                                                       FILED
                                           United States Court of Appeals
                 UNITED STATES COURT OF APPEALS Tenth Circuit

                        FOR THE TENTH CIRCUIT                   June 28, 2017
                      _________________________________
                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
JOHN JAY POWERS,

      Plaintiff - Appellant,

v.                                                   No. 16-1490
                                            (D.C. No. 1:16-CV-00134-CBS)
FEDERAL BUREAU OF PRISONS,                             (D. Colo.)

      Defendant - Appellee.
                    _________________________________

                         ORDER AND JUDGMENT*
                      _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                 _________________________________

      Federal prisoner John Jay Powers appeals pro se1 from the district




      * After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist
in 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 isn’t binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. But it
may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
      1 Because Powers is a pro se litigant, we liberally construe his

filings. Jordan v. Sosa, 654 F.3d 1012, 1018 n.8 (10th Cir. 2011). But we
don’t “construct[] arguments” or “search[] the record” to find support for
his positions. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005).
court’s order denying his motion for a preliminary injunction.2 Because the

district court didn’t abuse its discretion in denying Powers’ motion, we

affirm.

                                      I

      Powers is incarcerated in the United States Penitentiary in

Florence, Colorado (USP-Florence). Powers “has incurred multiple

disciplinary sanctions that have resulted in fines or restitution for

destruction of property.” R. 55. Powers filed this civil action against the

Federal Bureau of Prisons (BOP), alleging that the BOP unlawfully

“encumbered” his prisoner trust fund account to collect those fines and

that restitution. Id. at 106.

      More specifically, Powers asserts that the BOP’s refusal to release

the encumbrance leaves him with a negative account balance and thereby

prevents him from “obtain[ing] legal assistance and/or communicat[ing]

with counsel”—activities he says are necessary so that he can seek post-

conviction relief, request executive clemency or commutation of his

sentence, and litigate various civil rights actions. Id. at 107-08. Thus,




      2With the parties’ consent, a magistrate judge ruled on the motion.
See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
                                      2
Powers claims, the BOP is depriving him of his constitutional right to

counsel by refusing to release his encumbered funds.3

     After filing his complaint, Powers moved for a preliminary

injunction directing the BOP to release his encumbered funds and make

them available to Powers for his use in obtaining legal counsel, purchasing

telephone and email credits to communicate with counsel, and purchasing

envelopes and postage stamps.

     In ruling on the motion, the district court construed Powers’ second

amended complaint as asserting only one claim: the BOP’s refusal to

release the encumbrance violates Powers’ Sixth Amendment right to

counsel.4 The court determined that Powers sought a mandatory


     3  Powers initially sued T. Cozza-Rhodes, the then-current warden at
USP-Florence, and five former wardens. Powers sought damages and
injunctive relief, alleging the defendants deprived him of his rights under
the First, Fifth, and Eighth Amendments by freezing his trust fund
account. After the district court identified deficiencies in Powers’
complaint, Powers filed a first amended complaint asserting the same
claims against Cozza-Rhodes and K. Meier, USP-Florence’s trust-fund
manager. Powers then moved for a preliminary injunction against the
BOP, and with leave of court, filed a second amended complaint naming
the BOP as the sole defendant. In the second amended complaint, Powers
seeks injunctive relief, but not damages.
      4 The district court considered Powers’ prior pleadings and construed

the second amended complaint as (1) abandoning his previously asserted
claims under the First, Fifth, and Eighth Amendments and (2) asserting
only the Sixth Amendment right-to-counsel claim. In his appellate briefs,
Powers refers to his First Amendment rights to communicate with counsel
and access the courts and to his Fifth Amendment due process rights. But
he doesn’t directly challenge the district court’s construction of his second
                                     3
preliminary injunction because he asked the court to order the BOP to

release the encumbrance. See Att’y Gen. of Okla. v. Tyson Foods, Inc., 565

F.3d 769, 776 (10th Cir. 2009) (explaining that mandatory injunctions

“require the ‘nonmoving party to take affirmative action . . . before a trial

on the merits occurs’” (quoting RoDa Drilling Co. v. Siegal, 552 F.3d 1203,

1208 (10th Cir. 2009))). And the court concluded that Powers failed to

make the “strong showing” necessary to obtain such an injunction. R. 123.

See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d

973, 976 (10th Cir. 2004) (en banc) (“[A] party seeking [a mandatory]

injunction must make a strong showing both with regard to the likelihood

of success on the merits and with regard to the balance of harms . . . .”).

Powers appeals.

