                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                     UNITED STATES COURT OF APPEALS                      April 11, 2018

                                  TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                          Clerk of Court


 JASON BROOKS,

                Plaintiff - Appellant,

 and

 JAMIE VALDIVIEZO-PEREA,

               Plaintiff,

 v.                                                         No. 17-1363
                                                             (D. Colo.)
 COLORADO DEPARTMENT OF                           (D.C. No. 1:17-CV-02190-GPG)
 CORRECTIONS; RICK RAEMISCH,
 CDOC Executive Director; TERESA
 REYNOLDS, CDOC Legal access
 program and litigation manager;
 LEEANN PUGA, FCF Law Librarian;
 and DOES 1-50,

                Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.



       *
              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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . 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judgment is not binding precedent, except under the doctrines of law of the case,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. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Pro se plaintiff Jason Brooks raises this interlocutory appeal from the

district court’s denial of his motion for a preliminary injunction and motion for a

protective order. Mr. Brooks is a prisoner at the Fremont Correctional Facility

(“FCF”) of the Colorado Department of Corrections (“CDOC”). He filed this

lawsuit under 42 U.S.C. § 1983 against CDOC and a number of individual

defendants alleging a violation of his right to access the courts, as well as

retaliation for exercising that right and for assisting other inmates in exercising

their rights.

       Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a), and construing Mr.

Brooks’s filings liberally, see Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir.

2010), we affirm the district court’s order.

       Mr. Brooks previously sued CDOC and a number of its medical staff in a

separate lawsuit alleging violations of Title II of the Americans with Disabilities

Act and the Eighth Amendment of the United States Constitution, arising from

inadequate provision of treatment for his ulcerative colitis. See Brooks v. Colo.

Dep’t of Corr., No. 16-1469, 2017 WL 4785934, at *1 (10th Cir. Oct. 24, 2017)

(unpublished). Mr. Brooks has spent a significant amount of time litigating this

and other lawsuits. When not pursuing his own claims, Mr. Brooks also serves as

a “jailhouse lawyer,” assisting fellow inmates with legal work.

       An FCF library policy permits inmates to assist each other with legal work,


                                          2
but the policy requires both inmates to be present in the library while the

assistance is rendered. On August 21, 2017, Mr. Brooks attempted to print a

motion for post-conviction relief for fellow inmate Jamie Valdiviezo-Perea while

Mr. Valdiviezo-Perea was not present. A legal librarian denied his print request,

and Mr. Brooks responded by claiming that he and Mr. Valdiviezo-Perea were

co-defendants—by which, he now explains, he meant that they became

“co-defendants in equity” from the moment the print request was denied. R. at 31

(Pl.’s Mot. for Prelim. Inj., dated Sept. 11, 2017). The librarian concluded that

Mr. Brooks and Mr. Valdiviezo-Perea were not co-defendants. The librarian

proceeded to read other legal documents saved in Mr. Brooks’s digital folder, and

demanded that Mr. Brooks delete files pertaining to other inmates in accordance

with FCF’s data storage policies. Mr. Brooks did not comply, and the librarian

deleted the files herself.

      Mr. Brooks was “writ[ten ]up” for fraud following this incident, and for

issuing a threat (which Mr. Brooks denies) during a subsequent confrontation with

the same legal librarian. Id. Following a disciplinary hearing, Mr. Brooks lost

thirty days of “good time,” was moved out of the “incentive living unit,” and was

placed in segregated confinement for ten days; during eight of these days, Mr.

Brooks claims that he did not eat because the food that he was provided

exacerbated his ulcerative colitis. See id. at 60 (Pl.’s Mot. for Protective Order,

dated Sept. 12, 2017); Aplt.’s Opening Br. at 3. Mr. Brooks claims that, “after

                                          3
[he] was fraudulently written-up, [the legal librarians] revised the CDOC Word

Processing Agreement to all [of a] sudden state, ‘All documents created are

subject to review by [a] Legal Assistant,’” and that this revised policy is

“unconstitutional on its face.” Aplt.’s Opening Br. at 4.

