Frischenmeyer v. Gonzales ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 17 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL J. FRISCHENMEYER,
Plaintiff-Appellant,
Case No. 96-2088
v.
(D.C. CV-96-110 JP/LFG)
FRANK GONZALES, McKinely County (District of New Mexico)
Sheriff; DANNY ROSS, Police Chief,
Gallup, NM,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has unanimously
determined that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(f); 10th 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This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
BACKGROUND
Plaintiff Michael J. Frischenmeyer, a prisoner incarcerated at the McKinley
County, New Mexico, jail, alleges in this pro se action that the defendant prison officials
violated his constitutional rights under 42 U.S.C. § 1983 by: (1) placing him in
administrative segregation; (2) failing to provide him with adequate medical attention; (3)
failing to provide adequate fire or emergency escape routes; (4) withholding his mail; (5)
denying him access to the courts and to legal reference materials; and (6) denying him
fresh air and exercise.
In the course of this action, Mr. Frischenmeyer filed a motion for a temporary
restraining order (“TRO motion”), see Rec. vol. I, doc. 7, to prevent defendants from
transferring him to the State of Texas to complete service on a sentence that is presently
on appeal. He also filed a motion for an emergency order (“emergency motion”), see
Rec. vol. I, doc. 8, which sought (1) the provision of medical care; (2) the allowance of
access to the media; and (3) the provision of access to other inmates seeking legal
assistance. The district court dismissed these two motions sua sponte. See Rec. vol. I,
doc. 9. The denial of these motions are the subject of this appeal.1
1
We note that this court ordered Mr. Frischenmeyer to discuss the relevant
jurisdictional issues, i.e.,”[w]hether the district court’s . . . [o]rder is a final appealable
decision under 28 U.S.C. § 1291 or under any recognized exception to the final judgment
rule?” See Attachment to Aplt’s Br. (April 29, 1996 Notice of Jurisdictional Defect).
Mr. Frischenmeyer failed to address the jurisdictional issue. We must always determine
jurisdiction, but here we must do so without appellant’s help. “Despite the liberal
construction afforded pro se pleadings, the court will not construct arguments or theories
2
DISCUSSION
The district court’s order was a ruling disposing of motions, and is not final as to
all issues and parties in this action. No judgment is final unless it adjudicates all claims
among all parties. See Fed. R. Civ. P. 54(b). There is no question that the district court
did not issue a final order under § 1291. We can address the underlying merits of an
action only if the order is final under 28 U.S.C. § 1291, or if the action falls among a class
of statutory exceptions provided in § 1292(a).
We turn next to determine whether a statutory exception provided in § 1292(a)
applies. Section 1292(a)(1) gives this court “jurisdiction of appeals from[] interlocutory
orders of the district courts . . . granting, continuing, modifying, refusing or dissolving
injunctions . . . .” 28 U.S.C. § 1292(a)(1). The Supreme Court has determined that §
1292(a)(1) is a limited exception to the final-judgment rule, and that “unless a litigant can
show that an interlocutory order of the district court might have a serious, perhaps
irreparable, consequence, and that the order can be effectually challenged only by
immediate appeal, the general congressional policy against piecemeal review will
preclude interlocutory appeal.” Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981)
(internal quotations omitted); Hutchinson v. Pfeil, 105 F.3d 566, 569 (10th Cir. 1997)
(quoting Carson).
for [Mr. Frischenmeyer] in the absence of any discussion of those issues.” Drake v. City
of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (citing Dunn v. White, 880 F.2d
1188, 1197 (10th Cir. 1989)).
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If the district court’s order had the (1) the practical effect of refusing or granting
an injunction; (2) threatened a serious, perhaps irreparable consequence; and (3) can be
“effectually challenged” only by immediate appeal, we could review it for an abuse of
discretion under the “collateral order doctrine.” Utah v. Kennecott Corp., 14 F.3d 1489,
1496 (10th Cir. 1994) (citing Carson, 450 U.S. at 84); see Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546-47 (1949).
