Ellis v. Retting et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Case No. 23-cv-03425-PAB-MEH
MARK S. ELLIS,
Plaintiff,
v.
AMANDA RETTING,
XAVIERA TURNER,
KRISTI STANSELL,
KYLE JONES,
JUSTIN ENSINGER, and
DOES 1–50,
Defendants.
____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s Motion for a Preliminary Injunction
[Docket No. 52]. In light of plaintiff’s pro se status, the Court construes his filings
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 does not act as an advocate for a pro
se litigant. See Hall, 935 F.2d at 1110.
I. BACKGROUND
Plaintiff Mark Ellis is an inmate at the Colorado Territorial Correctional Facility
(“CTCF”) in Cañon City, Colorado, which is part of the Colorado Department of
Corrections (“CDOC”). Docket No. 4 at 6, ¶ 1. On August 26, 2002, Mr. Ellis was
convicted of sexual assault of a child. Id., ¶ 3. In May 2021, Mr. Ellis was admitted to
the Sex Offender Treatment and Monitoring Program (“SOTMP”). Id. at 5. On May 2,
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 1 of 15

2
2022, Mr. Ellis was terminated from SOTMP without completing the program’s
requirements. Id. Mr. Ellis’s parole application has been “tabled” until Mr. Ellis
completes SOTMP. Id. at 7, ¶ 20. On December 26, 2023, Mr. Ellis filed suit in this
case based on his termination from SOTMP. Docket No. 1 at 5–6.
On January 12, 2024, Mr. Ellis filed an amended complaint in which he brings
five claims for relief against five named defendants and fifty Doe defendants. Docket
No. 4 at 1, 25–29, ¶¶ 203–55. Each of Mr. Ellis’s claims is brought against defendants
Amanda Retting, the SOTMP director; Xaviera Turner, a SOTMP therapeutic treatment
team member; Kristi Stansell, the supervisor of SOTMP at CTFC; Kyle Jones, the
SOTMP coordinator; and Justin Ensinger, a SOTMP therapeutic treatment team
member and supervisor. Id. at 6–7, ¶¶ 10–14. Mr. Ellis’s first claim is for violations of
his First Amendment rights. Id. at 25. Mr. Ellis alleges that his First Amendment rights
were violated because his termination from SOTMP was based on his religious beliefs.
Id. at 26, ¶ 211. He also alleges that defendants retaliated against him for filing
grievances concerning his termination from SOTMP in violation of his free speech
rights. Id. at 25, ¶ 205. Mr. Ellis’s second claim is for violations of his Due Process
rights under the Sixth and Fourteenth Amendments based on his termination from
SOTMP. Id. at 26–27, ¶¶ 214–25. Mr. Ellis’s third claim is for violations of his right to
be free from cruel and unusual punishment under the Eighth and Fourteenth
Amendments based on defendants’ alleged deliberate indifference to Mr. Ellis’s medical
and psychological needs.1 Id. at 27–28, ¶¶ 226–41. Mr. Ellis’ fourth claim is for an
1 Mr. Ellis does not identify what these medical and psychological needs are.
Docket No. 4 at 27–28, ¶¶ 226–41. However, Mr. Ellis appears to claim that his
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 2 of 15

3
alleged civil conspiracy to deprive Mr. Ellis of his rights under the Equal Protection
Clause of the Fourteenth Amendment based on defendants “depriving him of SOTMP
treatment.” Id. at 28–29, ¶¶ 242–48. Mr. Ellis’s fifth claim is for violations of the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), based on defendants’
implementation of anti-religious policies that he claims contributed to his termination
from SOTMP. Id. at 29, ¶¶ 249–55. In the amended complaint, Mr. Ellis seeks the
following relief: (1) an injunction ordering defendants not to retaliate against Mr. Ellis by
moving him to a prison outside the state of Colorado or by placing him in “Administrative
Segregation,” (2) an order reinstating Mr. Ellis into SOTMP, (3) an order requiring
defendants to accept certain parts of Mr. Ellis’s “Risk Management Plan” and placing
Mr. Ellis on “maintenance status”2; (4) an order directing defendants to inform the parole
board that Mr. Ellis has completed SOTMP; and (5) compensatory damages, punitive
damages, and attorney’s fees. Id. at 29–30, ¶ 256.
On October 21, 2024, Mr. Ellis filed his motion for a preliminary injunction.
Docket No. 52. In his motion, Mr. Ellis alleges that CDOC retaliated against him for
filing suit regarding his termination from SOTMP. Id. at 1–2. Mr. Ellis claims that CDOC
employees have retaliated against him in three ways. Id at 3–8, ¶¶ 1–67. First, Mr. Ellis
claims that CDOC employees have retaliated against him by placing him in
administrative segregation after he refused a housing assignment. Id. at 3–5, ¶¶ 1–29.
Mr. Ellis alleges that, on July 4, 2024, he was informed that he had been assigned to
termination from SOTMP demonstrates deliberate indifference to the medical and
psychological needs that were being met by the program. Id.
2 Mr. Ellis does not identify what “maintenance status” refers to. The Court
assumes that this status refers to Mr. Ellis’s participation in SOTMP.
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 3 of 15