      Mr. Brooks filed a complaint in the district court challenging various FCF

policies that, he claims, infringe his right to access the courts without legitimate

penological justification, and claiming that the disciplinary sanctions were

imposed in retaliation for his exercise of that court-access right. Mr. Brooks

simultaneously moved for a preliminary injunction to order the CDOC to “vacate”

the disciplinary findings against him and restore his digital files, to prohibit

prison officers from reading his legal documents, and to enjoin enforcement of

policies: (1) requiring prisoners to consent to have librarians read their legal

documents if they wish to use word-processing software; (2) requiring prisoners

to be present in the library together if they wish to collaborate on legal work; and

(3) placing restrictions on the type and length of documents that may be copied or

printed in the legal library. R. at 40–41. Mr. Brooks argues that the requested

injunctive measures are necessary to allow him to pursue this suit. Mr. Brooks

also moved for a protective order prohibiting the law librarian from interacting

with him or reading his digital files.




                                           4
      On September 18, 2017, the district court denied Mr. Brooks’s motions. 1

The court held that Mr. Brooks had not shown that he would suffer irreparable

injury absent injunctive relief, nor had he demonstrated a likelihood of success on

the merits. The court further denied Mr. Brooks’s motion for reconsideration, and

dismissed Mr. Valdiviezo-Perea from the suit for failing to respond to the court’s

orders. On October 12, 2017, Mr. Brooks filed his notice of interlocutory appeal.

The court denied Mr. Brooks’s request for in forma pauperis (“IFP”) status for

this interlocutory appeal, finding that the appeal was “not taken in good faith.”

Id. at 148 (Min. Order, dated Nov. 14, 2017).

      Mr. Brooks alleged, by way of a declaration dated September 21, 2017, that

he was written up for two further “baseless” disciplinary charges, and that he was

sent to disciplinary segregation after he filed the instant complaint. Id. at 79

(Decl. of Jason Brooks, dated Sept. 21, 2017). Mr. Brooks was apparently

charged with using a derogatory word to refer to a prison officer.

      On March 19, 2018, after this appeal had been pending for over four

months, Mr. Brooks filed a request for this court to take judicial notice of the

district court’s March 1, 2018 order directing him to limit his amended complaint

to thirty pages. Mr. Brooks challenges the legality of this order, arguing that he



      1
              The district court issued this order before service was made upon the
defendants. None of the defendants have appeared or filed briefs before the
district court or on appeal.

                                          5
requires a significantly greater number of pages to satisfy the pleading standards

of Federal Rule of Civil Procedure 8. Mr. Brooks also repeats many of the factual

and legal claims regarding the CDOC printing policies previously raised in his

preliminary-injunction motion and his brief on appeal.

      This court reviews the denial of a motion for a preliminary injunction for

an abuse of discretion. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114,

1128 (10th Cir. 2013) (en banc), aff’d sub nom. Burwell v. Hobby Lobby Stores,

Inc., --- U.S. ----, 134 S. Ct. 2751 (2014). “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.” Awad v. Ziriax, 670 F.3d

1111, 1125 (10th Cir. 2012) (quoting Wilderness Workshop v. U.S. Bureau of

Land Mgmt., 531 F.3d 1220, 1223–24 (10th Cir. 2008)).

      A movant must show that the following four factors weigh in his favor to

establish a right to a preliminary injunction: “(1) [he] is substantially likely to

succeed on the merits; (2) [he] will suffer irreparable injury if the injunction is

denied; (3) [his] threatened injury outweighs the injury the opposing party will

suffer under the injunction; and (4) the injunction would not be adverse to the

public interest.” Id. (alterations in original) (quoting Beltronics USA, Inc. v.

Midwest Inventory Distribution, L.L.C., 562 F.3d 1067, 1070 (10th Cir. 2009)).

To obtain a preliminary injunction altering the status quo, as requested here, the

movant “must make a strong showing both with regard to the likelihood of

                                           6
success on the merits and with regard to the balance of harms.” O Centro

Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975–76 (10th

Cir. 2004) (en banc) (per curiam) (emphasis added), aff’d sub nom. Gonzales v. O

Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).

