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

                           FOR THE TENTH CIRCUIT                       August 21, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
ROBERT MARK STEPHENS,

             Plaintiff-Appellant,

v.                                                        No. 11-6284
                                                   (D.C. No. 5:10-CV-00166-D)
JUSTIN JONES, Director, DOC;                              (W.D. Okla.)
GENESE MCCOY, Medical Services
Administrator; DONNA LAYMON,
Warden; MARVIN VAUGHN, Warden;
WILLIAM MONDAY, Deputy Warden;
MARY STEVENS, Correctional Health
Services Administrator; CUONG PHAM,
Doctor; JOHN STEWART, Psychologist;
CARRIE BRIDGES, Procedures Officer;
JOE OWENS, Unit Manager; JACKIE
PERKINS, Law Library Supervisor;
KAREN WALKER, Kitchen Supervisor,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. 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 Robert Mark Stephens, a state prisoner in the custody of the

Oklahoma Department of Corrections (DOC), appeals from several district court

orders. We dismiss the appeal in part for failure to prosecute and affirm in part.

I.    BACKGROUND

      In a complaint filed under 42 U.S.C. § 1983, Mr. Stephens asserted that during

his stay at the William S. Key Correctional Center (WSKCC), prison officials denied

him timely and adequate access to the courts, retaliated against him for filing

grievances, improperly terminated his job in the prison law library, exhibited

deliberate indifference to his health, and forced him to participate in a prison

program. He sought declaratory, injunctive, and monetary relief. Mr. Stephens also

filed a motion for a temporary restraining order (TRO) regarding access to his legal

materials. Defendants filed a motion for summary judgment, as did Mr. Stephens.

Mr. Stephens also filed a motion for sanctions against defendants and their counsel.

Adopting the recommendations of a magistrate judge, the district court denied the

TRO motion, denied the motion for sanctions, denied Mr. Stephens’s summary

judgment motion, and granted in part and denied in part defendants’ summary

judgment motion. One of Mr. Stephens’s claims survived these rounds of litigation.

This appeal followed.

II.   APPELLATE JURISDICTION

      Mr. Stephens’s notice of appeal designated three orders for appeal: the order

denying his TRO motion, the order denying his motion for sanctions, and the order
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on the summary judgment motions. Concerned that none of these orders were

properly appealable final judgments, the Clerk of this court directed Mr. Stephens to

either (1) file a brief describing the legal basis for this court’s exercise of jurisdiction

over any of the orders listed in his notice of appeal, (2) file an order from the district

court expressly resolving all remaining claims against all remaining parties, (3) file a

voluntary dismissal, or (4) do nothing and thereby permit this court to dismiss the

appeal for failure to prosecute. Mr. Stephens filed a brief, and the jurisdictional

matter has been referred to this panel.

       In his jurisdictional brief, Mr. Stephens claims that the collateral order

doctrine provides our jurisdiction over the order denying his TRO motion. We agree

that we have jurisdiction over that order, but for a different reason. The denial of a

TRO motion is “ordinarily not appealable,” Office of Pers. Mgmt. v. Am Fed’n of

Gov’t Emps., 473 U.S. 1301, 1303-04 (1985), but the magistrate judge recommended

that the TRO motion be treated as one for a preliminary injunction. The district court

adopted the recommendation, “fully concur[ring] in [the magistrate judge’s] findings

and conclusions.” R. at 678. Thus, we construe the district court’s order as one

denying a preliminary injunction, not a TRO. Orders denying a preliminary

injunction are immediately appealable under 28 U.S.C. § 1292(a)(1). Utah ex rel.

Utah State Dep’t of Health v. Kennecott Corp., 14 F.3d 1489, 1496 (10th Cir. 1994).