4
the third level3 of Cell House One by Sergeant Grooms, a CDOC staff member
responsible for housing assignments. Id. at 3, ¶ 3. Mr. Ellis reminded Sergeant
Grooms that he has an accommodation under the Americans with Disabilities Act
(“ADA”) for a “bottom tier restriction”4 and that he was assigned a wheelchair. Id., ¶ 4.
Because Mr. Ellis refused to transfer to the third-level housing assignment, he was
placed in a security holding cell. Id. at 4, ¶ 13. On July 8, 2024, Mr. Ellis was released
from segregation and was transferred to the fourth level of Cell House One. Id., ¶¶ 20–
21. Mr. Ellis claims that he has been forced to use the stairs at Cell House One, despite
Mr. Ellis’s ADA accommodation, and that using the stairs has exacerbated his pain from
a pre-existing condition in his feet and ankles.5 Id. at 5, ¶¶ 25–26.
Mr. Ellis claims that CDOC employees have also retaliated against him for filing
suit by removing Mr. Ellis from the incentive program.6 Id., ¶ 30. On August 15, 2024,
Mr. Ellis was informed by Sergeant Mabb, who is responsible for housing assignments
3 Although Mr. Ellis does not identify what the “third level” of Cell House One is,
based on the allegations in the motion, the Court assumes that the level refers to the
floor of the building to which Mr. Ellis is assigned.
4 Mr. Ellis does not define this term. Based on the allegations in the complaint,
the Court assumes that a “bottom tier restriction” means that Mr. Ellis had an ADA
accommodation such that his housing assignment was restricted to the ground level of
the building. In his reply, Mr. Ellis also suggests that this ADA accommodation includes
an accommodation to be assigned to a bottom bunk. Docket No. 66 at 7.
5 Mr. Ellis alleges that, on October 2, 2024, he met with Dr. Patterson, an
orthopedic surgeon, at which meeting Mr. Ellis “was informed the injuries to Ellis’ feet
was now permanent.” Docket No. 52 at 5, ¶¶ 28–29. In his reply, Mr. Ellis states that
Dr. Patterson has diagnosed Mr. Ellis with “bilateral foot pain with fallen arches” and
that he “appears to have significant posterior tibial tendinitis.” Docket No. 66 at 8. Mr.
Ellis does not explain how using the stairs contributed to their permanency.
6 Mr. Ellis does not explain what the incentive program is. Based on the
allegations in the motion and defendants’ response, the Court understands the incentive
program to be a housing program that incentivizes inmates to conform their behavior
with a certain standard of conduct.
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 4 of 15

