                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   October 6, 2009
                                                                  Elisabeth A. Shumaker
                          FOR THE TENTH CIRCUIT                       Clerk of Court



    JOSE MEDINA ESCOBAR,

              Plaintiff-Appellant,

    v.                                                 No. 08-1474
                                          (D.C. No. 1:06-CV-01222-CMA-KLM)
    L. REID; K. COOPER; E. CELLA;                       (D. Colo.)
    T. HAUCKS; E. PERRY;
    D. GALLAGHER; SGT. BINDER;
    C/O VALDEZ; J. BROWN; J. SIMS;
    E. DICLUSION; E. MORA;
    A. LUNA; R. WENCL;
    J. WERMERS; R. OLIVETT;
    C/O JACKSON; L. MONTOYA;
    C/O BALL; JOHN DOW;
    LT. PAULINO; C/O RAYMOND;
    C/O SANTOS; SGT. D. SMITH;
    C/O WILLIAMS; CAPTAIN
    MIKLICH; LT. MATHEWS;
    SGT. OATES; C/O COLTON;
    C/O HAMULA; C/O WOOLFOLK;
    DR. CRANEY; NURSE RITA,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.



      Jose Medina Escobar, a Colorado state prisoner, filed an interlocutory

appeal in connection with his 42 U.S.C. § 1983 lawsuit against Colorado prison

officials and employees. We affirm the district court’s denial of Escobar’s

motion for a preliminary injunction and dismiss the remainder of the appeal for

lack of jurisdiction.

                                  I. Background

      Escobar’s amended civil-rights complaint alleges that numerous individuals

in the Colorado prison system violated his constitutional rights in various ways.

His filing describes incidents of physical and mental abuse, harassment, excessive

force, threats, slander, discrimination, assault with human waste matter, denial of

adequate medical attention, retaliation for exercise of his legal rights, destruction

of his belongings, contamination of his food, interference with his legal mail and

materials, and confinement with inmate enemies.

      In a motion for a temporary restraining order or preliminary injunction and

a similar motion to compel, Escobar sought an order enjoining correctional

officials from engaging in the alleged behavior. He also asked for leave to

introduce an additional supplemental complaint. After holding an evidentiary

hearing, the magistrate judge recommended denial of Escobar’s motions. Escobar

objected to the recommendation. The district court conducted a de novo review

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of the issues and accepted the magistrate judge’s recommendation. Escobar then

filed an interlocutory appeal of the district court’s decision. The underlying

litigation is proceeding in district court.

                                    II. Discussion

Jurisdiction

      Absent certain limited exceptions, “federal appellate courts have

jurisdiction solely over appeals from ‘final decisions of the district courts of the

United States.’” Rekstad v. First Bank Sys., Inc., 238 F.3d 1259, 1261 (10th Cir.

2001) (quoting 28 U.S.C. § 1291) (emphasis deleted). A final decision is one that

“ends the litigation on the merits and leaves nothing for the court to do but

execute the judgment.” Id. (quotation omitted). The district court has not yet

entered a final decision regarding Escobar’s case.

      We have jurisdiction, however, to review the denial of his request for a

preliminary injunction. See 28 U.S.C. § 1292(a)(1) (“[T]he courts of appeals

shall have jurisdiction of appeals from . . . [i]nterlocutory orders of the district

courts of the United States . . . refusing . . . injunctions”). But to the extent

Escobar seeks to challenge the district court’s denial of the motion to supplement

his complaint or any other interlocutory ruling, we lack jurisdiction over his

appeal.




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Preliminary Injunction

      We review a district court’s denial of a preliminary injunction for abuse

of discretion, which occurs when “it commits an error of law or makes clearly

erroneous factual findings.” Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d

1222, 1226 (10th Cir. 2007) (quotation omitted). “Our review of the district

court’s exercise of discretion is narrow and the merits . . . may be considered on

appeal only insofar as they bear on the issue of judicial discretion.” Id.

(quotations and citation 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 harm that the

preliminary injunction may cause the opposing party; and (4) the injunction, if

issued, will not adversely affect the public interest.” Id. “Because a preliminary

injunction is an extraordinary remedy, the right to relief must be clear and

unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256

(10th Cir. 2003).

      In recommending denial of Escobar’s request, the magistrate judge first

noted that the mandatory relief sought by Mr. Escobar was disfavored in that it

attempted to alter the status quo and a grant of his motion would provide him

with “all the relief that [he] could recover at the conclusion of a full trial on the

merits” of his civil-rights action. Schrier v. Univ. of Colo., 427 F.3d 1253, 1259

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(10th Cir. 2005) (listing “specifically disfavored preliminary injunctions” and

stating that requests for disfavored relief “must be more closely scrutinized to

assure that the exigencies of the case support the granting of a remedy that is

extraordinary even in the normal course”) (quotations omitted). The magistrate

judge also reiterated the well-established principle that “prison officials’

exercises of discretion should generally be respected, as federal courts ought to

afford appropriate deference and flexibility to state officials trying to manage a

volatile environment.” Wilson v. Jones, 430 F.3d 1113, 1123 (10th Cir. 2005)

(quotation omitted).

          Although the magistrate judge acknowledged that Escobar’s allegations

were serious, she determined that, at the preliminary injunction stage, Escobar

had not shown that he was incarcerated under circumstances giving rise to a

substantial risk of serious harm. As a result, Escobar had not demonstrated a

likelihood of success on the merits of his civil-rights claims. Without evaluating

the remaining factors, the magistrate judge recommended denial of Escobar’s

request. In its review, the district court “concluded that the Magistrate Judge’s

thorough and comprehensive analyses and recommendations are correct.”

R., Vol. 1 at 471. It therefore accepted the recommendation and denied injunctive

relief.

          After reviewing the record on appeal, we conclude the district court did not

abuse its discretion in denying Escobar’s request. Although Escobar’s allegations

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of mistreatment are serious, at this stage his conclusory statements do not

demonstrate a likelihood of success on the merits of his case.

      The order of the district court denying Escobar’s request for preliminary

injunction is AFFIRMED. The remainder of his appeal is DISMISSED for lack of

jurisdiction. Escobar’s motion to introduce an affidavit regarding his present

status is DENIED, in that the affidavit is not part of the district-court record.

See Nulf v. Int’l Paper Co., 656 F.2d 553, 559 (10th Cir. 1981) (“Matters not

appearing in the record will not be considered by the court of appeals.”).



                                                      Entered for the Court


                                                      Timothy M. Tymkovich
                                                      Circuit Judge




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