       Mr. Stephens has presented no argument, in either his jurisdictional brief or his

merits briefs, regarding our jurisdiction over the order denying his motion for


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sanctions or the order concerning the summary judgment motions. Hence, he has

failed to meet his burden to establish this court’s jurisdiction over those orders. See

United States v. Ceballos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004) (stating

that “the party claiming appellate jurisdiction bears the burden of establishing our

subject-matter jurisdiction”); see also Raley v. Hyundai Motor Co., 642 F.3d 1271,

1275 (10th Cir.) (explaining that “[i]t is the appellant’s burden, not ours, to conjure

up possible theories to invoke our legal authority to hear [an] appeal”), cert. denied,

132 S. Ct. 779 (2011); United States ex rel. Ramseyer v. Century Healthcare Corp.,

90 F.3d 1514, 1518 n.2 (10th Cir. 1996) (stating that “[o]ur duty to consider

unargued obstacles to subject matter jurisdiction does not affect our discretion to

decline to consider waived arguments that might have supported such jurisdiction”).

We therefore dismiss his appeal from those orders for failure to prosecute. We also

note that in his merits brief, Mr. Stephens has not addressed the order denying his

motion for sanctions. Thus, in addition to failing to establish appellate jurisdiction

over that order, he has forfeited appellate consideration of it. See Abercrombie v.

City of Catoosa, Okla., 896 F.2d 1228, 1231 (10th Cir. 1990) (failing to argue an

issue listed in a notice of appeal waives the issue).

III.   MERITS

       Having established that we only possess jurisdiction over Mr. Stephens’s

appeal from the district court’s denial of his TRO motion, we now turn to the merits

of that appeal. In his TRO motion, filed February 18, 2010, Mr. Stephens asked the


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court to protect his access to his legal materials “during the course of the instant and

future federal litigation,” R. at 52, based on an allegation that the WSKCC warden,

defendant Marvin Vaughn, had denied his February 10th request to store those

materials. Warden Vaughn allegedly stated that those materials “must be shipped out

on February 23, 2010.” Id. at 49 (internal quotation marks omitted). Mr. Stephens

also included conclusory allegations that DOC “prison officials have previously

taken actions to remove [his] legal materials from [his] access, upon knowledge or

notice of pending litigation,” id., and that he had been previously “transported by

DOC officials to prison facilities that have no meaningful access to the courts,” id. at

50.

      In a supplement to the TRO motion filed August 31, 2010, Mr. Stephens stated

that, on May 14, he had been transferred to the John Lilley Correctional Center, and

that the warden there granted his request to store his legal materials for ninety days.

Nonetheless, he asked the court “to issue a temporary restraining order and/or

preliminary injunction to prevent [DOC] prison officials, under supervision of the

Defendant(s), from taking actions that will result in irreparable harm to [his] right

and ability to litigate actions before the Courts.” Id. at 116. Mr. Stephens also filed

a motion to file a second supplement to his TRO motion and the second supplement.

The district court denied the motion on the ground that it sought to enlarge the

requested relief “to include other prison officials and issues relating to prison

transfers, medical care, diet concerns, misconduct ‘write-ups,’ and retaliation.” Id.


                                          -5-
at 447-48. The court noted that its ruling did not prevent Mr. Stephens from filing a

separate motion regarding these concerns. Consequently, the court struck the second

supplement because Mr. Stephens had filed it without leave of the court.

      The TRO motion was referred to a magistrate judge. In his report and

recommendation, the magistrate judge first noted that the request for a TRO was

mooted by defendants’ response to it. Therefore, the magistrate judge recommended

that the district court treat the TRO motion as one for a preliminary injunction and

deny it. The magistrate judge then reasoned that the motion was moot as to Warden

Vaughn because Mr. Stephens was no longer housed at the WSKCC. Next, the

magistrate judge concluded that the relief Mr. Stephens sought in the supplement to

his TRO motion would violate 18 U.S.C. § 3626(a)(2). In relevant part, § 3626(a)(2)

requires that, “[i]n any civil action with respect to prison conditions,” any

“[p]reliminary injunctive relief must be narrowly drawn, extend no further than

necessary to correct the harm the court finds requires preliminary relief, and be the

least intrusive means necessary to correct that harm.” Id. The magistrate judge

found that the relief Mr. Stephens requested was “an injunction throughout the

[DOC] that would prevent any undefined action that could be characterized as

‘irreparable harm.’” R. at 534. In addition, the magistrate judge observed that

Mr. Stephens was no longer housed at the John Lilley Correctional Center but had

been transferred to the Joseph Harp Correctional Center, and Mr. Stephens had not

suggested any concerns about his ability to access his legal materials there.