5
in Cell House Seven, that he had been removed from the list of offenders approved for
living in the incentive program. Id. Mr. Ellis states that the decision to remove him from
the incentive program was made by the Inmate Classification Committee (“ICC”). Id. at
6, ¶ 35. Mr. Ellis alleges, on information and belief, that defendant Ensinger
participated in the decision to remove him from the incentive program because Mr.
Ensinger is the SOTMP representative to the ICC.7 Id., ¶¶ 36–37. Mr. Ellis has
appealed ICC’s decision to remove him from the incentive program, but Mr. Ellis has
had no further communications from CDOC regarding a hearing on his appeal. Id. at 6–
7, ¶¶ 43, 46.
Finally, Mr. Ellis claims that, despite completing the requirements to return to
SOTMP, the ICC downgraded Mr. Ellis’s subcode from “E” to “D.” Id. at 7–8, ¶¶ 56–60.
In the amended complaint, Mr. Ellis states that there are three relevant subcodes
regarding SOTMP; “P” means “pending” and indicates that the inmate is on the waiting
list for the program, “E” means “Evaluation,” and “D” “indicates that Ellis is not eligible
for SOTMP and therefore ineligible for parole.” Docket No. 4 at 10, ¶ 51 & nn. 7, 8. In
his reply, Mr. Ellis states that “D” means “Does not meet criteria.” Docket No. 66 at 5.
He claims that Mr. Ensinger participated in the decision to downgrade Mr. Ellis’s
subcode and that, before the ICC’s decision, Mr. Ensinger consulted with defendants
Retting, Turner, and Jones. Docket No. 52 at 8, ¶ 61.
Mr. Ellis seeks a preliminary injunction to prohibit:
(a) CDOC and SOTMP staff members from engaging in any further retaliatory
acts or actions against Mr. Ellis,
7 It is unclear whether Mr. Ensinger is on the ICC or whether Mr. Ensinger reports
on behalf of SOTMP to the committee.
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 5 of 15

6
(b) CDOC and SOTMP staff members from placing Mr. Ellis in any adverse
housing assignments which violate Mr. Ellis’s ADA accommodations,
(c) CDOC from placing Mr. Ellis in segregation lacking a case of sufficient cause,
(d) CDOC from subjecting Mr. Ellis to further physical injury or harm,
(e) CDOC from taking additional detrimental actions with regard to Mr. Ellis’s
SOTMP status prior to the resolution of the pending lawsuit currently before
this Court,
(f) CDOC from administering disciplinary actions or changes to Mr. Ellis’s status
without Due Process protections which include a disciplinary hearing, and
(g) CDOC from moving Mr. Ellis to another prison, either inside or outside of the
State of Colorado, where Mr. Ellis would be subject to possible injury or death
due to Mr. Ellis’s conviction for sexual assault.
See id. at 9–10.
Defendants responded on November 22, 2024. Docket No. 63. Defendants
argue that Mr. Ellis’s motion is improper because it seeks injunctive relief against
individuals not parties to the case. Id. at 4. Defendants also assert that each of the
alleged acts of retaliation by CDOC resulted from Mr. Ellis’s conduct or omissions and
CDOC policy and that these acts were not taken in retaliation for Mr. Ellis’s lawsuit. Id.
at 12–13 (e.g. “Inmates who refuse their housing assignments are removed from the
Incentive Living Program. Therefore, after Plaintiff refused his housing assignment on
July 4, 2024, he was removed from the Incentive Living Program, per the relevant
Administrative Regulation.” (citations omitted)). Mr. Ellis replied on December 17,
2024.8 Docket No. 66.
II. LEGAL STANDARD
To succeed on a motion for a preliminary injunction, the moving party must show
(1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer
8 Mr. Ellis’s reply violates the Court’s practice standards because it exceeds ten
pages. Practice Standards (Civil cases), Chief Judge Philip A. Brimmer, § III.A.
(“Replies shall not exceed ten pages.” (emphasis omitted)).
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 6 of 15

7
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. Natural Res. Def.
Council, Inc., 555 US. 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 Distribution,
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 Okla. 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).
III. ANALYSIS
Mr. Ellis’s request for a preliminary injunction is deficient for four reasons,
namely, he seeks to enjoin entities that are not parties to the case, he seeks relief
unrelated to the claims in the amended complaint, he fails to demonstrate a likelihood of
success on the merits, and he fails to show that he is likely to suffer irreparable harm.
First, an injunction can only bind “the parties[,]. . . the parties’ officers, agents,
servants, employees, and attorneys,” and “other persons who are in active concert or
participation” with others bound by the injunction. Fed. R. Civ. P. 65(d)(2)(A)–(C). Mr.
Ellis’s complaint names five CDOC employees who work in SOTMP. Docket No. 4 at 1,
2–4. The complaint does not name CDOC as a defendant and does not name any
other SOTMP staff members. Mr. Ellis’s motion refers to various other CDOC
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 7 of 15

