                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 29 2003
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    ERNEST JACK HILL, III,

                 Plaintiff - Appellant,

    v.                                                    No. 02-1161
                                                      D.C. No. 00-RB-2511
    MICHAEL V. PUGH, Warden;                             (D. Colorado)
    G.L. HERSHBERGER, Regional
    Director B.O.P.; KATHLEEN
    HAWK-SAWYER,

                 Defendants - Appellees.


                              ORDER AND JUDGMENT          *




Before KELLY , McKAY , and O’BRIEN , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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      This order and judgment is not binding precedent, except under the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.
       Plaintiff-appellant Earnest Jack Hill, a federal prisoner appearing pro se,

brings this civil-rights action pursuant to   Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics , 403 U.S. 388 (1971). He appeals the district court’s

denial of his motion for injunctive relief. This court has appellate jurisdiction

pursuant to 28 U.S.C. § 1292(a)(1), which applies to appeals from district court

interlocutory orders denying injunctions.     1
                                                  We affirm.

       Mr. Hill is an inmate at the United States Penitentiary, Administrative

Maximum facility in Florence, Colorado (ADX). He filed the instant action

alleging that his conditions of confinement have exacerbated his pre-existing

mental problems, in violation of the Eighth Amendment prohibition against cruel

and unusual punishment. Mr. Hill also moved for an injunction requiring

defendants to transfer him to a less restrictive environment. After holding an

evidentiary inquiry into the effects of solitary confinement on Mr. Hill’s mental

condition and considering both parties’ tendered documents, the magistrate judge

recommended that the motion be denied:


1
       Mr. Hill captioned his filing as a “Renewed Motion for Temporary
Restraining-Protective Order.” “Ordinarily, denial of a temporary restraining
order is not appealable. There are, however, at least two exceptions to this
general rule.” Populist Party v. Herschler , 746 F.2d 656, 661 n.2 (10th Cir.
1984) (citations omitted). This case fits within the exception applicable “when
the order in reality operates as a preliminary injunction” because an adversary
hearing was held. Id. Additionally, we note that the pro se plaintiff, the
defendants, the magistrate judge, and the district court all treated the motion as
one for preliminary injunctive relief.

                                              -2-
          Based upon the record before the court, and more particularly the
          history of Plaintiff’s mental health diagnoses and the frequency of his
          contacts with the mental health staff at ADX, the [magistrate judge
          did] not find sufficient evidence to demonstrate that Plaintiff is
          incarcerated under conditions imposing a substantial risk of serious
          harm. The [magistrate judge] further [found] that Plaintiff has not
          demonstrated a substantial likelihood of success on the merits.

R., vol. 3, doc. 114 at 14. The district court reviewed de novo all portions of the

magistrate judge’s recommendation to which objections were filed, then adopted

the magistrate judge’s recommendation and denied the request for injunctive

relief.

          The parties are familiar with the underlying facts and we will not repeat

them. This court reviews a “district court’s denial of a motion for a preliminary

injunction . . . for an abuse of discretion, legal error, or clearly erroneous factual

findings.” Kikumura v. Hurley,       242 F.3d 950, 955 (10th Cir. 2001).

          A movant is entitled to a preliminary injunction if he can establish the
          following: (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 the public interest. Because a preliminary
          injunction is an extraordinary remedy, the right to relief must be clear
          and unequivocal.

Id. (citation and quotation omitted).

          After carefully reviewing the magistrate judge’s recommendation, the

district court’s order, and the record on appeal, we conclude that Mr. Hill has

failed to demonstrate an abuse of discretion, legal error, or clearly erroneous

                                             -3-
factual findings in connection with the denial of his motion for injunctive relief.

We AFFIRM for substantially the same reasons stated in the magistrate judge’s

recommendation dated December 20, 2001, and the district court’s order dated

March 25, 2002. We GRANT Mr. Hill’s Motion for Leave to Proceed Without

Prepayment of Costs or Fees. We remind Mr. Hill that he is obligated to continue

making partial payments until the entire fee has been paid.


                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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