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Consequently, the magistrate judge concluded that Mr. Stephens had not shown the

irreparable harm necessary to justify the preliminary injunctive relief requested in his

TRO supplement.

      Over Mr. Stephens’s objection, the district court adopted the magistrate

judge’s recommendation in full and denied the TRO motion. The court added that

although Mr. Stephens attempted to narrow the requested relief in his objection, he

still had not met the requirements of § 3626(a)(2).

      As stated, we construe the order denying the TRO motion as one denying a

motion for preliminary injunctive relief. We review the denial of preliminary

injunctive relief for abuse of discretion. Gen. Motors Corp. v. Urban Gorilla, LLC,

500 F.3d 1222, 1226 (10th Cir. 2007). “A district court abuses its discretion when it

commits an error of law or makes clearly erroneous factual findings,” and “[o]ur

review of the district court’s exercise of discretion is narrow.” Id. (internal quotation

marks omitted).

      To obtain a preliminary injunction, the movant must show: “(1) a
      substantial likelihood of success on the merits; (2) irreparable harm to
      the movant if the injunction is denied; (3) the threatened injury
      outweighs the harms that the preliminary injunction may cause the
      opposing party; and (4) the injunction, if issued, will not adversely
      affect the public interest.

Id. “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief

must be clear and unequivocal.” Dominion Video Satellite, Inc. v. Echostar Satellite

Corp., 356 F.3d 1256, 1261 (10th Cir. 2004) (brackets and internal quotation marks

omitted). As a pro se litigant, Mr. Stephens’s legal filings are entitled to a liberal

                                           -7-
construction, but we do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925,

927 n.1 (10th Cir. 2008).

      In his opening appellate brief, Mr. Stephens posits that, as a pro se litigant, he

was unable to craft a more narrowly drawn request for relief. He also argues that his

request for preliminary injunctive relief was not moot, and in any event the exception

to mootness for cases capable of repetition yet evading review applies here,

apparently because he allegedly has been subject to a string of transfers designed to

interfere with access to his legal materials by virtue of a DOC restriction on the

volume of such materials a prisoner may take when transferred. He further

complains that the district court should have construed his TRO motion “as alleging

retaliatory DOC system-wide unconstitutional actions, rather than incorrectly

limiting the scope of review only to [his] residence at the filing time of the

Complaint.” Aplt. Opening Br. at 9.

      We disagree with Mr. Stephens on all counts. First, the focus of his original

TRO request was on access to his legal materials at WSKCC. That request was

undoubtedly mooted by his transfer to the John Lilley Correctional Center. “[T]he

constitutional mootness doctrine focuses upon whether a definite controversy exists

throughout the litigation and whether conclusive relief may still be conferred by the

court despite the lapse of time and any change of circumstances that may have

occurred since the commencement of the action.” Jordan v. Sosa, 654 F.3d 1012,

1024 (10th Cir. 2011) (emphasis added) (internal quotation marks omitted). A


                                          -8-
preliminary injunction directed at WSKCC prison officials would not have provided

any “conclusive relief” because Mr. Stephens was no longer housed there.1

       Furthermore, the exception for cases capable of repetition yet evading review

is inapplicable to Mr. Stephens’s original TRO motion or his supplement to it. In

part, Mr. Stephens’s insistence that this exception to mootness applies to his case

appears to be based on his misinterpretation of the magistrate judge’s

recommendation as denying the TRO motion as moot in its entirety. Although the

magistrate judge did at first state that “[t]he Court should consider the [TRO] motion

as one for a preliminary injunction and deny relief based on mootness,” R. at 532, he

later found only the initial request regarding Warden Vaughn and the WSKCC to be

moot, id. at 533-34. In any event, the exception “is a narrow one,” and “outside of

the class-action context,” it requires the movant to show that “the challenged action

was in its duration too short to be fully litigated prior to its cessation or expiration”

and that “there is a reasonable expectation that the same complaining party will be

subjected to the same action again.” Jordan, 654 F.3d at 1034-35 (emphasis added)