8
employees in charge of housing assignments at CTFC, but these individuals are not
named in the amended complaint. Moreover, much of the relief Mr. Ellis seeks, such as
an order enjoining CDOC from “placing Ellis in any adverse housing assignments which
violate Ellis’ ADA accommodations,” Docket No. 52 at 9–10, appears to be directed at
CDOC employees other than the named SOTMP employees. Therefore, Mr. Ellis’s
motion is denied to the extent he seeks to enjoin any individual or entity not named in
his amended complaint. See Fed. R. Civ. P. 65(d)(2); Dobler v. Schwartz, No. 21-cv-
01509-PAB-NRN, 2022 WL 1303066, at *1 (D. Colo. Apr. 29, 2022) (denying motion for
preliminary injunction because the individual named in the motion was not a party to the
lawsuit). Even if the Court found a basis to grant injunctive relief in favor of Mr. Ellis,
that relief would not bind CDOC or its employees, other than defendants Retting,
Turner, Stansell, Jones, and Ensinger.
However, the Court construes Mr. Ellis’s motion liberally. Hall, 935 F.2d at 1110.
Given that Mr. Ellis references the fact that Mr. Ensinger participated in the decisions of
the ICC, that Mr. Ensinger consulted with Ms. Retting, Ms. Turner, and Mr. Jones, and
that these individuals are SOTMP employees, Mr. Ellis’s motion appears to seek
injunctive relief against defendants named in the amended complaint. Therefore, the
Court will consider whether the conduct Mr. Ellis attributes to the ICC relates to Mr.
Ellis’s claims in the amended complaint.
In order to obtain a preliminary injunction, the moving party “must establish ‘a
relationship between the injury claimed in the party’s motion and the conduct asserted
in the complaint.’” Little, 607 F.3d at 1251 (quoting Devose v. Herrington, 42 F.3d 470,
471 (8th Cir. 1994)); see also Ala. v. United States Army Corps of Engineers, 424 F.3d
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 8 of 15

9
1117, 1134 (11th Cir. 2005) (“[I]njunctive relief must relate in some fashion to the relief
requested in the complaint.”). “When the movant seeks intermediate relief beyond the
claims in the complaint, the court is powerless to enter a preliminary injunction.” Means
v. Lambert, 2008 WL 483606, at *1 (W.D. Okla. Feb. 20, 2008). The amended
complaint alleges that the defendants violated Mr. Ellis’s constitutional rights by
terminating him from SOTMP. Docket No. 4 at 1, 25–29, ¶¶ 203–55. It does not allege
that Mr. Ellis was improperly put in administrative segregation, had a housing
assignment inconsistent with an accommodation under the ADA, or was removed from
a housing incentive program. Thus, the injuries described in Mr. Ellis’s motion
regarding the first two allegedly retaliatory acts are unrelated to the conduct described
in the complaint. See Escobar v. Jones, No. 09-cv-02207-CMA-KLM, 2011 WL
1642429, at *6 (D. Colo. Jan. 10, 2011), report and recommendation adopted, 2011 WL
1642378 (D. Colo. Apr. 29, 2011) (citing Devose, 42 F.3d at 471 (noting that the Tenth
Circuit has affirmed a district court’s denial of plaintiff’s motion for preliminary injunction
where the motion sought an injunction related to alleged retaliatory actions but the
underlying complaint brought only Eighth Amendment claims for inadequate medical
treatment). As such, Mr. Ellis’s motion fails to demonstrate a basis for granting a
preliminary injunction due to Mr. Ellis’s housing situation, including his removal from the
incentive program by the ICC. However, because Mr. Ellis’s third alleged act of
retaliation regarding downgrading his SOTMP status appears to be related to when and
whether Mr. Ellis can return to the program, the Court will consider whether Mr. Ellis has
made a sufficient showing on the RoDa Drilling factors.
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 9 of 15