      A preliminary injunction is an “‘extraordinary remedy’ that is granted only

when ‘the movant’s right to relief [is] clear and unequivocal.” First W. Capital

Mgmt. Co. v. Malamed, 874 F.3d 1136, 1145 (10th Cir. 2017) (alteration in

original) (quoting Wilderness Workshop, 531 F.3d at 1224). Further, where a

party seeks a preliminary injunction to “alter the status quo,” “the movant must

satisfy a heightened burden” of showing “that the exigencies of the case support”

his motion. O Centro Espirita Beneficiente Uniao Do Vegetal, 389 F.3d at 975.

      Mr. Brooks claims that prison policies and retaliation will cause irreparable

injury to his right to access the courts absent a preliminary injunction because he

will be unable to prosecute this and other lawsuits. The district court held that

Mr. Brooks had not shown that he would suffer prospective, irreparable injury

absent a preliminary injunction. 2 Based on our review of the record, we affirm. 3

      2
             Mr. Brooks’s notice of appeal designates both the denial of the
preliminary injunction and the denial of the protective order as orders appealed
from. However, Mr. Brooks raises no arguments unique to his motion for a
protective order on appeal. The district court treated both motions together as
motions for preliminary injunctions, and we do the same here.
      3
             Because we affirm on the basis that Mr. Brooks has not shown that
he will suffer irreparable injury, we need not reach the district court’s alternate
                                                                        (continued...)

                                          7
      The right to access the courts is “one aspect of the First Amendment right

to petition the government for redress,” as well as a “guarantee[ of] the right to

present to a court of law allegations concerning the violation of constitutional

rights” protected by the Due Process Clause. See Smith v. Maschner, 899 F.2d

940, 947 (10th Cir. 1990).

      As pertains to the rights of prisoners, the Supreme Court has held that “the

fundamental constitutional right of access to the courts requires prison authorities

to assist inmates in the preparation and filing of meaningful legal papers.”

Bounds v. Smith, 430 U.S. 817, 828 (1977). The right to access the courts does

not, however, guarantee inmates “the right to a law library or to legal assistance,”

but merely to “the means for ensuring ‘a reasonably adequate opportunity to

present claimed violations of fundamental constitutional rights to the courts.’”

Lewis v. Casey, 518 U.S. 343, 350–51 (1996) (quoting Bounds, 430 U.S. at 825).

The right to access the courts is “only [the right] to present . . . grievances to the

courts,” and does not require prison administrators to supply resources

guaranteeing inmates’ ability “to litigate effectively once in court” or to “conduct

generalized research.” Id. at 354, 360. The right “guarantees no particular

methodology but rather the conferral of a capability—the capability of bringing


      3
       (...continued)
holding that Mr. Brooks failed to show a likelihood of success on the merits. We
offer no opinion regarding the likelihood of Mr. Brooks’s ultimate success on the
merits of his claims.

                                            8
contemplated challenges to sentences or conditions of confinement before the

courts.” Id. at 356.

        A plaintiff must show “actual injury” to demonstrate a violation of the right

to access the courts, as that right is not a “freestanding right to a law library or

legal assistance.” Id. at 351. The plaintiff “must show that any denial or delay of

access to the court prejudiced him in pursuing litigation.” Treff v. Galetka, 74

F.3d 191, 194 (10th Cir. 1996).

        Here, Mr. Brooks has not shown that the CDOC policies will prevent him

from “present[ing his] grievances to the courts.” Lewis, 518 U.S. at 360. He has

identified no concrete claim on his own behalf that he has been unable to present

to a court on account of the various prison policies governing inmates’ legal

work.

        Mr. Brooks claims that printing and copying restrictions will limit his

ability to effectively litigate. He relies upon Johnson v. Parke, 642 F.2d 377,

379–80 (10th Cir. 1981) (per curiam), in which this court held that a prison policy

strictly limiting the photocopying of legal documents to a single copy would

unconstitutionally restrict inmates’ rights to access the courts. The court in

Johnson limited its holding, however, noting that “an inmate’s right of access to

the courts does not require that prison officials provide inmates free or unlimited

access to photocopying machinery.” Id. at 380.

        The district court did not abuse its discretion here in finding that the CDOC

                                            9
policies do not threaten irreparable injury. The policies did not prevent Mr.

Brooks from presenting the district court with a fact-intensive, twenty-five page

motion for a preliminary injunction in this case, complete with relevant legal

support, and a twenty-three page brief on appeal substantially repeating the same

factual allegations and legal arguments.