(alterations and internal quotation marks omitted)). As to the original TRO motion,

Mr. Stephens has made no showing of a “reasonable expectation” that he would be


1
       Although Mr. Stephens complains that defendants did not meet their burden of
showing mootness, it appears the magistrate judge took up the issue of mootness sua
sponte, which is entirely permissible. See Harris v. Ill.-Cal. Exp., Inc., 687 F.2d
1361, 1366 (10th Cir. 1982) (“Any federal court must, sua sponte, satisfy itself of its
power to adjudicate in every case and at every stage of the proceeding, and the court
is not bound by the acts or pleadings of the parties.”).


                                           -9-
subject to the same conduct at the WSKCC. Therefore, the exception to mootness for

cases capable of repetition yet evading review does not apply to his original motion.

And to the extent Mr. Stephens’s reliance on this exception to mootness hinges on his

allegations that his transfers were retaliatory, those allegations were conclusory and

therefore insufficient to show a reasonable expectation that he would be subject to

the same action in the future.

      Next, we are unconvinced that Mr. Stephens’s pro se status affected his ability

to request appropriately tailored relief in his TRO supplement. Again, the requested

relief was for the court to “issue a temporary restraining order and/or preliminary

injunction to prevent [DOC] prison officials, under supervision of the Defendant(s),

from taking actions that will result in irreparable harm to [his] right and ability to

litigate actions before the Courts.” R. at 116. In his objection to the magistrate

judge’s recommendation, Mr. Stephens argued that relief could be “narrowly drawn”

to “recover [his] confiscated legal materials,” “end prison-to-prison transfers and

DOC one cubic foot legal material limit rules,” “provide meaningful access to legal

resources, tools, time access, relevant legal-related internet information,” and “access

to DOC procedures.” Id. at 628. The district court did not abuse its discretion in

finding that granting these purportedly narrowed requests still would have run afoul

of the statutory requirements of 18 U.S.C. § 3626(a)(2) that preliminary injunctive

relief in a civil action regarding prison conditions must be “narrowly drawn” and “the

least intrusive means necessary to correct [the] harm.” The problem lies not in


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Mr. Stephens’s abilities as a pro se litigant but in the fact that he continued to seek

very broad preliminary injunctive relief based on conclusory allegations. The district

court did not abuse its discretion in finding that such an order would have been

overbroad and more intrusive than necessary.

      Finally, the district court did not err in failing to construe Mr. Stephens’s TRO

motion “as alleging retaliatory DOC system-wide unconstitutional actions, rather

than incorrectly limiting the scope of review only to [his] residence at the filing time

of the Complaint.” Aplt. Opening Br. at 9. The court did not limit the scope of

review to what occurred at the WSKCC. Instead, it noted the two transfers and

observed that Mr. Stephens had not alleged any problems at his current housing

assignment. And as noted, the court struck the second supplement to Mr. Stephens’s

TRO motion, which substantially and, in the district court’s view, impermissibly,

broadened the scope of his original TRO motion. We see no error.

IV.   CONCLUSION

      For the reasons stated, we DISMISS this appeal IN PART for failure to

prosecute and AFFIRM the district court’s denial of Mr. Stephens’s TRO motion.

We grant Mr. Stephens’s motion to proceed on appeal without prepayment of fees or

costs, and we remind him of his obligation to continue making partial payments until




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his appellate filing fee is paid in full. We deny Mr. Stephens’s motion for

appointment of counsel.


                                                 Entered for the Court


                                                 Wade Brorby
                                                 Senior Circuit Judge




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