Aurelio v. Smith et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-01984-CNS-KAS
NICHOLAS AURELIO,
Plaintiff,
v.
NICOLE SMITH,
MISTY ZADE,
JANE GILDEN,
VANI RUSSELL, and
NICHOLAS HOOVER,
Defendants.
_____________________________________________________________________
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction
[#16], to which Defendants filed a Response [#34] and Supplemental Response [#56] and
Plaintiff filed a Reply [#55] and Supplemental Reply [#60]; Plaintiff’s Motion to the
Honorable Charlotte N. Sweeney for a Status on Personal Service on Defendant
Jane Gilden and for an Expedited Ruling on Plaintiff’s Motion for a Preliminary
Injunction [#62], to which Defendants filed a Response [#68] and Plaintiff filed a Reply
[#69]1; Plaintiff’s Second Motion to the Honorable Charlotte N. Sweeney Requesting
an Expedited Ruling on Plaintiff’s Motion for a Preliminary Injunction (ECF NO. 16)
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1 The United States Marshal Service served Defendant Jane Gilden on November 13, 2025.
Summons [#79]. Accordingly, to the extent Plaintiff’s Motion to the Honorable Charlotte N.
Sweeney for a Status on Personal Service on Defendant Jane Gilden and for an Expedited Ruling
on Plaintiff’s Motion for a Preliminary Injunction [#62] relates to service of process on Defendant
Gilden, the Court should deny it as moot.
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[#72], to which Defendants filed a Response [#76] and Plaintiff filed a Reply [#81]; and
Plaintiff’s Motion for Sanctions Against CDOC Defendants and Opposing Counsel
Heather K. Rhea and Evan P. Brennan [#83], to which Defendants filed a Response
[#88].2 Each Motion has been referred to the undersigned.3 Memoranda [#17, #77, #85].
The Court has reviewed the Motions [#16, #62, #72, #83], the entire case file, and the
applicable law. For the foregoing reasons, the Court RECOMMENDS the Motions [#16,
#62, #72, #83] be DENIED.
I. 	Background
Plaintiff, proceeding pro se, filed this action against Defendants under 42 U.S.C.
§ 1983, asserting an Eighth Amendment claim for deliberate indifference to his serious
medical needs. Compl. [#1]. He has remained incarcerated with the CDOC since
September 2013 and is currently held at the Colorado Territorial Correctional Facility
(“CTCF”). Id. at 7. Relevant to the present Motion, Plaintiff alleges that Defendants
violated 	his 	Eighth 	Amendment 	rights 	by 	delaying 	or 	denying 	medical 	care 	for
photophobia. Id. at 6-15. This condition causes numerous symptoms, including chronic
migraines, light sensitivity, eye irritation and dryness, temporarily diminished vision,
________________________
2 Plaintiff also filed a Status Motion and Request for a Court Order [#75]. In his subsequent Reply
[#89], Plaintiff requested to withdraw this Motion [#75]. Reply [#89], ¶ 23.
3 Pursuant to the July 9, 2025 Order Referring Case [#12], this civil action was referred to the
Magistrate Judge to, inter alia, “hear and determine pretrial matters, including discovery and other
non-dispositive motions, and “submit proposed findings of fact and recommendations for rulings
on dispositive motions.” The Court finds a recommendation is appropriate here because the
nature of the matter is dispositive. See Martinez v. Ortiz, No. 05-cv-00138-WYD-BNB, 2006 WL
771326, at *1 (D. Colo. Mar. 27, 2006) (affirming recommendation to deny preliminary injunction
motion); see also Marsh v. Parsons, No. 09-cv-00487-PAB-MJW, 2010 WL 965516, at *1 (D.
Colo. Mar. 15, 2010) (“[M]otions for preliminary injunction are generally treated as dispositive
motions[.]”).
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myokymia, blurry vision, dizziness, neck and back pain, eye fluttering, loss of peripheral
vision, and sound sensitivity. Id. at 6-7.
In June 2024, an eye doctor examined Plaintiff and determined he must wear tinted
eyeglasses indoors and outdoors due to his photophobia. Id. at 9-10. The doctor also
advised Plaintiff to consult an eye specialist to address the appropriate lenses and safety
measures for his condition. Id. at 10. The doctor prescribed eyeglasses, which Plaintiff
received the following month. Id. However, the eyeglasses had the wrong prescription
and lacked any tint. Id.
Between July 2, 2024 and October 25, 2024, Plaintiff exhausted his administrative
remedies related to his requests to see an eye specialist and obtain proper eyeglasses
for his condition. Id. at 12-13. At the time Plaintiff filed his Complaint and his initial Motion
for Preliminary Injunction [#16], he had neither seen an eye specialist nor received a new
pair of eyeglasses.
