                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 6 1997
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk


 DAVID Y. MERRITT,

          Plaintiff-Appellant,
 v.
                                                          No. 96-1528
 KATHLEEN M. HAWK; PATRICK R.                         (D.C. No. 95-Z-2653)
 KANE; BILL R. STORY; MICHAEL                               (D. Colo.)
 B. COOKSEY; M.L. McELMURRY;
 G.L. HERSHBERGER; LEE GREEN,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges.



      Plaintiff-Appellant David Y. Merritt, an inmate at the United States

Penitentiary Super Maximum Facility (ADX) at Florence, Colorado, brought this




      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Bivens action 1 against various ADX officials and guards, alleging that Merritt had

been repeatedly assaulted by known inmates and prison staff members at ADX,

and that the defendants had refused his repeated requests for protection from

these attacks. Merritt requested both monetary damages and other relief,

including preliminary injunctive relief and a temporary restraining order requiring

the defendants to place Merritt in protective custody.

       The district court referred the matter to a magistrate judge, who, pursuant

to 42 U.S.C.A. § 1997e(g)(2) (Supp. 1997), scheduled an evidentiary hearing to

determine whether preliminary injunctive relief should be ordered. The hearing

lasted four days. At the end of the hearing, the magistrate judge took the matter

under advisement, and later issued a thorough written Recommendation that

Merritt’s motion for preliminary injunctive relief be denied. Merritt v. Hawk, No.

95-Z-2653 (D. Colo. Sept. 24, 1996) (Recommendation of United States

Magistrate Judge). After considering Merritt’s objections, the district court

adopted the magistrate judge’s Recommendation. Merritt v. Hawk, No. 95-Z-

2653 (D. Colo. Oct. 23, 1996) (unpublished Order).




       See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
       1

U.S. 388 (1971) (permitting certain civil rights actions to be brought against the federal
government).

                                           -2-
       Merritt now appeals the denial of his motion for preliminary injunctive

relief or a temporary restraining order. We exercise jurisdiction pursuant to 28

U.S.C. § 1292(a)(1) (1994).

       As a threshold matter, we must address the status of the record on appeal.

Merritt timely filed a three-volume record on appeal in full compliance with 10th

Cir. R. 10.3.1. Volume III of the record on appeal contains an official transcript

of the district court’s oral statement of its findings and conclusions, as required

by 10th Cir. R. 10.3.1(c). At the same time he filed the three-volume paper

record, Merritt also filed cassette tape recordings of the four-day evidentiary

hearing presided over by the magistrate judge.

       Subsequently, Merritt filed two motions to supplement the record on

appeal. Both motions seek the admission of unofficial self-typed transcripts of

the four-day hearing, “in hopes of assisting The Court in locating what [Merritt]

believes supports his appeal.” (Motion For Leave To File Only Originals of

Appendices C & D). Apparently, Merritt could not afford the cost of obtaining

official transcripts of the hearing. 2




       2
        Merritt has paid his filing fees at every step of the present litigation, and is not
proceeding in forma pauperis. Thus, he may not avail himself of our procedure which
allows certain impoverished pro se appellants, with leave of the court, to obtain certain
transcripts at government expense. See 10th Cir. R. 11.2.

                                             -3-
      Under 10th Cir. R. 10.1.1, “[i]t is the appellant’s responsibility to order and

provide all portions of the transcript necessary to give the court of appeals a

complete and accurate record of the proceedings insofar as such proceedings

relate to the issues raised on appeal. . . .” Although 10th Cir. Rule 10.1.1 does

not expressly refer to “official transcripts,” it is clear from the requirement that

transcripts be “order[ed]” that transcripts must be official. See also Fed. R. App.

P. 10(b)(4) (requiring the appellant “to make satisfactory arrangements with the

reporter for payment of the cost of the transcript.”), and 10th Cir. R. 10.1.2

(“Transcripts must be ordered in accordance with Fed. R. App. P. 10(b), using

forms provided by the district court.”).

      On the other hand, the Federal Rules of Appellate Procedure recognize that

there may be occasions in which official transcripts are unavailable, but other--

albeit less reliable--evidence of proceedings may be obtained. Upon such

occasions:

      if a transcript is unavailable, the appellant may prepare a statement
      of the evidence or proceedings from the best available means,
      including the appellant's recollection. The statement shall be served
      on the appellee, who may serve objections or proposed amendments
      thereto within 10 days after service. Thereupon the statement and
      any objections or proposed amendments shall be submitted to the
      district court for settlement and approval and as settled and approved
      shall be included by the clerk of the district court in the record on
      appeal.

Fed. R. App. P. 10(c).


                                           -4-
      In the present case, we need not rule on Merritt’s motions to supplement

the record because, even if we were to consider Merritt’s proffered evidence of

the evidentiary hearing before the magistrate judge, we would not be able to

conclude that the district court abused its discretion in denying Merritt’s motion

for preliminary injunctive relief. As we have recently said:

      We review a district court's denial of a preliminary injunction for
      abuse of discretion. Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.
      1980). ‘An abuse of discretion occurs only when the trial court bases
      its decision on an erroneous conclusion of law or where there is no
      rational basis in the evidence for the ruling.’ In re Coordinated
      Pretrial Proceedings in Petro. Prod. Antitrust Litig., 669 F.2d 620,
      623 (10th Cir. 1982). Because a preliminary injunction is an
      extraordinary remedy, ‘the right to relief must be clear and
      unequivocal.’ SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096,
      1098 (10th Cir. 1991).

      To obtain injunctive relief, a party must establish that: (1) it will
      suffer irreparable injury unless an injunction is issued; (2) its
      threatened injury outweighs any harm the proposed injunction may
      cause to the opposing party; (3) it will likely prevail on the merits of
      the litigation; and (4) an injunction, if issued, would not be adverse
      to the public interest. Lundgrin, 619 F.2d at 63.

Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army, 111

F.3d 1485, 1997 WL 193941, at *3 (10th Cir. Apr. 22, 1997).

      It is clear that both the magistrate judge and the district court applied the

proper legal standard in deciding Merritt’s motion. See Merritt v. Hawk, No. 95-

Z-2653, slip op. at 2 (D. Colo. Sept. 24, 1996) (Recommendation of United States

Magistrate Judge); Merritt v. Hawk, No. 95-Z-2653, slip op. at 2 (D. Colo. Oct.


                                         -5-
23, 1996) (unpublished Order). Based on that standard, and after reviewing the

record, we are satisfied that the evidence before the magistrate judge established a

rational basis for his recommendation, and that the evidence before the district

court established a rational basis for its ruling on Merritt’s motion. We therefore

affirm the district court’s Order.



                                     CONCLUSION

      We DENY AS MOOT Merritt’s Motion For Leave To File Appendices A &

B. We also DENY AS MOOT Merritt’s Motion For Leave To File Only Originals

of Appendices C & D. We AFFIRM the Order of the district court denying

Merritt’s Motion for TRO & Preliminary Injunction.

      The mandate shall issue forthwith.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




                                         -6-
