Appellate Case: 22-1086 Document: 010110807239 Date Filed: 02/02/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 2, 2023 _________________________________ Christopher M. Wolpert Clerk of Court RUSSELL MARSHALL BOLES,
Plaintiff - Appellant,
v. No. 22-1086 (D.C. No. 1:19-CV-01158-RMR-STV) COLORADO DEPARTMENT OF (D. Colo.) CORRECTIONS; CHARLENE CROCKET; RABBI YISROEL ROSSKAMM, Rabbi; CYRUS CLARKSON,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, TYMKOVICH, and MATHESON, Circuit Judges. _________________________________
Russell Marshall Boles, a pro se prisoner, appeals from a district court order that
denied his request for preliminary injunctive relief. Exercising jurisdiction under 28
U.S.C. § 1292(a)(1), we affirm.
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-1086 Document: 010110807239 Date Filed: 02/02/2023 Page: 2
I. BACKGROUND
Mr. Boles is an inmate held by the Colorado Department of Corrections (CDOC)
at its Sterling Correctional Facility (SCF). He actively practices Orthodox Judaism.
In 2019, he filed the instant 42 U.S.C. § 1983 lawsuit against CDOC and various
prison personnel, challenging the conditions of his confinement. He complained that
CDOC failed to provide a diet that satisfies his medical and religious needs, offered
inadequate medical care,1 did not accommodate his disabilities, and unlawfully deducted
money from his prison account.
The district court denied his motion for leave to proceed in forma pauperis (ifp),
noting that as a three-strike litigant, he is subject to 28 U.S.C. § 1915(g)’s filing fee
restriction and had not satisfied the exception for cases involving imminent danger of
serious physical injury. When Mr. Boles failed to pay the filing fee in full, the district
court dismissed his case. We granted Mr. Boles ifp status on appeal and reversed the
district court, finding he had satisfied the imminent-danger exception.
On remand to the district court, Mr. Boles filed an amended complaint, naming as
defendants CDOC, the rabbi responsible for ensuring compliance with kosher standards,
a physician, a dietician, and multiple CDOC administrators, managers, and supervisors.
He asserted claims for inadequate food and medical care, disability and religious
1 Mr. Boles suffers from a variety of ailments, including sleep apnea, irritable bowel syndrome, and compressed vertebra. He “is confined to a wheelchair by disabilities.” R. at 93.
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discrimination, improperly taking money from his prison account and property from his
cell, and restricting access to legal resources.
On the Defendants’ motions, the district court dismissed much of the complaint,
leaving only claims alleging that (1) CDOC failed to accommodate Mr. Boles’s need for
a wheelchair-accessible cell, in violation of the Americans with Disabilities Act and the
Rehabilitation Act; (2) CDOC and Food/Laundry Services Administrator Charleen
Crockett failed to provide Mr. Boles an adequate kosher diet, in violation of the Religious
Land Use and Institutionalized Persons Act (RLUIPA); (3) CDOC, Ms. Crockett, and
Rabbi Yisroel Rosskamm failed to provide Mr. Boles an adequate kosher diet, in
violation of the First Amendment; and (4) Ms. Crockett and Food Service Manager Cyrus
Clarkson denied Mr. Boles kosher meals from June through December 2019, including
kosher meals for the Sukkot holiday, in violation of the First Amendment. At this point,
CDOC had moved Mr. Boles into a wheelchair-accessible cell.
In July 2021, Mr. Boles moved for a preliminary injunction “ordering [an
irrevocable] . . . wheelchair accessible cell and [a] nutritionally adequate authen[t]ic
kosher diet.” R. at 142.2 After briefing and oral argument, a magistrate judge
recommended denying Mr. Boles’s motion. Regarding a wheelchair-accessible cell, the
magistrate judge determined that Mr. Boles had failed to show irreparable harm if denied
injunctive relief because he had not identified a risk of being moved out of a wheelchair-
2 Although Mr. Boles described the relief he wanted as permanent, the district court construed his motion as seeking preliminary injunctive relief. On appeal, he agrees with that construction. See Reply Br. at 5, 11.
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accessible cell. Regarding a kosher diet, the magistrate judge concluded that Mr. Boles
was seeking to change the status quo and had not shown likely success on the merits. In
particular, the magistrate judge said (1) Mr. Boles had not demonstrated that SCF’s
kosher diet substantially burdened his religious beliefs; (2) the allegations in his affidavit
about the authenticity and nutritional content of that diet were speculative, lacking in
detail, and conclusory and (3) therefore insufficient to enable an analysis of how an
injunction would affect prison operations.
