.
104(c). Under Fed. R. Civ. P. 64(a), “every remedy is available that, under the law of
the state where the court is located, provides for seizing a person or property to secure
satisfaction of the potential judgment. But a federal statute governs to the extent it
applies.” See, e.g., Bank of Colo. v. Wibaux 1, LLC, No. 17-cv-02871-CMA-SKC,
Docket No. 30 at 1-2 (D. Colo. Jan. 9, 2018) (issuing order to show cause “pursuant to
Colorado Rule of Civil Procedure 104(c), as incorporated and made applicable by
Federal Rule of Civil Procedure 64”).
Plaintiff’s complaint fails to show “[t]hat the property is being detained by the
defendant against the plaintiff’s claim of right to possession; the means by which the
defendant came into possession thereof, and the specific facts constituting detention
against the right of the plaintiff to possession[.]” Colo. R. Civ. P. 104(b)(2). CDOC
seized plaintiff’s tablet as contraband, but the Court ordered that it be returned to him
for a two-month period of time in Vigil. No. 18-cv-03165-PAB-SKC, Docket No. 216 at
12. Plaintiff asked the Court to extend the return period beyond two months, but the
Court denied the motion. Id., Docket No. 253 at 6. However, plaintiff indicated that
CDOC gave him the option at the end of the two-month period to either mail the tablet
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home2 or turn it over to CDOC for its preservation until plaintiff’s release.3 Id., Docket
No. 230 at 1. Plaintiff’s objection in this case was filed on March 5, 2021, No. 20-cv-
02420-PAB-SKC, Docket No. 88, before the expiration of the two-month period in Vigil
on or about March 29, 2021. No. 18-cv-03165, Docket No. 230 at 1-2. Therefore, the
Court is unaware if plaintiff exercised his option to mail the tablet to a third party or
instead return it to CDOC to be held as his personal property. If plaintiff mailed the
tablet to a friend or family member, then CDOC is no longer holding the tablet.
Additionally, on May 20, 2021, plaintiff was transferred from CDOC to the
custody of WDOC. See No. 20-cv-02420-PAB-SKC, Docket No. 109 at 2; Docket No.
112 at 2. Because this transfer happened after plaintiff filed his objection, it is unclear
whether the tablet was transferred with plaintiff to WDOC (assuming plaintiff had not
already mailed the tablet to a third party before his transfer). It is unlikely that CDOC
has possession of the tablet given plaintiff’s ability to control its disposition, even though
he was not allowed to possess it at CDOC. Accordingly, the Court finds that plaintiff
has not shown “the specific facts constituting detention against the right of the plaintiff to
possession[.]” Colo. R. Civ. P. 104(b)(2). Therefore, the Court overrules plaintiff’s
objection to the extent it is based on Colo. R. Civ. P. 104. The Court also overrules
plaintiff’s objection to the extent he argues the magistrate judge erred in not granting his
2 Plaintiff stated that CDOC told him he “was to mail the tablet home or CDOC
would preserve it until Plaintiff’s release.” No. 18-cv-03165, Docket No. 230 at 1. The
Court construes “home” to be a reference to plaintiff’s mother, other family member, or
friend.
3 The magistrate judge had earlier ordered that the tablet be preserved until
further order of the Court. No. 18-cv-03165, Docket No. 135 at 2.
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motion based on Colo. R. Civ. P. 65. Federal Rule of Civil Procedure 65, not Colorado
Rule of Civil Procedure 65, controls in federal court.
B. Motion for Preliminary Injunction
The magistrate judge recommended denying plaintiff’s motion because it is moot
in light of the two-month return of plaintiff’s tablet and because there was no irreparable
harm. Docket No. 76 at 1-2. Plaintiff argues that his motion, to the extent it seeks a
preliminary injunction, is not moot because his tablet was only returned for two months
and his motion seeks its permanent return. Docket No. 88 at 6. However, plaintiff’s
argument misses the mark. Plaintiff seeks a preliminary injunction to return his tablet
while this case is pending. See Docket No. 46. To be sure, the final relief plaintiff
seeks in his complaint is the permanent return of his tablet. Docket No.1 at 41.