10
Mr. Ellis’s motion fails to establish a likelihood that he will suffer irreparable harm
in the absence of preliminary relief or a likelihood of success on the merits.9 “Because
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 . . . will be considered.” Dominion Video
Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (citation
omitted). Courts in this district have held that mere allegations that a prisoner has been
retaliated against in the past for filing suit is insufficient to make a showing of probable
irreparable harm.10 See Sutton v. Colo. Dep’t of Corr. (CDOC), No. 17-cv-00605-RM-
9 In his reply, Mr. Ellis asserts that he does not have to make a showing of a
substantial likelihood of prevailing on the merits of his claim because he can
demonstrate that the other three factors strongly favor an injunction. Docket No. 66 at 3
(citing Fed. Lands Legal Consortium ex rel. Robart Est. v. United States, 195 F.3d 1190,
1195 (10th Cir. 1999), abrogation recognized by Onyx Properties LLC v. Bd. of Cnty.
Commissioners of Elbert Cnty., 838 F.3d 1039, 1043 (10th Cir. 2016)). Instead, he
claims he must show “that questions going to the merits are so serious, substantial,
difficult, and doubtful as to make the issue ripe for litigation and deserving of more
deliberate investigation.” Id. (quoting Fed. Lands, 195 F.3d at 1195); see also Prairie
Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246–47 (10th Cir. 2001) (“If the
party seeking the preliminary injunction can establish the last three factors listed above,
then the first factor becomes less strict – i.e., instead of showing a substantial likelihood
of success, the party need only prove that there are questions going to the merits so
serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and
deserving of more deliberate investigation.” (citation, quotation, and alterations
omitted)). First, for the reasons discussed in this order, the Court finds that Mr. Ellis has
failed to show imminent future harm. Second, even if the Court were to apply his
suggested lower standard, Mr. Ellis has not shown he is entitled to a preliminary
injunction. Mr. Ellis has made no showing regarding his constitutional claims. Docket
No. 66 at 10–12. Considering his RLUIPA claim, Mr. Ellis fails to show how his
termination from SOTMP imposed a substantial burden on the exercise of his Christian
faith and does not identify what questions regarding the merits of his claim he feels are
serious, substantial, difficult, and doubtful.
10 Mr. Ellis makes several arguments for the first time his reply. See Docket No.
66. The Court finds that Mr. Ellis has waived these arguments by failing to assert them
in the motion for a preliminary injunction. Gutierrez v. Cobos, 841 F.3d 895, 902 (10th
Cir. 2016) (“a party waives issues and arguments raised for the first time in a reply
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 10 of 15

11
MJW, 2017 WL 1327375, at *2 (D. Colo. Apr. 7, 2017) (“inmate’s speculation that he
may suffer acts of retaliation, including placement in segregation or a transfer, without
more does not establish irreparable harm for purposes of imposing injunctive relief”
(citing Sims v. New, No. 08-cv-00794-EWN-MEH, 2008 WL 5044554, at *2 (D. Colo.
Sept. 2, 2008), report and recommendation adopted, 2008 WL 5050075 (D. Colo. Nov.
18, 2008)); see also Rouse, 2012 WL 13076193, at *1 (“Plaintiff requests a preliminary
injunction to protect him from retaliation. He alleges that he has been placed in
segregation because of his pursuit of claims in this and other lawsuits. . . . All of
Plaintiff’s allegations in regards to Defendant relate to past injuries. Plaintiff has
therefore not demonstrated the clear risk of imminent future harm needed to satisfy the
irreparable harm requirement.” (citations omitted)).
Here, Mr. Ellis alleges that he was first informed that his SOTMP status had been
downgraded from “E” to “D” on October 11, 2024. Docket No. 52 at 7, ¶¶ 50–55. He
claims that the change to his SOTMP status occurred in August 2024 and that
administrative regulations required Mr. Ellis to be notified of a potential change before
the change took effect. Id. at 7–8, ¶¶ 52, 57. Mr. Ellis argues that, even though he has
brief.” (quoting Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011)). However,
even if the Court were to consider his arguments regarding irreparable harm, the
Court’s analysis would not change. Mr. Ellis acknowledges that he is seeking injunctive
relief based on CDOC’s past conduct, which, standing alone, is insufficient to show
imminent future harm. See Docket No. 66 at 13 (“Here, the basis of Ellis’ preliminary
injunction rests almost entirely upon actions which have already occurred.”); Rouse v.
Cruz, 2012 WL 13076193, at *1 (D.N.M. Oct. 18, 2012) (“All of Plaintiff’s allegations in
regards to Defendant relate to past injuries. Plaintiff has therefore not demonstrated the
clear risk of imminent future harm needed to satisfy the irreparable harm requirement.”
(citations omitted)).
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 11 of 15