The magistrate judge warned that objections to his recommendation had to be filed
within 14 days to avoid waiver of an appeal. Mr. Boles obtained an extension of that
time period but did not file any objections. The district court accepted and adopted the
recommendation and denied Mr. Boles’s motion for a preliminary injunction. Further
facts are included below.
II. DISCUSSION
A. IFP Status
We first must address Mr. Boles’s accrual of three strikes for having brought
actions or appeals in federal court that were dismissed because they were frivolous,
malicious, or failed to state a claim for relief. See 28 U.S.C. § 1915(g). This three-
strikes provision is “applicable to indigent prisoners [and] requires so-called ‘frequent
filer’ prisoners to prepay the entire filing fee before federal courts may consider their
civil actions and appeals.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th
Cir. 2011) (brackets and quotations omitted), abrogated on other grounds by Coleman v.
Tollefson, 575 U.S. 532 (2015).
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In his application to proceed ifp on appeal, Mr. Boles argues that he qualifies for
the only exception to this filing restriction—that he “is under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g). He contends that CDOC’s kosher diet is
“fraudulent” because it is infused with additives that make it undigestible, causing bowel
dysfunction, hematuria, and bone/cartilage “degenerat[ion].” Mot. to Proceed ifp,
Addendum at 5-6.
We previously granted an ifp motion in Mr. Boles’s first appeal in this case when
he challenged the district court’s dismissal of his complaint for having three strikes and
failing to satisfy § 1915(g)’s exception. See Boles v. Colo. Dep’t of Corr., 794 F. App’x
767, 771-72 (10th Cir. 2019). There, Mr. Boles argued he required a fresh-food diet to
treat his irritable bowel syndrome and that CDOC’s refusal to provide such a diet caused
“excruciating pain” and aggravated his “degenerative bone condition.” Id. at 770-71
(quotations omitted). We concluded that Mr. Boles’s allegations were specific and
credible, noting that a pro se prisoner’s claims of “prison officials refusing to treat [the]
prisoner’s chronic condition that causes severe pain or aggravates debilitating symptoms
are enough to facially satisfy the imminent-danger exception.” Id. at 771. We found a
“sufficient nexus” between the danger Mr. Boles alleged and his claim for deliberate
indifference to his serious medical needs. Id. We therefore granted his motion to
proceed ifp on appeal, vacated the district court’s order dismissing the case, and
remanded for further proceedings. Id. at 772-73.
Although on remand Mr. Boles amended his complaint, his diet-related allegations
persist. In particular, he contends that the “[d]enial of a proper kosher food diet hurts
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both [his] religious practice and health,” contrary to his “religious and medical needs.”
R. at 74. We fail to see how Mr. Boles’s ifp status for the instant appeal differs
materially from his ifp status in the prior appeal. Indeed, when “determining if a
prisoner’s allegations are sufficient to meet the imminent-danger exception, we construe
his filings liberally and accept his well-pled allegations as true, and we require only that
his allegations facially satisfy the threshold showing that the imminent-danger exception
applies.” Boles, 794 F. App’x at 770 (citation omitted).
As in his prior appeal, Mr. Boles has identified an imminent danger to his health
that can be remedied if he prevails on his claim that his prison diet violates his
constitutional rights. See Pettus v. Morgenthau, 554 F.3d 293, 298-99 (2d Cir. 2009)
(indicating there is a sufficient nexus for ifp purposes between imminent danger and the
prisoner’s complaint when the danger of serious physical injury “is fairly traceable to
unlawful conduct asserted in the complaint and . . . a favorable judicial outcome would
redress that injury” (emphasis omitted)). We therefore conclude that Mr. Boles has
satisfied § 1915(g)’s imminent-danger exception and may proceed ifp in this appeal.3
3 Because Mr. Boles meets the § 1915(g) exception for ifp status on at least one of his claims, we need not address whether all of his claims qualify. See Chavis v. Chappius, 618 F.3d 162, 171, 172 n.7 (2d Cir. 2010) (collecting cases and observing that “[n]othing in the text of § 1915 provides any justification for dividing an action into individual claims and requiring a filing fee for those that do not relate to imminent danger”).