Through the instant Motions, Plaintiff asks the Court to order Defendants to
immediately schedule an appointment with an optometrist, ophthalmologist, or neuro-
ophthalmologist; provide state-issued tinted prescription eyeglasses for reading; provide
state-issued tinted prescription sunglasses with side shields; impose a bottom-bunk
restriction; and provide adequate medication. Motion [#16] at 2. Defendants respond that
Plaintiff has already received the requested relief and argue the Motion is therefore moot.
Response [#34].
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II. 	Applicable Law
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. Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Because the primary goal of a preliminary
injunction is to preserve the pre-trial status quo, courts should be especially cautious
when granting an injunction that requires the nonmoving party to take affirmative action—
a mandatory preliminary injunction—before a trial on the merits occurs. O Centro Espirita
Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1177 (10th Cir. 2003). Thus,
a movant requesting such an injunction must make a heightened showing of the four
factors. Id. This requirement seeks to “minimize any injury that would not have occurred
but for the court’s intervention.” Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769,
776 (10th Cir. 2009) (citation omitted). Mandatory preliminary injunctions are traditionally
disfavored, Schrier v. Univ. of Colo., 427 F.3d 1253, 1258–59 (10th Cir.2005), unless the
moving party demonstrates that the “exigencies of the case require extraordinary interim
relief.” Tuttamore v. Lappin, 429 F. App’x 687, 692 (10th Cir. 2011) (citation omitted).
III. 	Analysis
A. 	Motions for Preliminary Injunction
1. 	Recent Events
Plaintiff seeks an Order from the Court directing Defendants to schedule an
appointment with an eye specialist, provide eyeglasses appropriate for his medical
condition, prescribe necessary medication, and assign a bottom-bunk restriction. See
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Motions [#16, #62, #72, #75]. In their initial Response [#34], Defendants explained that
they had already approved Plaintiff’s request for a bottom-bunk restriction. Response
[#34] at 3; Pl.’s Records [#37-3] at 3. Defendants also stated that on July 18, 2025,
Provider Barbara Franklin submitted a consultation request for Plaintiff to receive an
evaluation from an off-site ophthalmologist. Response [#34] at 3.
In a subsequent Response, Defendants advised the Court that Plaintiff saw Dr.
Kevin May, an ophthalmologist, on December 19, 2025. Response [#87], ¶ 3. Dr. May
explained that to treat Plaintiff’s photophobia and dry eye syndrome, he recommended
glasses and sunglasses to reduce light sensitivity, as well as artificial tears. Defs.’ Ex. A,
Dr. May Visit Notes [#87-1] at 2-3. Specifically, Dr. May recommended dark, polarized,
wraparound glasses for outdoor use and rose-tinted lenses for indoor use. Id. at 3. Dr.
May informed Plaintiff that he would not order the prescription eyeglasses because the
CDOC bore that responsibility. Motion [#75], ¶ 11.
Plaintiff acknowledges that he received the recommended eye drops and that
CTCF staff are attempting to order the prescribed eyeglasses. Reply [#89], ¶¶ 7-23. The
parties have experienced a delay because Dr. May’s Visit Notes and/or eyeglass
prescription lack some required information. Id., ¶¶ 7-9, 12-17. As a result, Plaintiff
expects to see the CTCF optometrist during the first week of February 2026 to obtain the
missing information. Id., ¶¶ 9, 19, 22. Plaintiff states that once he receives the two new
pairs of eyeglasses, his request for a mandatory preliminary injunction will become moot.
Id., ¶ 23.
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2. 	Status of Preliminary Injunction Request
The parties do not dispute that CTCF scheduled Plaintiff for an appointment with
an eye specialist, granted him a bottom-bunk restriction, and provided prescription eye
drops. Based on these 	actions, Defendants 	contend that 	Plaintiff’s 	request for a
preliminary injunction is moot because he has received the relief he sought. Defendants
specifically argue that the request became moot when Provider Franklin submitted a
consultation request for Plaintiff to receive an off-site ophthalmology evaluation and
Plaintiff received a lower bunk restriction. Response [#34] at 5-6. Plaintiff responds that
his request is not moot because he has not yet received his eyeglasses. Reply [#89], ¶
23.
A claim for injunctive relief becomes moot when the plaintiff’s continued risk of
harm is no longer “reasonably certain” or rests on “speculation and conjecture.” Smith v.