                                      II

      We review the denial of a motion for preliminary injunction for

abuse of discretion. Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010).

In applying this standard, “we examine the district court’s legal

determinations de novo, and its underlying factual findings for clear

error.” Tyson Foods, Inc., 565 F.3d at 776. But “[o]ur review of a district



amended complaint as limited to the Sixth Amendment claim. Because he
has thus waived any argument on that point, see Garrett, 425 F.3d at 841,
we adopt the district court’s construction of the second amended complaint
for purposes of this interlocutory appeal.
                                      4
court’s exercise of discretion is narrow, and we consider the merits of the

case only as they affect that exercise of discretion.” Id.

      “To obtain a preliminary injunction, the moving party must

demonstrate four factors: (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., 552 F.3d at 1208.

      Preliminarily, the BOP argues that Powers waived appellate review

through inadequate briefing. See Garrett, 425 F.3d at 841 (emphasizing

that even pro se litigants can waive appellate review by failing to

adequately develop issues and comply with procedural rules). We agree

that Powers’ doesn’t fully develop the arguments presented in his opening

brief. But construing his pro se brief liberally, as we must, we discern

three challenges to the district court’s ruling.5

      First, Powers seems to argue that the court erred in concluding that

he failed to show a substantial likelihood of success on the merits. Powers’

merits claim rests on his assertion that he has a constitutional right to

      5 Additionally, we note that after the BOP pointed out various
deficiencies in Powers’ opening brief, Powers remedied many of those
deficiencies in his reply brief. Thus, we exercise our discretion to review
Powers’ arguments. See Garrett, 425 F.3d at 841 (noting this court’s
discretion to consider merits despite inadequate briefing).
                                       5
retain counsel to pursue post-conviction matters and civil rights actions.

But as the district court concluded, Powers’ theory lacks legal support.

See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to

appointed counsel extends to the first appeal of right, and no further.”);

Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1169 (10th Cir. 2003)

(noting that “plaintiffs have no Sixth Amendment right to counsel in a

civil case”).

      Nonetheless, Powers argues that because he seeks to retain

counsel—rather than to obtain appointed counsel—Luis v. United States,

136 S. Ct. 1083 (2016), supports his position. In Luis, the Court held that

“the pretrial restraint of legitimate, untainted assets needed to retain

counsel of choice violates the Sixth Amendment.” 136 S. Ct. at 1088

(emphasis added). As the district court pointed out, Powers isn’t a

criminal defendant awaiting trial. Rather, he is a convicted federal

prisoner who wishes to retain legal counsel to pursue post-conviction

remedies and civil rights actions. Luis simply doesn’t support Powers’

argument. Thus, we agree with the district court that Powers’ failed to

show—much less make a “strong showing”—that he has a substantial

likelihood of success on the merits. O Centro Espirita Beneficiente Uniao

Do Vegetal, 389 F.3d at 976.



                                      6
     Second, Powers appears to argue that the district court erred in

treating his motion as one seeking a mandatory preliminary injunction.

But Powers sought exactly that. Powers asked the district court to order

the BOP to release the encumbrance on his trust fund account, or at the

very least to release specific amounts of his “encumbered” funds, so he can

retain legal counsel and purchase telephone credits, email credits,

envelopes, and stamps to communicate with counsel. R. 42. Thus, contrary

to Powers’ assertion, the district court applied the proper legal standard

when it required Powers to make a “strong showing” before he could

obtain a mandatory preliminary injunction. O Centro Espirita Beneficiente

Uniao Do Vegetal, 389 F.3d at 976.

     Third, and finally, Powers seems to allege that the district court

made a clearly erroneous factual finding when it mentioned the BOP’s

assertion that Powers can, in fact, use his encumbered funds to buy

telephone and email credits, postage stamps, envelopes, and writing

materials. But the court mentioned this point in considering whether

Powers made a showing of irreparable harm. Because Powers failed to

make a strong showing of a substantial likelihood of success on the merits,

we need not address whether Powers made a showing of irreparable harm.

In any event, the record amply supports that Powers does, in fact, have

access to writing materials, postage stamps, and envelopes.

                                     7
                               *     *     *

     Because Powers hasn’t shown that the district court abused its

discretion in denying his motion for a preliminary injunction, we affirm.

Nevertheless, we grant Powers’ motion to proceed on appeal without

prepayment of fees and remind him that he remains obligated to continue

making partial payments until he has paid all fees in full.


                                      Entered for the Court


                                      Nancy L. Moritz
                                      Circuit Judge




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