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B. Firm Waiver Rule
Defendants argue that this appeal should be dismissed because Mr. Boles failed to
object to the magistrate judge’s recommendation. This court’s firm-waiver rule “bars
appellate review of both factual and legal questions if a party fails to timely object to the
magistrate judge’s findings or recommendations.” Silva v. United States, 45 F.4th 1134,
1136 n.2 (10th Cir. 2022) (quotations omitted). But “[o]ne exception to the firm waiver
rule is when the interests of justice require review.” Sinclair Wyo. Refin. Co. v. A & B
Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (ellipsis and quotations omitted). This
exception implicates “such factors as a pro se litigant’s effort to comply, the force and
plausibility of his explanation for not complying and the importance of the issues raised.”
Klein v. Harper, 777 F.3d 1144, 1147 (10th Cir. 2015); see also Sinclair, 989 F.3d at
783-84 (applying the interests-of-justice exception in a counseled case). We find this
exception applicable here.
On the same day the magistrate judge issued his recommendation, the district
court appointed pro bono counsel for Mr. Boles. Nevertheless, Mr. Boles filed a pro se
motion for an extension of time to file objections to the recommendation. The district
court granted the extension and instructed that his appointed counsel should make any
further filings. But his counsel never objected to the recommendation. According to Mr.
Boles, he mailed his appointed attorneys the objections he had prepared, but they neither
filed them nor their own. Instead, on the day before the deadline, they informed him that
they did not intend to object.
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Several days after the objection deadline, the district court noted on the court’s
docket that Mr. Boles had become dissatisfied with his attorneys’ representation, and it
directed him to discuss the matter with them, with the possibility that they move to
withdraw. The next day, counsel moved to withdraw, and the district court adopted the
magistrate judge’s recommendation in full. The district court later permitted the
withdrawal. Mr. Boles, proceeding pro se, then moved for an extension of time to object
to the recommendation. When that request was denied, he sought reconsideration of the
order adopting the recommendation, which also was denied.
The foregoing shows that Mr. Boles attempted to timely object to the magistrate
judge’s recommendation but was unable to do so because of a disagreement with his
court-appointed attorneys. Further, after they withdrew from the case, Mr. Boles
continued his attempts to challenge the recommendation. Finally, Mr. Boles seeks to
raise important issues about his continuing need for a wheelchair-accessible cell and an
adequate kosher diet. We therefore decline to apply the firm-waiver rule. See Wirsching
v. Colorado, 360 F.3d 1191, 1197-98 (10th Cir. 2004) (recognizing that firm waiver rule
is not jurisdictional, and applying interests-of-justice exception where pro se party
claimed he had not received magistrate judge’s report and recommendation, had
otherwise been an attentive litigant, and had raised important issues).
C. Preliminary Injunctive Relief
“[A] preliminary injunction is an extraordinary remedy never awarded as of
right.” See Benisek v. Lamone, --- U.S. ---, 138 S. Ct. 1942, 1943 (2018) (quotations
omitted). “[I]t is the exception rather than the rule.” Harmon v. City of Norman, 981
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F.3d 1141, 1146 (10th Cir. 2020) (quotations omitted). To obtain a preliminary
injunction, plaintiffs must show “(1) they are substantially likely to succeed on the
merits of their claims, (2) they will suffer irreparable harm if the injunction is denied,
(3) their threatened injury without the injunction outweighs any harm to the party
opposing the injunction, and (4) the injunction, if issued, is not adverse to the public
interest.” Id. “Because a preliminary injunction is an extraordinary remedy, the
movant’s right to relief must be clear and unequivocal.” Diné Citizens Against
Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (quotations
omitted)..
We review the district court’s denial of a preliminary injunction for abuse of
discretion. See Benisek, 138 S. Ct. at 1943, 1945; Diné Citizens, 839 F.3d at 1281.
“A district court’s decision crosses the abuse-of-discretion line if it rests on an
erroneous legal conclusion or lacks a rational basis in the record.” Courthouse News
Serv. v. N.M. Admin. Off. of Cts., 53 F.4th 1245, 1254 (10th Cir. 2022) (quotations
omitted). “[W]e thus examine the court’s factual findings for clear error and its legal
conclusions de novo.” Id. at 1255 (quotations omitted).4
4 We note that Mr. Boles’s remaining claims survived a motion to dismiss and that the Defendants have not moved for, and therefore the district court has not decided, a motion for summary judgment under Federal Rule of Civil Procedure Rule 56, so we remand to the district court for further proceedings.