However, his motion is for a preliminary injunction, which is an intermediate version of
the final relief sought. De Beers Consol. Mines v. United States, 325 U.S. 212, 220
(1945) (“A preliminary injunction is always appropriate to grant intermediate relief of the
same character as that which may be granted finally.”). To grant plaintiff’s motion would
not be to order the permanent return of plaintiff’s tablet, it would be to order its return
while the case is pending. Therefore, plaintiff’s arguments against mootness are
unavailing.
Additionally, plaintiff does not object to the magistrate judge’s other conclusion
that, because the Court in Vigil ordered the return of plaintiff’s tablet for a two month
period, the magistrate judge “cannot find irreparable harm.” Docket No. 76 at 2. To
obtain a preliminary injunction, a plaintiff must demonstrate four factors by a
preponderance of the evidence: (1) a likelihood of success on the merits; (2) a likelihood
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that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that
the balance of equities tips in the movant’s favor; and (4) that the injunction is in the
public interest. RoDa Drilling, 552 F.3d at 1208. Because the magistrate judge found
no irreparable harm and plaintiff does not object to that finding, the Court finds that he
has not demonstrated a right to a preliminary injunction.
C. Alleged Lies by State Actors
Plaintiff argues that state actors lied in their response to his motion by stating that
CDOC policy forbids him from possessing his tablet. Docket No. 88 at 6-7. The
magistrate judge’s reasoning was based on the fact that the Court ordered the return of
plaintiff’s tablet for a two-month period, not the validity of the policy that CDOC relied on
to seize his tablet in the first place. See Docket No. 76 at 1-2. Plaintiff has not
explained how this conclusion is affected by the legitimacy of the policy relied on for the
initial tablet seizure, and the Court will overrule this objection.
D. Mootness of Docket Nos. 47, 48, and 49
The magistrate judge denied as moot plaintiff’s motion to provide new evidence,
Docket No. 47, motion for a hearing, Docket No. 48, and motion for the use of his tablet
at the hearing, Docket No. 49. Docket No. 77 at 1-2. Plaintiff objects that these
motions are not moot. Docket No. 88 at 7.
The Court has overruled plaintiff’s objections to the magistrate judge’s denial of
plaintiff’s motion for a preliminary injunction under Fed. R. Civ. P. 65 and Colo. R. Civ.
P. 65 and for replevin under Colo. R. Civ. P. 104. Docket No. 48 asks the Court to hold
a hearing regarding plaintiff’s motion for a preliminary injunction and replevin and
Docket No. 49 asks the Court to order CDOC to deliver his tablet to the Court for the
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hearing he requests in Docket No. 48. Because the Court will deny plaintiff’s motion for
a preliminary injunction and replevin, his request for a hearing and for access to his
tablet at the hearing are moot. Therefore, the Court overrules plaintiff’s objection to the
magistrate judge’s denial of Docket Nos. 48 and 49. Plaintiff’s motion to provide new
evidence that allegedly shows that CDOC’s reason for confiscating his tablet was false,
Docket No. 47, is also moot in light of the Court’s denial of his motion for a preliminary
injunction and replevin. The Court will therefore overrule plaintiff’s objections to the
magistrate judge’s order denying as moot Docket Nos. 47, 48 and 49.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge S. Kato
Crews [Docket No. 76] is ACCEPTED. It is further
ORDERED that Plaintiff Objections to ECF 76-77 Magistrate’s 6 Paragraph
Recommendation to Deny Plaintiff’s Motions ECF 46, 47, 48, and 49 as Moot via Order
ECF 216 of Chief Judge P.A. Brimmer in Vreeland v. Vigil, et al., 18-cv-03162-PAB-
SKC [Docket No. 88] is OVERRULED. It is further
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ORDERED that plaintiff’s Motion for Order Pursuant to Federal Rules of Civil
Procedure Rule 65 and Colorado Rules of Civil Procedure Rules 65 and 104 and Other
Common Law Remedies of Conversion Detinue Replevin and Bailment for the
Immediate Return of Legal and Personal Property Illegally Seized by CDOC Defendants
and all Directly Associated With This Case [Docket No. 46] is DENIED.
DATED September 27, 2021.
BY THE COURT:
__________________________
PHILIP A. BRIMMER
Chief United States District Judge
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