Becerra, 44 F.4th 1238, 1247 (10th Cir. 2022). “If a defendant has carried out the action
that a plaintiff sought to compel through an injunction, then the claim for injunctive relief
is moot.” Jabarah v. Patel, No. 21-cv-01047-NYW-NRN, 2025 WL 794398, at *5 (D. Colo.
Mar. 13, 2025) (quoting Church v. Polis, No. 20-1391, 2022 WL 200661, at *4 (10th Cir.
Jan. 24, 2022)) (brackets omitted). A claim for injunctive relief also becomes moot if no
reasonable likelihood exists that the injunction would produce further changes. Id.
The Court need not decide when Plaintiff’s request became moot, only that it is
moot now. Plaintiff acknowledges that Defendants have satisfied every request except
the eyeglasses, which remain delayed due to a third-party omission rather than any action
or inaction by Defendants. Any concern that Defendants might halt compliance with Dr.
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May’s treatment recommendations rests entirely on speculation and conjecture. See
Jabarah, 2025 WL 794398, at *5. Nothing in the record supports such a concern.
Defendants have taken every step within their control to provide Plaintiff with
appropriate eyewear. An order from the Court would not produce additional relief.
Accordingly, the Court finds Plaintiff’s request for a preliminary injunction is moot and
should be denied without prejudice.
B. 	Motion for Sanctions
Plaintiff seeks sanctions against Defendants under Federal Rule of Civil Procedure
11 based on their argument that his request for a preliminary injunction is moot. Motion
[#83], ¶¶ 3, 4, 6. Plaintiff contends that the argument is false and frivolous because, when
he filed his Motion, he had not received appropriate eyeglasses or prescribed eye drops.
Id., ¶ 6.4
Rule 11 requires a party seeking sanctions to serve the motion under Federal Rule
of Civil Procedure 5 but prohibits filing or presenting the motion to the court if the
challenged paper, claim, defense, contention, or denial is withdrawn or appropriately
corrected within 21 days after service or within another time the court sets. FED. R. CIV .
P. 11(c)(2); see also Roth v. Green, 466 F.3d 1179, 1192 (10th Cir. 2006) (explaining that
Rule 11 requires a party to serve “a copy of the actual motion for sanctions . . . at least
twenty-one days prior to the filing of that motion”). This “safe harbor” provision gives the
offending party 	an opportunity 	to 	withdraw 	the 	challenged 	pleading 	without 	court
involvement. Roth, 466 F.3d at 1192 (quoting 5A CHARLES A LAN W RIGHT & A RTHUR R.
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4 As noted above, Plaintiff subsequently received eye drops. Reply [#89], ¶ 3.
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MILLER, FEDERAL P RACTICE AND P ROCEDURE § 1337.2 at 722 (3d ed. 2004)). Courts in the
Tenth Circuit strictly enforce the safe-harbor provision. Dowling v. Gen. Motors LLC, 333
F.R.D. 534, 538 n.5 (D. Colo. 2019); see also Roth, 466 F.3d at 1192-93 (rejecting the
argument that Rule 11 permits substantial rather than strict compliance).
Plaintiff does not indicate in his Motion that he served Defendants with the Motion
21 days before filing it with the Court, and Defendants deny that he did so. Response
[#88] at 3-4. Because Plaintiff failed to comply with Rule 11’s safe-harbor provision, the
Court should deny the Motion for Sanctions.5
IV. 	Conclusion
Based on the foregoing,
The Court RECOMMENDS that Plaintiffs’ Motions [#16, #62, #72, #83] be DENIED
to the extent they seek a preliminary injunction.
IT 	IS 	FURTHER 	RECOMMENDED 	that 	Plaintiff’s 	Motion 	to 	the 	Honorable
Charlotte N. Sweeney for a Status on Personal Service on Defendant Jane Gilden and
for an Expedited Ruling on Plaintiff’s Motion for a Preliminary Injunction [#62], to the
extent it relates to service of process on Defendant Gilden, be DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff’s Status Motion and Request for a
Court Order [#75] is WITHDRAWN.
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5 Based on this determination, the Court need not address Plaintiff’s contention that Defendants’
argument was false and frivolous. Notably, because the Court has concluded that Plaintiff’s
request for a preliminary injunction is moot, Plaintiff’s request for sanctions likely also fails on the
merits.
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IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Federal Rule of Civil Procedure
72(b)(2) provides that, “within 14 days after being served with a copy of the recommended
disposition, a party may serve and file specific written objections to the proposed findings
and recommendations. A party may respond to another party’s objections within 14 days
after being served with a copy.” “[A] party’s objections to the magistrate judge's report
and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” United States v. 2121 E. 30th St., 73
F.3d 1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court's attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: February 12, 2026 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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