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Wheelchair-Accessible Cell
The district court determined that Mr. Boles had failed to show he would be
irreparably harmed without a preliminary injunction barring his removal from a
wheelchair-accessible cell. We discern no abuse of discretion.
Irreparable harm requires a risk that the applicant will suffer great harm from the
denial of an injunction. Colorado v. EPA, 989 F.3d 874, 884 (10th Cir. 2021). The risk
of “injury must . . . be of such imminence that there is a clear and present need for
equitable relief to prevent irreparable harm.” Id. (quotations omitted). “[S]peculative or
theoretical injury will not suffice.” Id. Rather, the risk that the harm will occur must be
“significant,” if not “certain.” Id. (quotations omitted).
As noted above, SCF moved Mr. Boles to a wheelchair-accessible cell. As the
magistrate judge explained, Mr. Boles failed to identify evidence that prison officials had
threatened to move him out of a wheelchair-accessible cell. Instead, he asserted it is
possible he might be moved because there are more wheelchair-bound inmates than
wheelchair-accessible cells, his cell is in a “transition unit,” and his cell is in a pod
“slated for conversion to a kitchen worker pod.” R. at 251 (quotations omitted). On
appeal, Mr. Boles argues “there is a lot of room to disagree” with the magistrate judge’s
conclusion regarding imminent harm, but he provides few details. Opening Br. at 7. He
complains there are “collateral injuries . . . imposed on him for every little inch gained,”
but he does not explain what they are or how they relate to his retention of a wheelchair-
accessible cell. Id. at 5; see also id. at 8.
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“Although a pro se litigant’s pleadings are to be construed liberally and held to a
less stringent standard than formal pleadings drafted by lawyers, . . . the court cannot take
on the responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005) (brackets and quotations omitted). Because Mr. Boles has not
adequately shown he is in imminent danger of being moved from a wheelchair-accessible
cell, he has failed to satisfy the irreparable-harm element necessary for a preliminary
injunction. The district court did not abuse its discretion in denying that relief. See EPA,
989 F.3d at 884 (stating that “irreparable injury . . . [is] the single most important
prerequisite for the issuance of a preliminary injunction” (quotations omitted)).
Kosher Diet
Mr. Boles requested a preliminary injunction requiring that SCF’s kosher meals
better conform to kosher standards,5 or alternatively, that kosher meals be supplied by a
catering company. Given that Mr. Boles sought to change the status quo, the magistrate
5 In his motion, Mr. Boles suggested that SCF’s “[k]osher food might . . . be acceptable if it were essentially the same as mandated or agreed in” Beerheide v. Suthers, 286 F.3d 1179 (10th Cir. 2002). R. at 102-03. In Beerheide, this court affirmed the district court’s decision that the First Amendment required CDOC to make a kosher diet available to Orthodox Jewish prisoners, and at no cost. 286 F.3d at 1182, 1184. Beerheide is distinguishable. It was an appeal by CDOC following a trial that ended in the prisoner-plaintiffs’ favor requiring CDOC to offer a free kosher diet. In contrast, Mr. Boles has brought an interlocutory appeal from the denial of a preliminary injunction. Also, SCF offers a kosher diet (albeit alleged to be insufficient), and SCF does not charge a fee for the diet. Mr. Boles does not explain how Beerheide applies here.
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judge correctly observed that he had to “make a strong showing . . . on the likelihood of
success on the merits,” id. at 883-84 (quotations omitted). To show a likelihood of
success on his First Amendment and RLUIPA claims, he had to make a strong showing
that SCF’s kosher diet is substandard.
The magistrate judge found Mr. Boles’s general allegations to be unsupported and
insufficient to show likelihood of success on the merits. In particular, the magistrate
judge observed that Mr. Boles offered no evidence to support his claim other than his
own affidavit, which was conclusory, “based upon hearsay, and/or relate[d] to food
preparation generally and not to SCF’s compliance with Plaintiff’s firmly held religious
beliefs.” R. at 254-55 (footnote omitted). And although Mr. Boles included more
allegations in his briefs, the magistrate judge noted that Mr. Boles’s briefing “was not
submitted under penalty of perjury” and his “assertions [were] conclusory, not based
upon personal knowledge, and/or based upon hearsay for which Plaintiff has provided no
information to substantiate its reliability.” R. at 256.