The district court’s denial of Mr. Frischenmeyer’s motion for a temporary
restraining order does not fall within the scope of § 1292(a)(1). See Office of Personnel
Mgmt. v. American Fed’n of Gov’t Employees, 473 U.S. 1301, 1303-04 (1985) (stating
that “denials of temporary restraining orders are ordinarily not appealable”). The district
court’s order satisfies none of the Carson prongs and, as found by the district court, “[n]o
allegation is made that such a transfer is imminent or even planned, nor does the motion
describe a constitutionally protected interest that would be violated by the re-transfer.”
Rec. vol. I, doc. 9 at 4. See also 15A Charles A. Wright, et al., Federal Practice &
Procedure § 3914.3, at 522 (2d ed. 1995) (“In most circumstances appeal [from the
disposition of a TRO] is inappropriate because it is very difficult to secure meaningful
appellate review within the brief life of a [TRO], the harm done by grant or denial of a
[TRO] often can be reduced or eliminated at the preliminary injunction stage, and the
briefness of the surrounding procedures will provide little basis for informed appellate
decision.”).
4
Mr. Frischenmeyer’s appeal from the district court’s denial of his emergency
motion also fails, but for different reasons. The order analogized Mr. Frischenmeyer’s
motion to a motion for a preliminary injunction, and effectively denied his request for
equitable relief. See Rec. vol. I, doc. 9 at 1-2. “‘[I]n the case of orders that do not, as a
technical matter, grant or refuse an injunction, but are injunctive in practical effect, or in
practical effect deny an injunction, appealability depends upon the threat of [imminent]
serious, perhaps irrevocable harm.’” Hutchinson, 105 F.3d at 569 (quoting 9 James W.
Moore, et al., Moore’s Federal Practice ¶ 110.20[1], at 227 (2d ed. 1996)) (alterations in
original) (internal quotations omitted). The district court’s order is similar to that in
Hutchinson because it was injunctive in practical effect.
Having determined that the district court’s order had the practical effect of denying
injunctive relief with respect to Mr. Frischenmeyer’s emergency motion, we determine
whether he has made an adequate showing of harm as required by Carson. See
Hutchinson,105 F.3d at 570. Mr. Frischenmeyer has made no allegations “that
irreparable consequences are threatened,” nor is it likely that he could in good faith.2 See
2
In support of his medical attention claim, Mr. Frischenmeyer offers
conclusory allegations, which only belie his claim. He alleges that he has not received
adequate medical care, ostensibly as a result of his refusal to wear ankle cuffs during
transport to the medical clinic. See Rec. vol. I, doc. 8 at 1-2. The record further indicates
that Mr. Frischenmeyer visited the clinic a week earlier without incident and received
adequate care.
5
id. We shall not supply “arguments or theories” for Mr. Frischenmeyer in the “absence
of any discussion of these issues.” Drake, 927 F.2d at 1159.
Finally, Mr. Frischenmeyer has made no effort to show that the district court’s
order could only be “effectually challenged” by immediate appeal. See Hutchinson, 105
F.3d at 571. Moreover, “[i]t is clear that the district court’s order can be legally
challenged after the case is final even if an interlocutory appeal were proper here,” unless
a statute or rule provides otherwise. Id. (citing 9 Moore et al., supra ¶ 110.18, at 194-95);
see 19 Moore, et al., supra, ¶ 203.32[3][b] at 203-103 to 203-104 (3d ed. 1997). “Upon
an appeal from the final decree, every interlocutory order affecting the rights of the
parties is subject to review in the appellate court.” 11A Wright, et al., supra § 2962, at
433. Mr. Frischenmeyer will likely be able to seek review of the claims alleged in his
emergency motion when a final judgment is entered in this action.
Accordingly, we dismiss Mr. Frischenmeyer’s appeal of the district court’s denial
of his motions for a temporary restraining order and for an emergency order for lack of
jurisdiction.
The mandate shall issue forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
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