12
completed all of the requirements to return to SOTMP, “[d]owngrading the SOTMP sub
code has now made Ellis ineligible for parole.” Id. at 8, ¶ 65.
Defendants respond that Mr. Ellis’s claim that
he is now ineligible for parole based on his SOTMP sub code is inaccurate.
Inmates who have the sub code “D” do not meet the SOTMP participation
criteria, but follow-up with the inmate is done annually to verify his or her
eligibility for SOTMP participation. Therefore, Plaintiff is not permanently
ineligible for parole based on his SOTMP sub code.
Docket No. 63 at 13 (citation omitted).
An assumption underlying Mr. Ellis’s motion is that, once he completes SOTMP,
he will be eligible for and receive parole. Defendants acknowledge that Mr. Ellis’s
parole eligibility date has passed. Id. at 13 n.1. Thus, although defendants argue that
Mr. Ellis is not “ineligible,” which they define as a designation given to inmates who are
more than four years from their parole eligibility date, the effect of Mr. Ellis’s downgrade
is to prevent him from participating in SOTMP, thereby delaying Mr. Ellis’s parole until
after his next annual assessment. Id. at 13. As such, downgrading Mr. Ellis’s subcode
may have the effect of denying Mr. Ellis the opportunity to receive parole at the earliest
possible date. However, Mr. Ellis provides no support for the proposition that, but for
defendants’ alleged retaliation, Mr. Ellis would be eligible to participate in SOTMP. Mr.
Ellis’s claim that he “submits he completed all of the requirements to return to the sex
offender program” without more is insufficient to show irreparable harm based on the
possibility that Mr. Ellis could more quickly receive parole.11 Docket No. 52 at 7, ¶ 56;
11 In his reply, Mr. Ellis claims that the irreparable harm at issue in his motion for
a preliminary indication is the harm arising from the violations of his constitutional rights
alleged in the amended complaint. Docket No. 66 at 12. He claims when “an alleged
constitutional right is involved, most courts hold that no further showing of irreputable
injury is necessary.” Id. (quoting Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir.
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 12 of 15

13
see Starr v. Kober, 2014 WL 1271222, at *4 (W.D. Okla. Mar. 26, 2014) (“Mr. Starr does
not allege sufficient facts to infer, much less present evidence to establish, that he will
suffer irreparable harm absent an injunction. That is, although Mr. Starr does allege
that he believes he is suffering or may suffer harm from one or more Defendants’
alleged conduct, Mr. Starr’s allegations are either conclusory or lack necessary factual
support to meet the standard for ‘irreparable harm.’”).
Moreover, even if the Court were to assume that Mr. Ellis has satisfied his
burden of demonstrating irreparable harm, he fails to show a likelihood of success on
the merits. Mr. Ellis’s only support for his showing of a likelihood of success on the
merits is the statement that he “believes he will eventually succeed in the prosecution of
this lawsuit based upon the merits of the case.” Docket No. 52 at 2. “To demonstrate a
likelihood of success on the merits of its claim, a plaintiff is required ‘to present a prima
facie case showing a reasonable probability that [it] will ultimately be entitled to the relief
sought.’” Louisiana Mun. Police Employees’ Ret. Sys. v. Cont’l Res., Inc., 886 F. Supp.
2d 1255, 1262 (W.D. Okla. 2012) (quoting Salt Lake Tribune Pub. Co., LLC v. AT & T
Corp. 320 F.3d 1081, 1100 (10th Cir. 2003)). Here, Mr. Ellis’s motion provides no
factual or legal basis to believe that he will likely succeed on his constitutional or
RLUIPA claims. 12 See Witt v. Colorado, No. 22-cv-02242-CNS-NRN, 2023 WL
2001)). However, for the reasons discussed above, Mr. Ellis fails to tie his motion for a
preliminary injunction to the claims and allegations in his amended complaint.
Moreover, in his reply, the only claim Mr. Ellis addresses is his RLUIPA claim. Id. at
10–11. In addition to being waived, Mr. Ellis’s arguments regarding his RLUIPA claim
do not show that a constitutional right is involved in his motion for a preliminary
injunction.
12 In his reply, Mr. Ellis argues for the first time that he is likely to succeed on his
RLUIPA claim. Docket No. 66 at 10–12. This argument is waived. Gutierrez, 841 F.3d
at 902 (arguments raised for the first time in a reply brief are waived). However, even if
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 13 of 15