On appeal, Mr. Boles offers no convincing argument that the magistrate judge
abused his discretion. Instead, he advances some of the same broad and conclusory
assertions he made in the district court, including that “[n]o one knows how to clean to
kosher standards” and SCF’s kosher diet contains “difficult (or impossible) to digest
food-like substances.” Opening Br. at 18. Although he maintains that “[t]he CDOC
kosher guidelines [prepared by Rabbi Rosskamm] are a subversion of Jewish law,” he
offers no support other than to broadly assert that “[a] comparison of [the Shulchan
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Aruch6 and the guidelines] clearly reveals that the CDOC version of kosher is not
kosher.” Id. at 19. And while he claims that “ordinary public media . . . support[s] the
glaring fact [that] the CDOC version of a kosher diet is not only not kosher but does not
and cannot supply adequate nutrition,” id. at 20, he does not identify a source of
information that would allow us to assess whether SCF’s diet fails to meet Kosher
standards.
Preliminary injunctive relief requires evidentiary support. See Prairie Band of
Potawatomi Indians v. Pierce, 253 F.3d 1234, 1246 (10th Cir. 2001); 11A Charles A.
Wright & Arthur R. Miller, Federal Practice & Procedure § 2949 (2d ed. 2012)
(“Evidence that goes beyond the unverified allegations of the pleadings[7] and motion
papers must be presented to support or oppose a motion for a preliminary injunction.”).
Mr. Boles’s bare allegations are not a substitute for evidence and do not constitute “a
strong showing . . . with regard to [his] likelihood of success on the merits.” McDonnell
v. City & County of Denver, 878 F.3d 1247, 1252 (10th Cir. 2018) (emphasis added;
quotations omitted).
6 The Shulchan Aruch is “a compellation of Jewish laws of the Orthodox Hasidic tradition.” Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 138 F. Supp. 3d 352, 371 (S.D.N.Y. 2015), aff’d in part, rev’d in part, and vacated in part, 945 F.3d 83 (2d Cir. 2019). 7 Although Mr. Boles “affirm[ed] everything in th[e] complaint is true and accurate,” R. at 81, it was not verified. See Goodman v. Diggs, 986 F.3d 493, 495 (4th Cir. 2021) (“A complaint is ‘verified’ if it is signed, sworn, and submitted under penalty of perjury.” (quotations omitted)).
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In particular Mr. Boles needed to identify evidence showing the inadequacy of
SCF’s kosher meals, see Gallagher v. Shelton, 587 F.3d 1063, 1070 (10th Cir. 2009)
(First Amendment free exercise claim); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1321
(10th Cir. 2010) (RLUIPA); id. at 1325 (Gorsuch, J. concurring). He did not do so.
Again, “the court cannot take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Garrett, 425 F.3d at 840.
Because Mr. Boles failed to make a strong showing of deficiencies in SCF’s
kosher diet, he failed to satisfy the likelihood-of-success-on-the-merits element necessary
for a preliminary injunction. The district court did not abuse its discretion in denying that
relief.8
8 We review only whether the district court abused its discretion in denying Mr. Boles’s request for a preliminary injunction. Mr. Boles has a heavier burden to secure this “extraordinary remedy,” Benisek, 138 S. Ct. at 1943, than to avoid dismissal of this suit. See New Hope Fam. Servs., Inc. v. Poole, 966 F.3d 145, 165 (2d Cir. 2020) (there is a “heavier burden” for a plaintiff to secure a preliminary injunction than to “plead[] the plausible claim necessary to avoid dismissal”); compare Diné Citizens, 839 F.3d at 1281 (“[T]o receive a preliminary injunction, the plaintiff must establish . . . a substantial likelihood of prevailing on the merits” and the plaintiff’s “right to relief must be clear and unequivocal.” (quotations omitted)), with Sinclair Wyo. Ref. Co., 989 F.3d at 765 (in reviewing a Rule 12(b)(6) dismissal de novo, “[w]e accept all well-pleaded factual allegations in the complaint as true” and “view them in the light most favorable to the nonmoving party” (quotations and alterations omitted)). We express no view on whether Mr. Boles may overcome a motion for summary judgment or succeed at trial after this case returns to the district court.
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III. CONCLUSION
We grant Mr. Boles’s motion for leave to proceed ifp. We affirm the district
court’s judgment and remand.
Entered for the Court
Scott M. Matheson, Jr. Circuit Judge