      Mr. Brooks argues that First Amendment violations are, per se, irreparable

injuries, citing Elrod v. Burns, 427 U.S. 347 (1976), for this proposition. That

case involved claims by public employees who faced threats of discharge due to

their political affiliations. Id. at 349. Irrespective of whether the political rights

of public employees are even remotely analogous to prisoners’ rights to access the

courts, as discussed above, Mr. Brooks has not shown that he will suffer a First

Amendment violation: He has not shown that the policies of the CDOC infringe

upon his right—arising under the First Amendment—to “present . . . grievances to

the courts.” Lewis, 518 U.S. at 360.

      Finally, Mr. Brooks alleges that immediate injunctive relief is required to

protect the right of his co-plaintiff, Mr. Valdiviezo-Perea, to seek collateral relief

from his conviction. Mr. Valdiviezo-Perea has been dismissed from this suit and

has raised no appeal from that order. This court therefore lacks jurisdiction to

review Mr. Brooks’s claim to vindicate Mr. Valdiviezo-Perea’s right. See F ED . R.

A PP . P. 3(c)(1)(A); Smith v. Barry, 502 U.S. 244, 248 (1992) (“Rule 3’s dictates

are jurisdictional in nature, and their satisfaction is a prerequisite to appellate

                                           10
review.”); Soma Med. Int’l v. Standard Chartered Bank, 196 F.3d 1292, 1300 &

n.2 (10th Cir. 1999).

      For the reasons discussed above, we conclude that the district court did not

abuse its discretion in holding that Mr. Brooks failed to show he would suffer

irreparable injury absent a preliminary injunction, especially given the heightened

showing required for injunctive relief altering the status quo. See O Centro

Espirita Beneficiente Uniao Do Vegetal, 389 F.3d at 976. We therefore affirm

the district court’s order denying a preliminary injunction.

      As we mentioned, Mr. Brooks has asked us to take judicial notice of the

district court’s order limiting his amended complaint to no more than thirty pages.

Mr. Brooks also has requested that we order supplemental briefing, apparently

with the objective of obtaining relief from that order. The district court’s order

governing Mr. Brooks’s yet-to-be-filed amended complaint is not at issue in this

appeal from the denial of a preliminary injunction, and this court lacks

jurisdiction to review orders of the district court not designated in Mr. Brooks’s

notice of appeal. See Soma Med. Int’l, 196 F.3d at 1300 & n.2. Any limitations

upon Mr. Brooks’s amended complaint are not relevant to the denial of

preliminary injunctive relief under review. 4 We therefore deny Mr. Brooks’s



      4
              To the extent that Mr. Brooks’s judicial-notice request includes
factual and legal claims relevant to the order appealed from, such claims are
repetitive of claims made in his opening brief on appeal.

                                         11
request to take judicial notice, and decline to order supplemental briefing.

      Finally, Mr. Brooks renews his request to proceed IFP on appeal. Under

the IFP statute, this court may authorize the commencement of an appeal “without

prepayment of fees.” 28 U.S.C. § 1915(a)(1). Because we find that Mr. Brooks

has advanced a “reasoned, nonfrivolous argument on the law and facts in support

of the issues raised on appeal,” McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,

812–13 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan, 937 F.2d 502, 505

(10th Cir. 1991)), we grant his request for IFP status. 5

      For the foregoing reasons, we AFFIRM the district court’s judgment

denying Mr. Brooks’s motion for a preliminary injunction and motion for a

protective order, and GRANT Mr. Brooks’s request to proceed IFP on appeal.



                                        ENTERED FOR THE COURT



                                        Jerome A. Holmes
                                        Circuit Judge



      5
             Lest this grant engender any confusion, we underscore that Mr.
Brooks is not relieved of the obligation to pay the full filing fee in partial
payments. On December 19, 2017, Mr. Brooks filed a document styled, “Request
for Ruling on Substantive Aspects of In Forma Pauperis,” seeking in effect a
waiver of these partial payments. Such waivers are statutorily prohibited. See 28
U.S.C. § 1951(b)(1). We properly hold Mr. Brooks responsible for having
knowledge of this statutory prohibition when he elected to file and prosecute this
appeal. His December 19 request is denied.

                                          12