14
2539294, at *1 (D. Colo. Mar. 16, 2023) (“Plaintiff cites no authority in support of his
argument that he has shown a likelihood of success on the merits of his claims.” (citing
Ross v. Texas Educ. Agency, 2008 WL 4746773, at *7 (S.D. Tex. Oct. 27, 2008)
(concluding that plaintiffs failed to demonstrate a likelihood of success on the merits on
claims where they “cited no authority and provided no analysis with respect to those
claims”)). Therefore, even if the Court were to find that Mr. Ellis had made a showing of
irreparable harm, the Court would still conclude that Mr. Ellis is not entitled to the
injunctive relief he seeks. Therefore, because Mr. Ellis (1) seeks injunctive relief
against entities who are not parties to this case, (2) fails to connect the basis for his
motion to the allegations in the amended complaint, (3) fails to make a showing of
the Court were to consider Mr. Ellis’s argument on this point, it would not alter the
Court’s analysis. First, Mr. Ellis has not made a showing of irreparable harm, and the
Court denies his motion for this additional reason. Second, Mr. Ellis has not shown that
he is likely to succeed on his RLUIPA claim. Mr. Ellis appears to assert that, because
Chief Magistrate Judge Michael Hegarty found that Mr. Ellis had plausibly stated his
RLUIPA claim, Mr. Ellis has made a substantial showing of a likelihood of success on
the merits. See Docket No 66 at 11. In doing so, Mr. Ellis “confuses the standard for
determining whether a claim should be dismissed for failure to state a claim with the
burden a party seeking injunctive relief bears in demonstrating a likelihood of success
on the merits.” Williams v. Mich. Dep’t of Corr., 2011 WL 1542845, at *1 (W.D. Mich.
Apr. 25, 2011) (“[I]t is irrelevant that the [magistrate judge] previously concluded that
Plaintiff states a claim for retaliation. As the magistrate judge correctly concluded,
Plaintiff failed to demonstrate a strong or substantial likelihood of success on the
merits.”). Moreover, Mr. Ellis’s motion fails to show how his termination from SOTMP
“placed considerable pressure on Ellis to violate his sincerely held religious belief that
Jesus Christ died on the cross for the sins of humankind.” Docket No. 66 at 11.
Therefore, he has failed show a likelihood he will be able to “demonstrate he wishes to
engage in (1) a religious exercise (2) motivated by a sincerely held belief, which
exercise (3) is subject to a substantial burden imposed by the government.”
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010).
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 14 of 15

15
irreparable harm, and (4) fails to demonstrate a likelihood of success on the merits, the
Court will deny Mr. Ellis’s motion for a preliminary injunction.13
IV. CONCLUSION
It is therefore
ORDERED that the Motion for a Preliminary Injunction [Docket No. 52] is
DENIED.
DATED December 19, 2024.
BY THE COURT:
__s/ Philip A. Brimmer__________
PHILIP A. BRIMMER
Chief United States District Judge
13 The Court concludes that it can appropriately resolve the present motion
without a hearing. See Sgaggio v. Weiser, No. 22-cv-01791-PAB, 2022 WL 3700723,
at *4 n.2 (D. Colo. Aug. 26, 2022) (denying preliminary injunction motion without a
hearing); Zeller v. Ventures Tr. 2013-I-NH, No. 15-cv-01077-PAB-NYW, 2015 WL
4720313, at *5 n.2 (D. Colo. Aug. 10, 2015) (denying preliminary injunction motion
without a hearing) (citing Prosper, Inc. v. Innovative Software Techs, 188 F. App’x 703,
706 (10th Cir. 2006) (unpublished) (holding that district court did not abuse its discretion
in failing to hold a hearing on motion for preliminary injunction); Reynolds & Reynolds
Co. v. Eaves, 1998 WL 339465, at *3 (10th Cir. June 10, 1998) (table decision)
(rejecting argument that court was required to hold evidentiary hearing on motion for
preliminary injunction)); see also D.C.COLO.LCivR 7.1(h); Fed. R. Civ. P. 78(b) (“By
rule or order, the court may provide for submitting and determining motions on briefs,
without oral hearings.”).
Case No. 1:23-cv-03425-PAB-CYC Document 67 filed 12/19/24 USDC Colorado
pg 15 of 15